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“The principles, institutions and procedures, not always identical, but broadly similar, which the experience and traditions of lawyers in different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be important to protect the individual from arbitrary government and to enable him to enjoy the dignity of man.”[90]

Another articulation of the rule of law is that of P. Sieghart:[91]

“the rule of law, the principle which requires that there should be laws which lay down what the state may and may not do and by which one can test whether such power which it claims, or any particular exercise of such power is legitimate and a system of courts independent of every other institution of the state, including the legislators and the executive, which interprets and applies those laws.”[92]

The principles governing the legality of penal statutes are an integral part of the rule of law. Nullum crimen sine lege, Nullum Poena sine lege - that there can be no crime or punishment except in accordance with fixed predetermined laws is a basic principle of justice and is a component of the rule of law. Professor Glanville Williams in Criminal Law (General Part), 2nd ed. (1961)[93] identifies four facets of this principle developed by the common law: certainty, accessibility, non-retroactivity and strict compliance. These principles are determinative of the legality of penal laws. Mr. Justice (later Chief Justice) Lamer of the Supreme Court of Canada, expressed the importance of these principles to a free and democratic society:

“The principles expressed in these two citations are not new to our law. In fact they are based on the ancient Latin Maxim nullum crimen sine lege, nulla poena sine lege --that there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The rationale underlying this principle is clear. Is essential in a free and democratic society that citizens are able, as far as possible, to foresee the consequences of their conduct, in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited to clear and explicit legislative standards.”[94]

“A law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute.”[100]

The language of the Sedition Act as interpreted by Malaysian courts has created a standardless sweep providing government with unbridled discretion and affording citizens no fair notice. The offences created by the Sedition Act do not meet the common law tests for legality based on certainty. The vagueness of Malaysia’s sedition law potentially criminalizes all but the most sycophantic of comments on issues of public concerns.

Prior to September 10, 1999 it was apparently not seditious under Malaysian law to express concern about Anwar Ibrahim’s in-cusody treatment. In September of l998, news that Anwar Ibrahim had been severely injured while in custody was greeted with outrage and demands for a public inquiry from lawyers and private citizens like. These demands resulted first in an inconclusive internal police inquiry and finally, in January of l999, a Royal Commission of Inquiry. The Royal Commission of Inquiry established that Anwar Ibrahim’s beating had been potentially life threatening, administered by Abdul Rahim Noor, then the Chief of Police for Malaysia, and carried out while Anwar was in his cell, blindfolded and handcuffed. There was never a suggestion that these expressions of concern that Anwar had been beaten by ‘people in high places’ could be considered seditious. 

In September 1999 Mr Singh, alarmed by a report that Anwar Ibrahim’s arsenic levels were dangerously high, called for an inquiry into his client’s health. Mr. Singh was duty bound to bring to the court’s attention the concern that his client’s life, while in custody, might again be in jeopardy. Based on what had occurred the previous year there was no way for Karpal Singh to know that his actions would be deemed seditious. Reference to the repeated calls for an inquiry into Anwar Ibrahim’s maltreatment at the hands of people in authority that were made a year earlier indicate that there was no Malaysian law that prohibited Mr. Singh from doing so. A conviction on this sedition charge would therefore require the trial judge to retroactively create a penal offence, for conduct which only a year before was acceptable and indeed had been necessary to bring to public attention a gross abuse of human rights.

As discussed above, the Sedition Act creates an absolute liability offence upon proof that an accused uttered a statement with a seditious tendency. The intention of the accused in making his or her statement is irrelevant.[103] A conviction can result in a maximum three-year term of imprisonment.[104]                                             

Based on the principle, actus non facit reum nisi mens sit rea, the Sedition Act violates the principles of fundamental justice and the right to liberty of the person in creating an absolute liability offence of sedition with potential for imprisonment.

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