Sedition Act not enacted by Parliament is invalid, says Counsel

Counsel Datuk Malik Imtiaz Sarwar submitted that the Sedition Act, a pre-Merdeka law, originally known as the Sedition Ordinance 1948, was enacted by the Legislative Council.

He said the Sedition Act was incapable of being modified to bring it into accord with the Federal Constitution and thus, the Act became void upon establishment of the Federal Constitution.

He said only Parliament was empowered to enact laws which restricted freedom of expression as it was vested with the exclusive right to do so by the Federal Constitution.

"The Yang di-Pertuan Agong does not have the authority in law to modify the Sedition Ordinance. His Majesty's authority to modify laws under Article 162 (4) of the Federal Constitution must be understood as not encompassing existing laws restricting the freedom of expression," added Malik.

He was representing Universiti Malaya associate law professor Dr Azmi Sharom who is challenging the constitutionality of the Sedition Act.

The Federal Court's five-member panel comprising Chief Justice Tun Arifin Zakaria, Court of Appeal President Tan Sri Md Raus Sharif, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin and Federal Court judges Tan Sri Abdull Hamid Embong and Tan Sri Suriyadi Halim Omar heard the matter which was referred to it (the Federal Court) by the High Court for determination of two constitutional questions.

Azmi, 46, is facing a principle charge and an alternative charge in the Sessions Court under Section 4(1)(b) and Section 4(1)(c) of the Act, respectively over his comments in a news article titled 'Take Perak crisis route for speedy end to Selangor impasse, Pakatan told', on Aug 15, last year.

Both offences carry a maximum fine of RM5,000 or jail up to three years, or both upon conviction. Solicitor-General I Datuk Tun Abdul Majid Tun Hamzah argued that the Sedition Act was a valid law and enforceable under the Federal Constitution.

Tun Abdul Majid said although the Sedition Act was not a law made by Parliament, it must nevertheless, be construed to have been made by Parliament.

He said, as of Merdeka Day up to June 27, 1959, Parliament was yet to exist and thus, all laws enacted even on Merdeka Day in 1957 until Sept 11, 1959 when Parliament was first summoned, were not enacted by Parliament.

Tun Abdul Majid said the Sedition Ordinance was an existing law and continued to be in force on and after Merdeka Day, with modifications deemed necessary by the Yang diPertuan Agong.

"The Sedition Ordinance was modified several times to make the provisions into accord with the provisions of the Federal Constitution. The Sedition Act 1948 is deemed to be the sole and proper law in respect of matters on the offence of sedition," he said.

He said although not literally enacted by Parliament, the Sedition Act had received a stamp of constitutional approval by the Parliament.