LAWYERS AND THE RULE OF LAW ON TRIAL: SEDITION IN MALAYSIA
An analysis of Malaysia’s Sedition Act
Gail Davidson, Tami Friesen and Michael Jackson, Q.C.
LAWYERS RIGHTS WATCH CANADA
The Sedition Act seeks to limit and control freedom of expression far beyond what is permissible under international law. The Sedition Act must be given a narrow interpretation having regard to the particular rights at issue, namely freedom of speech and expression and liberty of the person, and the purpose of the restriction. The purpose for restricting speech under the Sedition Act is protection of national security. However, according to international human rights law, as freedom of expression is fundamental to a functioning democracy, it can be restricted only with regard to serious threats to national security. The exercise of the right to freedom of expression cannot be punished on the basis that a statement might possibly jeopardize national security. The statements allegedly made by Karpal Singh cannot reasonably be construed as posing any threat to national security.
Although on its face, the Sedition Act is a law of general application, the Malaysian government has been applying the law in an arbitrary manner, in bad faith and for an improper purpose — to prevent political opposition. It cannot be said that the Sedition Act is prescribed by law or that persons charged with sedition are being deprived of their liberty of the person in accordance with law. The effect of the restriction — the stifling of all political speech — is disproportionate to the aim of protection of national security. In a modern democracy, the offence of sedition does not serve a pressing social need. Moreover, when Article 10(2) of Malaysia’s Constitution is interpreted in light of the international instruments and jurisprudence, the Sedition Act does not constitute a “necessary or expedient” limit on freedom of speech and expression or liberty of the person.
The application of the Sedition Act is contrary to the purposes of the UN Charter and the UDHR and to the principles of democracy, which place a high premium on freedom of expression, political discourse and criticism of government. The wording and implementation of the Sedition Act fails to adequately protect the right to freedom of expression as provided for by international law, including Article 19 of the UDHR.
The Malaysian Constitution provides for an independent judiciary, and therefore, the courts must ensure that restrictions do not render fundamental freedoms illusory. As discussed above, it is
the courts’ duty to apply the principles enshrined in the UDHR to interpret the Sedition Act and to ensure its proper application.
In a Joint Declaration of the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, the parties stated that “in many countries laws are in place, such as criminal defamation laws, which unduly restrict the right to freedom of expression”. The parties urged States to review any such criminal defamation laws to bring them into conformity with their international obligations. Malaysia should heed to this urging as the Sedition Act, in both its present form and application, is a violation of international human rights principles.
One of the functions that lawyers in a democracy serve is to stand between the state and the individual, to protect the individual from the state and to uphold the rule of law. The broad scope of Malaysian sedition law imperils lawyers who put this honourable responsibility to practice. The prosecution of Karpal Singh violates the absolute privilege protecting judges, lawyers and witnesses from civil and criminal liability for statements made in the course of judicial proceedings, thereby compromising the integrity of the Malaysian legal system.
This article was originally published in Criminal Law Forum, March 2001, Volume 12, Issue 1, pp 1-23.