Demise of the Sedition Act – Surendra Ananth

The Sedition Ordinance 1948 (the “ordinance”) did not survive the establishment of the Malaysian Federal Constitution (the “constitution”). Why? Well, to put it in one sentence, it is simply because the ordinance wasn’t passed by Parliament. This argument was taken in the Federal Court a few days ago in a referral case on the constitutionality of the Sedition Act. Let’s go through the argument stage by stage.

Parliament’s exclusive power to restrict freedom of speech and expression

Only the Parliament may by law impose restrictions on the right to freedom of speech and expression. This power lies within the exclusive realm of the Parliament. This was made clear by the Supreme Court in the case of Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697. It is important to note that Article 10(2) requires that Parliament comes to a conclusion that a restriction on such right is necessary under one of the grounds stated in the same article

The ordinance was never passed in Parliament

The ordinance was passed by the British Legislative Council on July 6, 1948. Since its inception, the ordinance has undergone the following:

1. Modifications by the Yang di-Pertuan Agong (“YDPA”) pursuant to Article 162(4) of the constitution on November 13, 1958 (the “1958 order”);

2. Two orders by the YDPA to extend the application of the act to Sabah, Sarawak and Singapore;

3. Revision by the Commissioner of Law Revision on April 4, 1970. The Sedition Ordinance 1948 was renamed as the Sedition Act 1948 (the Sedition Ordinance will be hereinafter referred to as the “act”);

4. Amendments by the YDPA pursuant to the Emergency (Essential Powers) Ordinance No.45 1970.

It is clear that the act was never once passed or even discussed in the way required under Article 10(2) in Parliament.

Article 162 does not save the act

The said article allows Parliament or the court to modify pre-Merdeka laws to bring it in accord with the constitution. Back in 1956, the YDPA had the power to do so under Article 162(4) (repealed in 1963) as Parliament was yet to be established. The YDPA did in fact exercise his powers under Article 162(4) using the 1958 order.

The point here is this: the act was a law that was incapable of modification, and was therefore outside the ambit Article 162. In Malaysia, the cases of Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ 79 and Assa Singh v Menteri Besar, Johor [1969] 2 MLJ 30 extensively discussed the application of Article 162.

In both these cases, it was held that the relevant law could be modified under Article 162. However, it left open the door to a scenario where a law could not be or was incapable of being modified under Article 162. The Court of Appeal in Singapore made this clear in Tan Eng Hong v Attorney-General [2012] 4 SLR 476 when discussing the Malaysian Article 162. V.K. Rajah JA in delivering the judgment of the court stated:

“We align ourselves with the latter two cases, and find that while those two cases hold that modification of unconstitutional existing laws must be carried out, this is only in so far as modification is possible. Surinder Singh and Assa Singh leave open the position which the courts should take where modification is impossible, viz, whether the courts can then void the unconstitutional existing law under Art 4.”

The act falls squarely under this category. It was a law that was incapable of modification as only Parliament could enact it. It fell outside the powers of the YDPA under Article 162(4). In considering this point, it must be borne in mind that the apex courts of this land has recognised the doctrine of separation of powers. As such, if the constitution has provided for limits on a power, such limit must be respected as the Constitution is the supreme law of the land. The constitutional limit here is that only Parliament can legislate to restrict freedom of speech and expression.

To sum it up, the general rule is that pre-Merdeka laws can be modified to bring it in accord with the constitution under Article 162. However, there is an exception, which is that Article 162 does not apply to laws that are incapable of being modified. The act is such a law as only Parliament can enact it.

Subsequent events did not validate the act

If the act is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. (Keshavan Madhava Menon v The State of Bombay, AIR 1951 SC 128)

Conclusion

The question is one of power and not of the substance of the act. If the act was tabled and passed in Parliament as required under Article 10(2), it would be valid. However, this was clearly not done. It is now in the hands of the court to give effect to the fundamental principles underlying our constitution.

* Surendra Ananth reads The Malaysian Insider.