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.
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.