A post by Shukri Ahmad Shahizam
Lawyers often treat old laws as quirks treated with a degree of amusement. As products of times past they remind us of, and connect us to, the past in a tangible way which other traces of history do not. As law, their continued applicability imbues them with a reality which seems to tap into the human instinct for nostalgia. Most of the time, old laws are benign - merely words on the statute book that the legislature has not gotten around to removing, yet the lack of any meaningful application renders the same effect. In other cases, they are useful.
This is not one of those cases. At almost 70, the Sedition Act 1948 cannot lay claim to being the youngest of laws. Indeed, it is almost a decade older than the country in which it is in force - Malaysia only gained its independence from the British Empire in 1957. Unfortunately, it is not showing its age. The past decade has seen an emergence in its use by the Malaysian government incomparable to any time in the past. Originally intended as a weapon against the Communist threat in the run-up to the Malayan Emergency, it is now being used to stifle political dissent against the ruling government, which has been in power since independence.
Fortunately, the Malaysian constitutional arrangement places the Federal Constitution at the apex of the legal hierarchy, rather than the fiat of Parliament. Consequently, judicial review of primary legislation exists as a means through which directly affected persons can vindicate their constitutional right to free speech. This essay will critically analyse the courts’ treatment of two forms of such challenge: reasonableness and proportionality. It will argue that the dismissal of reasonableness as a ground is lamentable and mistaken, and that although the courts are to be lauded for retaining proportionality as a ground, its application of the principle leaves much to be desired.
Constitutional Background
Constitutional supremacy and the existence of judicial review of legislation was affirmed by Suffian LP in Ah Thian v Malaysia.[1] There, he held that ‘the doctrine of the supremacy of Parliament does not apply in Malaysia. Here, we have a written constitution. The power of Parliament and of State legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please’.[2] Fundamental liberties are enshrined in Part II of the Constitution which, importantly for our purposes, includes the freedom of speech, assembly and association in Article 10, whose substantive protections are contained in Article 10(1). However, similar to the European Convention on Human Rights, there are exceptions and, under Article 10(2), ‘Parliament may by law impose’, in relation to the freedom of speech and expression: ‘such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence’[3]
Consequently, any form of legislation contrary to Part II fundamental rights, or made ultra vires the legislatures’ powers generally, are liable to be quashed by the federal courts.
Challenges
a) Reasonableness
The basic challenge against legislation which facially restricts protected rights is on the basis of its reasonableness and proportionality. The question of reasonableness will be dealt with first, followed by proportionality. In relation to the former, it will be argued that although the Federal Court’s outcome in PP v Azmi Sharom was correct, the means were not.
In Nasir Hashim v Menteri Dalam Negeri, the Court of Appeal held that restrictions on fundamental rights must be ‘reasonable’.[4] Per Gopal Sri Ram JCA, ‘the restrictions which art 10(2) empower Parliament to impose must be reasonable restrictions. In other words, the word ‘reasonable must be read into the sub-clauses of art 10(1)’.[5] This was later affirmed by the Federal Court in Sivarasa Rasiah v Badan Peguam Malaysia, albeit again by Gopal Sri Ram in his capacity as a Federal Court Judge.[6] However, this qualification was later overruled by the Federal Court in Azmi Sharom v PP.[7] There, Ariffin Zakaria CJ who, speaking on behalf of the Court, stated that ‘it is not for the court to determine whether the restriction imposed on the Legislature… is reasonable or otherwise. That, in our opinion, is a matter strictly within the discretion of the Legislative and not within the purview of the court’.[8] Although space precludes a full discussion on the matter, it is respectfully submitted that this approach is reductive and fails to take into account the courts’ role in enforcing constitutional rights.
The omission of a reasonableness standard renders the court’s consequent approach excessively formalistic. Proportionality aside, it appears that the Court in Azmi Sharom merely requires restrictions to nominally fall within the justifications adumbrated in Art 10(2). This is not to say that the courts may not or cannot have due regard to the legislature’s considerations in relation to what is reasonable. In fact, it would be democratically proper for the courts to have a high degree of trust in the legislature’s judgment. However, the lack of any implicit reasonableness requirement throws the baby out with the bathwater and renders the courts’ role in enforcing the correctness of restrictions nugatory. As Professor Craig has persuasively argued, the consideration of the primary decision-maker’s weight and balance is of basic importance to reasonableness review.[9] In this regard, it is submitted that the preferred approach, taking into consideration the ‘competing’ norms of democratic legitimacy and effective judicial protection of rights, that the reasonableness requirement is retained, but that the courts accord respect to the legislature’s determination of what is reasonable.
Although this is reminiscent of the ‘variable standard of review’ in relation to Wednesbury unreasonableness,[10] it is further contended that although the underlying justification is similar, the resulting doctrine cannot, and should not, be. This is for the simple reason that Wednesbury was designed and refined in relation to judicial review of administrative action within a jurisdiction where there is Parliamentary supremacy, in contrast to the current issue concerning judicial review of legislation with respect to a supreme Constitution. A substantive analogy with the Wednesbury spectrum proves impossible as it appears that it is simultaneously a case of policy, which would require ‘low-intensity’ review,[11] and one concerning fundamental rights, which would require ‘anxious-scrutiny’ review’.[12] Although considerations of space prevent a full exploration of what an appropriate standard should be it must, at the very least, accept the legislature’s democratic role whilst respecting the court’s Constitutional responsibility to robustly enquire into the justifiability of the legislature’s act.[13]
However, it is unlikely that the imposition of a reasonableness standard, even one at a ‘anxious-scrutiny’ level, would be entirely fatal to the Sedition Act. This does, of course, bring about a question of temporal location, i.e. one which asks at which time must the Act be reasonable. However, no matter the answer, it is likely that restrictions on expressions which, for example, ‘excite the subjects of any Ruler or the inhabitants of any territory… to attempt to procure… the alteration, otherwise than by lawful means, of any matter as by law established’ would be reasonable now and, by extension, be reasonable during the more turbulent post-colonial era.[14] Nonetheless, it must be noted that if the Act were to be considered in a contemporary context, wide restrictions on expressions which ‘bring into hatred or contempt or to excite disaffection against any Ruler or against any Government’, [15] ‘bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State’,[16] and ‘raise discontent or disaffection amongst the subjects of the [King] or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State’[17] would likely be considered excessively broad and unreasonable as they do not relate to a degree of incitement towards unlawful means as the previously mentioned provision does.
b) Proportionality
Peculiarly, the Federal Court in Azmi Sharom maintained the applicability of proportionality challenges to statutes restricting fundamental rights, as established in Sivarasa Rasiah.[18] The genealogy of proportionality in Malaysia and its precise content is beyond the scope of this article. However, it suffices to state that the outlines of the test are as accepted by Lord Steyn in R v Secretary of State for the Home Department, ex parte Daly, i.e. the three-fold test of (i) legitimate aim, (ii) rational connection and (iii) minimal impairment.[19]
In PP v Mat Shuhaimi (‘Shuhaimi 1’),[20] the Court of Appeal considered the proportionality of the substantive offence in s 4(1)(c). Later, in Azmi Sharom, the Federal Court considered the offences in s 4(1) as a whole. More recently, the Court of Appeal considered the ‘strict liability’ element of the Act’s offences in Mat Shuhaimi v Government of Malaysia (‘Shuhaimi 2’).[21] It will be argued that the Court’s decision in Azmi Sharom is incorrect due to a simplistic and defective reading of the proportionality test. Furthermore, it will be argued that the Court of Appeal’s reasoning in Shuhaimi 2. that making the sedition offences strict liability is disproportionate was correct.
With respect, it is argued that the courts in Shuhaimi 1 and Azmi Sharom were incorrect in applying the proportionality test. Furthermore, its is arguable that the extent of their error in applying proportionality, as adumbrated in Sivarasa Rasiah and Nasir Hahim, is sufficient to render the decision per incuriam.
Specifically, the courts in the former two failed to apply the ‘least restrictive/minimal impairment’ criterion. This is significant and goes to the heart of proportionality as a principle which is underpinned by the maxim that one may not ‘use a hammer to crack a nut’.[22] Without it, proportionality analysis is useless in satisfying its purpose in ascertaining whether a particular legislative or executive act was in excess of what was necessary or acceptable. Consequently, any such ‘analysis’ merely resembles neutered versions of ultra vires and reasonableness review.[23] This particular error is apparent in the judgment of Abdul Malek Ishak JCA’ in Shuhaimi 1. Although purporting to apply proportionality review, he only considered that the Act was in line with the legislative objective of ‘prevention of public disorder and the maintenance of public order’,[24] and that it ‘does not overreach art 10(2)(a)’.[25] Though it is arguable that proportionality steps (i) and (ii) were applied, they have no value independent of the application of step (iii) for the reasons given above. Similarly in Azmi Sharom, although due regard appears to be made to step (ii), as evidenced by Arifin Zakaria CJ’s statement that the prohibition of ‘sedition’ is not ‘too remote or not sufficiently connected’ to the security justification provided in Art 10(2)(a), [26] there is no evidence that the issue of necessity was dealt with.
Whilst the Federal Court provided more detailed reasoning in Azmi Sharom, it still fell short. As in Shuhaimi 1, the requirement of necessity was not applied strictly - if at all. The Court appears to accept the presence of exceptions to support the notion that the offences were minimally impairing to rights. Even on a superficial examination, this reason cannot be sustained. That a restriction is not as severe or absolute as it could have been does not imply that it is already at the lowest threshold which meets its legislative purpose. It may even be argued that the existence of exceptions calls into question the legitimacy of the Act’s generality, and whether the least restrictive means to achieve the objective would. instead, be the criminalisation of explicit acts which, in a seditious manner, directly threaten national security. This is in contrast to the Act’s structure, which first defines ‘sedition’ then criminalises actions which are of a seditious nature. Thus the Court’s reasoning is based on a non-sequitur and is unsatisfactory.
In stark comparison is the Court of Appeal’s judgment in Shuhaimi 2, which demonstrated robust reasoning and regard to the proper application of the test. This is evident in paragraphs [33] to [44] of George Varghese JCA’s judgement, which scrutinises not only the legitimacy of imposing strict liability as a means to give further effect to the prohibition of sedition, but also the question of whether the same could be done with less imposing means. To support its inquiry, it applied the analytical tool of comparing against other criminal statutes relating to ‘more socially abhorrent and heinous’ offences, such as drug trafficking and corruption, and taking into consideration whether intent was required and, if so, whether there was any legal or evidential presumption in favour of the prosecution applied.[27] For his part, it appears to be decisive that the most oppressive means applied was a rebuttable presumption of intent. Nonetheless, any consolation in the capacity of the Malaysian courts to correctly apply the test was short-lived, as the judgement was soon set aside on appeal to the Federal Court on a procedural point.[28]
Conclusion
The fate of the Sedition Act remains to be determined. With several cases proceeding before the trial courts at the moment, further constitutional challenges are all but an inevitability. Whilst the removal of reasonableness as a ground for review is problematic in principle, it may nonetheless be immaterial for the most part, given the continued applicability of proportionality.[29] Whether it will become an effective tool for the vindication of constitutional rights also remains in question and depends on correct judicial application. In any case, it may be that any victory on this front will be short-lived and substantively immaterial. There remain many more laws on the Malaysian statute book of a similar character to the Sedition Act, such as s 505 of the Penal Code, the Malaysian Communications and Multimedia Act 1998, the Printing Presses and Publications Act 1984, and, as of time of writing, the newly-tabled Anti Fake-News Bill. The fight for freedom of expression in Malaysia, then, goes on far beyond the Sedition Act and, barring exceptional events, far into the future.
References and Footnotes
[1] [1976] 2 MLJ 112. A note on the judicial hierarchy and related abbreviations used. Currently, the apex court in Malaysia is the Federal Court, which was named the Supreme Court between 1984 and 1984. Prior to 1984, it was called the Federal Court, but appeals lay to the Privy Council. Since 1994, there has been a Court of Appeal as an intermediary between the Federal Court and High Court. LP: Lord President, the head of the judiciary prior to the institution of the post of the Chief Justice in 1994. JCA: Court of Appeal Judge. FCJ: Federal Court Judge. CJ: Chief Justice, or Chief Judge.
[2] ibid, 113A.
[3] Article 10(1)(a), Federal Constitution.
[4] [2006] 6 MLJ 214, [9] (Gopal Sri Ram JCA).
[5] ibid.
[6] [2010] 2 MLJ 333, [5].
[7] [2015] 8 CLJ 921.
[8] ibid, [37].
[9] Paul Craig, ‘The Nature of Reasonableness Review’ (2013) 66 CLP 131
[10] [1948] 1 KB 223
[11] See, for example, R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] 1 AC 240
[12] R v Ministry of Defence, ex parte Smith [1996] QB 517. It should be noted that the Ministry of Defence argued precisely the point that ex parte Smith shoulda have been decided under the ‘low-intensity’ rubric. Although Sir Thomas Bingham MR rejected this point, he accepted its applicability to ‘security-based’ decisions.
[13] See the recent case of Indira Ghandi v Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ 545 on a contemporary re-assertion of judicial power.
[14] Sedition Act 1948, s3(1)(b) (emphasis added).
[15] ibid, s3(1)(a).
[16] ibid, s3(1)(c).
[17] ibid, s3(1)(d).
[18] Azmi Sharom (n 7) [43].
[19] Sivarasa Rasiah (n 6) [30].
[20] [2014] 2 MLJ 145.
[21] [2017] 1 MLJ 436.
[22] Or, to use George Varghese JCA’s turn of phrase, to ‘[use] a hammer to confront the menace of a mosquito’: ibid, [34].
[23] Although it may be argued that whether it is ‘acceptable’ is a question asked by the fourth, ‘balancing’, step also known as ‘proportionality stricto sensu’ which has yet to be recognised in Malaysian law. On its delayed uptake in UK law, see Huang v Secretary of State for the Home Department [2007] UKHL 7, [2007] 2 AC 167.
[24] Shuhaimi 1 (n 19) [102].
[25] ibid, [103].
[26] Azmi Sharom (n 7) [43].
[27] Shuhaimi 2 (n 21) [40].
[28] Mat Shuhaimi v Kerajaan Malaysia [2018] MLJU 32. For a critical treatment of the judgment, see Shukri Ahmad Shahizam, ‘One Step Forward, Two Steps Back? Constructive res judicata in Malaysian Constitutional Cases’, ICON Blog, Jan. 31, 2018, at: http://www.iconnectblog.com/2018/01/one-step-forward-two-steps-back-constructive-res-judicata-in-malaysian-constitutional-cases
[29] This is not to say that there may not be differences in outcome between the two standards, only that such instances would only occur in marginal cases. See Jeff King, ‘Proportionality: A Halfway House’ [2010] NZL Rev 327, 346-348. See also Lady Hale’s speech in Keyu v Secretary of State for the Foreign and Commonwealth Office [2015] UKSC 69, [2016] AC 1355.