Sedition or a question of law?

Raja Aziz Addruse and Andrew Khoo Chin Hock

THE law of sedition is fast getting into disrepute.

The public exchanges over the Datuk Jamry Sury affair show yet again that there are still many people who believe that charging a person with sedition for uttering statements critical of someone in high authority would make the problem go away.

They lack any sense of objectivity and see in every criticism of those in power an intention to commit some criminal offence.

Jamry was the director of the Perak Religious Department. He had been transferred out of his post to the state secretariat by the Pakatan Rakyat government but was reinstated on the instruction of the Sultan.

That prompted Karpal Singh, the DAP member of parliament for Bukit Gelugor and a senior lawyer, to question the "constitutionality" of the instruction.
He argued that it was the state government which should decide when and where to transfer a civil servant and that the Ruler should not interfere.

One would have thought that the issue was whether it was the state government or the Ruler who had the power of control over Jamry in relation to his employ.

Ordinarily, it is the government which has the power to deal with civil servants since it would otherwise be powerless to control them in the event of their insubordination, disobedience or, as alleged in Jamry's case, for refusing to co-operate with the government.

If, however, as some contend, the power to transfer Jamry is vested in the Ruler as the head of the Islamic religion in the state, then so be it.

Whichever is the correct view can only be determined by interpreting the provisions of the state Constitution, according to established principles of constitutional law, as applied in a democracy.

What is involved is clearly a question of law.

But there are those who do not quite see it that way. Arising from his criticism of the Ruler of the state, a number of police reports were lodged against Karpal Singh, accusing him of sedition, of being rude and of insulting the institution of Malay Rulers.

To the complainants, the question of whether the Ruler's action was constitutional or not is not relevant. What to them is of greater importance is that no one should make any statement critical of the actions of the Ruler of a state.

That goes against the express provision of the Federal Constitution, that everyone is equal before the law.

Furthermore, the government itself, when justifying its move in 1992 to remove the legal immunity of the Malay Rulers (by amending Article 181), had made it a point to impress upon the public that: "No one is above the law".

No government backbencher had made any complaint then that the various statements uttered by government ministers and senior politicians, against which the recent utterances of Karpal Singh pale by comparison were seditious.

Then there were the inciting state ments of ministers and other politicians made in connection with the government's move to amend Articles 150 and 66 of the Federal Constitution in 1983, for which no one was ever prosecuted for sedition.

The 1983 amendments, which have since been repealed, transferred the power of the Yang Di-Pertuan Agong in Article 150 to declare an emergency to the prime minister.

The amendment to Article 66 stated that the Yang Di-Pertuan Agong had 15 days to assent to a piece of legislation, failing which, royal assent would be deemed to have been given.

Apart from the question of double standards, a difference of viewpoint on an issue of law and of the interpretation of legislation cannot support an accusation of sedition.

On an issue involving the exercise of the right to freedom of speech, one needs to be a bit more mature and broad-minded in one's outlook.

Members of parliament, especially, have a duty to honour the oaths they made before taking their seats in the Dewan Rakyat -- to "bear true faith and allegiance to Malaysia, and to preserve, protect and defend its Constitution".

When considering the right to freedom of speech provision of the Constitution, they need to remind themselves of the oft-quoted statement, "I may disapprove of what you say but I will defend to the death your right to say it." (This was a phrase coined by Evelyn Beatrice Hall to describe Voltaire's principle of the right to free speech.)

What is strange about the whole thing is that the attorney-general (also the public prosecutor), who must have been aware of what has been going on, does not seem to have initiated any action against Karpal Singh.

If the statements were seditious, as alleged in the police report, one would have expected the attorney-general to be the first to act.

Raja Aziz Addruse is a former Bar Council president and former president of the National Human Rights Society (Hakam). Andrew Khoo Chin Hock is co-deputy chair of the Bar Council's Human Rights Committee. This article was previously published in the New Straits Times on 18 May 2008.

Let's have certainty in this law

Raja Aziz Addruse

KAMARIAH Ali, one of the followers of the Sky Kingdom sect led by Ayah Pin, was convicted of apostasy by the Terengganu Syariah Court on Feb 17, 2008.

Her long and futile legal struggle highlights the need to seriously address the constitutional issue of the right of Muslims to freedom of religion.

Kamariah had years earlier been convicted of deviant practices in the syariah court and sentenced to 20 months' jail. Her appeal against the conviction was dismissed but her sentence was suspended on condition that she appear before the Kadi's Court every month for three years to declare her repentance.

When she breached the condition, a new charge was brought against her. On Nov 5, 2000, when her case was called up, she declared in open court that she had apostatised since August 1998, arguing that she was not subject to the jurisdiction of the syariah court.

Despite having apostatised, she was found guilty of the new charge on Nov 19, 2000 and sentenced to three years' jail. A further charge was brought against her for apostasy, arising from the declaration she had made on Nov 5, 2000.
She made two applications to the civil courts, to seek her release by a writ of habeas corpus on the ground that her conviction and sentence of imprisonment were illegal; and, to ask for a declaration that she had a right to profess and practise the religion of her choice and, therefore, to renounce Islam.

The Kota Baru High Court dismissed both applications and her appeal to the Court of Appeal was also unsuccessful.

But on Nov 5, 2002, she was granted leave to appeal to the Federal Court to determine specific issues, including whether the right to profess a religion under Article 11(1) of the Federal Constitution includes the right of an adult Muslim to renounce his religion; and whether a law imposing any restriction upon the right of such a person to renounce his religion is inconsistent with Article 11(1) of the Constitution and is, therefore, void.

In a joint judgment delivered on July 21, 2004, four of the five judges of the Federal Court who had heard the appeal (the fifth having in the meantime retired), dismissed it.

The court held that although she had apostatised in 1998, Kamariah was still liable for any offence she had committed while she was still a Muslim.

The court said if Muslims charged for syariah offences were allowed to say that they were no longer Muslims to escape the jurisdiction of the syariah court, the whole administration of Islamic law (and possibly other religions as well) would be affected.

In the court's view, the issues posed by the questions were not relevant and were academic.

Kamariah, it said, should raise the issue of her right to freedom of religion at her trial on the apostasy charge.

Since she faced prosecution for apostasy in the syariah court, it was difficult to explain how the question of Kamariah's right to renounce Islam could be dismissed as irrelevant or academic.

What had been expected to be a landmark decision from the highest court of the country turned out to be a great disappointment.

All the efforts put in by Kamariah's lawyers and over eight months of waiting for the judgment proved a waste of time. The Federal Court had showed itself to be unequal to the task of discharging its most important constitutional function.

Kamariah's lawyers had been careful to make sure the questions which the court had to consider and answer were couched in precise terms.

But it was not any ambiguity that was the problem: it was just that the court was avoiding the issue.

One gets the distinct impression that the civil courts have been too quick to decline jurisdiction whenever the issue of Article 11 has cropped up.

In the Lina Joy case, the High Court referred to various provisions of the Constitution which it said were relevant to the reading of Article 11.

But looking at those provisions closely, none of them appears to have any bearing on the issue.

The view, for example, that a Malay, by virtue of the definition of the term "Malay" in Article 160(2), cannot renounce Islam as his or her religion but remains in the Islamic faith until his or her dying days, is contrived.

The definition of "Malay" in Article 160(2) is nothing more than just that: it is intended for the specific purpose of identifying the "Malays" referred to in a number of provisions of the Constitution.

A "Malay" as defined does not even have to be ethnically a Malay. The late Tan Sri Mubin Sheppard, an Englishman, who professed the religion of Islam, habitually spoke the Malay language and conformed to Malay custom, was a Malay for the purpose of the definition.

The Federal Court has a duty to establish some certainty in the law. The current practice of deciding each case on an ad hoc basis, with each decision providing no satisfactory solution, is unacceptable.

The civil courts, if they are to have any credibility, must base their decisions on sound legal principles, uninfluenced by personal prejudices and predilections.

It is not good enough to say, in declining jurisdiction, that allowing a Muslim to come out of Islam would "create chaos and confusion" or would "threaten public order". Those are not acceptable reasons.

The civil courts have the jurisdiction to interpret the Constitution and protect the fundamental liberties, including the right to freedom of religion under Article 11.

That jurisdiction cannot be taken away by inference or implication, as seems to be the argument, but by an express enactment which says that it is the intention of parliament to deprive the courts of their jurisdiction.

The Kamariah case also highlights other aspects of our justice system. When she was convicted of apostasy, the syariah court judge had deferred her sentencing to March 3 to give her a chance to show that she had repented.

In sentencing her to prison for two years, the judge said that he was not convinced that she had repented because she had failed to respond when he greeted her with Assalamualaikum at the start of the court proceedings.

The picture of a lonely woman who has been ostracised from society, being continually harassed to repent, offends our sense of justice and fair play.

No one should be subjected to such humiliation and shame, particularly by a court of law, even a syariah court.

The sentence passed by the syariah court took into account public interest and the sentiments of Muslims in the country. Those are factors which, to lawyers practising civil law, are too nebulous to use as principles for sentencing.

Kamariah had served a two-year jail sentence in 1992, also for apostasy.

No doubt the Federal Court will one day have to rule if a person like Kamariah can be charged again and again for the same, or virtually the same, offence.

The writer is a former Bar Council president and former president of the National Human Rights Society (Hakam). This article was previously published in the New Straits Times on 27 April 2008.