Malaysia's Sedition law’s overreach !

REFLECTING ON THE LAW By Prof SHAD SALEEM FARUDI

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The Sedition Act is open to many criticisms for its breadth and for its far-reaching implications on political life in the country. Some of its provisions do raise enthralling issues of constitutionality.

THE sedition charge against Sri Muda assemblyman Shuhaimi Shafiei draws our attention to the catch-all provisions of the controversial Sedition Act 1948.

Definition: Section 2 and 3(1) of the Act state that any act, speech, words or publication are seditious if they have a tendency towards any of the following:

> To bring into hatred or contempt or to excite disaffection against any Ruler or government.
Disaffection does not mean absence of affection but refers to disloyalty, enmity and hostility: PP v Param Cumarasamy [1986].

> To excite subjects to seek alteration other than by lawful means of any matter by law established.
> To bring into hatred or contempt the administration of justice in the country. In Lim Guan Eng v PP [1998], an opposition leader who complained that justice was selectively administered was convicted of this charge.

But in PP v Param the defendant’s criticism of the Pardons Board for not applying uniform standards in considering applications for mercy was held not to constitute sedition.

> To raise discontent or disaffection among the subjects. In PP v Ooi Kee Saik [1971] an opposition leader had accused the Government of gross partiality in favour of one race over another.

> To promote ill will and hostility between races or classes.

> To question the provisions dealing with language, citizenship, the special position of the Malays and natives of Sabah and Sarawak and the sovereignty of the Rulers. In Melan Abdullah v PP [1971] the editor-in-chief of Utusan Melayu had published an MP’s speech with the sub-heading “Abolish Tamil or Chinese medium schools in the country”.

Application of the law: In Param Cumarasamy it was held that intention to incite to violence, tumult or public disorder is not a necessary ingredient of the crime.

As long as the words were intentionally published and they had a tendency to cause ill will, etc, the offence is complete.

The prosecution need not prove that the act, speech or publication actually caused hostility, ill will or disaffection. It is no defence for the accused to argue that his words were, in fact, true and honest: PP v Ooi Kee Saik [1971].

Sedition can be committed either in public or in private. On the same set of facts the speaker, the printer and the publisher of a speech may all be prosecuted as in Ooi Kee Saik’s case.

Under Article 63(4) and (5) of the Federal Constitution, Members of Parliament are not exempt from the law of sedition for their parliamentary words or actions: Mark Koding v PP [1982]. 

Safeguards: Section 3(2)(a) of the Sedition Act says that a speech is not seditious if its tendency is only to show that any Ruler has been misled or mistaken in any of his measures.

Section 3(2)(b) states that a speech is not seditious if its tendency is to point out errors or defects in the implementation or administration of government policies with a view to remedying the errors or defects.

What this means is that implementation of government policies and programmes can be questioned.
But the existence of rights, privileges, powers, etc, cannot be put to debate.

Except in relation to sensitive matters, it is permissible to try to seek by lawful means the alteration of any matter established at law.

There is a defence of innocent and non-negligent dissemination in section 6(2).

No person shall be convicted if the publication was printed, sold or distributed without his consent, knowledge and without any want of due care: Melan Abdullah v PP [1971].

Under section 7, innocent receivers of seditious publications are protected if they surrender the publication as soon as the nature of the content has become known to them.

The offending passage must be read in context and as a whole: Mark Koding v PP [1982].
The presiding judge is entitled to look at the audience addressed.

Language which may have a tendency to incite youths may not have such tendency with professors or divines.

The judge is entitled to take note of the contemporary situation. In times of war, emergency or discord, a tendency to bring about one of the undesirable results may be more easily imputed than in times of peace and harmony: PP v Oh Keng Seng [1977].

Constitutionality: Though the Sedition Act has stood the test of time since 1948, it is not immune from judicial review.

Some of it’s provisions do raise enthralling issues of constitutionality.

If the Sedition Act is an Act to combat subversion, then it suffers from a number of manifest defects.
> Every law made under Article 149 must contain the recital prescribed in Article 149(1).

The Sedition Act contains no such recital. Absence of a recital amounts to a violation of a mandatory procedural requirement.

The alternative approach could be that the absence of a mandatory recital relegates the Act to the status of an ordinary law under Article 10 that is bereft of the special scope of Article 149.

> Under Article 149(1) subvesive action must be taken or threatened by “any substantial body of persons”.
Actions of lone dissidents are not within Article 149’s contemplation. Yet the Sedition Act criminalises individual acts of dissent or disaffection.

> In section 2 of the Act, the definition of “publication” includes all written or printed matters and any visible representation.

This means that even a purely private, non-printed, non-circulated matter that is left in a person’s drawer (but discovered by the police in a search under section 8(1) can be regarded as a “publication”.

This means that the Act goes for an overkill. Its prohibitions show no necessary nexus or connection with the action or threat of a substantial body of persons to do the prohibited things in Article 149(1)(a) to (f).

> In sections 2 & 3 of the Act, sedition is not to be judged by actual facts or by criminal intention but by a speculative and subjective “tendency”.

However, in Article 149(1), “tendency” alone is not enough. The alleged action must be of a nature so as “to cause”, “to excite”, “to promote”, “to procure” or be prejudicial to public order, etc.

If the Sedition Act is a law under Article 10(2) and 10(4), then its restrictions must fall within the borders of the explicitly enumerated grounds in these Articles.

It is arguable that many of the provisions of the Act, e.g. section 3(1)(a) on exciting disaffection against any government go far beyond the permissible limits.

In PP v Pung Chen Choon [1994] it was held that where a law authorises restrictions in language wide enough to cover restrictions both within and outside the permissible limits, the law cannot be upheld.

In the same case it was provided that in order to determine whether a particular piece of legislation falls within the orbit of permitted restrictions, the objects of the law must be sufficiently connected to the eight restrictions enumerated in Article 10(2)(a).

The connection must be real and proximate, not far-fetched or problematical.

There is emerging jurisprudence in the case of Shamim Reza that, as in India, parliamentary restrictions on fundamental rights must be “reasonable” in order to be valid.

The concept of sedition in Malaysia is much broader than in the UK, Ireland, India and Australia.

On ideal democratic standards, the law is open to many criticisms for its breadth and for its far-reaching implications on political life in the country.

For this reason it is ripe for review. Whether the technique for law reform will be legislative or judicial remains to be seen.

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM

Home, not so sweet home

Ceritalah By Karim Raslan

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Many students abroad are thinking of staying back to work in London, New York or other cities, with their parents agreeing — and some even encouraging their kids not to return.

LAST month, just before I went to Davos, I gave a talk at Cambridge University. I first went there in 1982, some 28 years ago, and this visit made me feel very old. I suddenly realised that for the current students, I was like a relic.

Still, Cambridge — even after a gap of almost three decades — remains a lovely place. The town has barely changed, with students on bicycles everywhere. Indeed, the centre has been almost entirely pedestrianised, and ancient College buildings scrubbed clean.

The morning after the talk I found myself walking along King’s Parade — the town’s most prominent thoroughfare and through my old college, St Johns. It was a beautiful wintry morning, misty and with a light frost on the ground.

To my surprise, the colleges now charge tourists an entrance fee. However, with all the bravado of a former student, I just marched through the entrance, striding from one pebbled courtyard to another, past buildings that had seen the test of time.

It’s hard to express the sense of time passing. Here I was 28 years older, striding past buildings and a landscape (the trees and the river Cam) that has remained seemingly unchanged. I couldn’t help but wonder how I’d spent all the years.

I was in Cambridge to give a talk on Indonesia. It was also a thinly veiled opportunity for me to recruit people for my consulting practice, and indeed I was to do the same with students from Kings’ College, London, and from a dynamic Malaysian students group called UKEC.

My small business depends on drawing in bright, curious and hard-working young people who are willing to challenge assumptions, hit the ground, talk to businessmen, politicians, regulators and media practitioners while also ploughing through thousands of newspaper articles and reports.

In short, it’s not easy work; and the boss is very, very demanding.

I used to worry about recruiting, but nowadays, I’ve begun to realise that my regional focus — advising corporates, individuals and funds across South-East Asia — is an exciting proposition for young people hankering after experience and exposure.

Indeed, being in Indonesia, the Philippines and Thailand as well as Singapore has given me an enormous advantage in terms of recruitment in that, I’m able to offer the young people a real taste of doing business both inside and outside Malaysia.

Back when I was a young student, I couldn’t wait to return home to Malaysia. My enthusiasm to go home was infectious. I’d sit up all night with friends and talk about what I wanted to do with my country.

To be frank (and this is one of life’s little lessons), I’ve forgotten and/or failed to achieve the things I had set out to do. Instead, I’ve gone on and done other things.

However, nowadays when I meet with students, I sense a growing reluctance to return home. Many of the students are thinking of working elsewhere and making plans to get jobs in London, New York or other cities.

Indeed, when I check with friends whose kids are studying abroad, virtually all of them have agreed to let their kids stay on and work. Some have actually encouraged their kids not to return.

In the 1980s, this was a non-Malay phenomenon. In the 2010s, it’s a Malaysian trend as Malays have also joined the ranks of those who have elected to stay abroad.

Many of the students who choose not to return are sons and daughters of the middle class. Maybe there’s nothing wrong with us losing these young people? Maybe they’re not loyal enough? Maybe their semangat ke-Malaysia-an is too weak?

However, having chatted with the students, I’ve come to see that they love their home country as much as anyone else. But, when presented with alternative options, they chose not to return.

Isn’t this something we should be concerned about? Shouldn’t we be trying to make Malaysia more attractive for our bright, well-educated, young people? Shouldn’t we address the issues they face?

Top of the list is salary. Malaysian wages are caught in a deflationary trap — especially when compared with what’s on offer in the UK, the US or even Singapore.

Next up is a sense of frustration with the unnecessarily bureaucratic and unresponsive government machinery as well as the controls on personal freedom.

The breakdown between public and private morality also causes anguish for many, especially those still experimenting with life’s endless possibilities.

Young people don’t want to demonstrate all the time — they just want to know there’s a real and effective legal and political system that offers them a choice of leaders.

Malaysia won’t lure back the many tens of thousands of young people till we address these problems.

Despite all these hurdles, I’ve found that bright, ambitious young men and women will jump at a chance to work — even if the salaries aren’t great — so long as they’re given exposure and experience across South-East Asia, its 11 countries and 500 million people.

In short, we have to tell our young people that Kuala Lumpur, indeed Malaysia, can be a platform to explore the whole of Asean. Then they’ll come, and in their thousands.

Raise the bar for future doctors

By JOSHUA FOONG joshuafoong@thestar.com.my

MMA concerned about quality of local medical graduates

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PETALING JAYA: There is growing concern about the quality of doctors that the country is churning out.

This is due to the low prerequisites allowed for preparatory medical colleges, known to accept SPM-level students with the minimum requirement of Bs in sciences.

From there, the students have a high chance of getting into universities in countries like Russia and Indonesia.

“There must be some quality or level of excellence before one can realistically aspire to be a doctor,” Malaysian Medical Association (MMA) president Dr David Quek told The Star.

“If one is not good enough there will be problems of quality later on when he or she becomes a doctor.

“It is not simply about getting a degree or a name. It has bearings on human life and patient safety,” he added.
“The association is unhappy that we are having so many routes to medical schools.

“We are creating an unrealistic atmosphere of easy entry for anyone who can afford to pay but whose scholastic ability may be way off the mark,” added Dr Quek.

Readers of The Star have also written in to express their concern on the many “shoplot medical schools.”

While medical universities require recognition by the Malaysian Medical Council (MMC) before their graduates can practise medicine, the council does not have the authority to regulate pre-university courses tied with medical degree programmes.

“We are now looking into the entry criteria for medical students, and if these are too low, then we have recommended remedial measures to limit these medical colleges from being recognised as acceptable standards,” said Dr Quek, who is a council member.

“We are also working with the Higher Education Ministry and its agencies to ensure that foundation courses be of acceptable standards and duration, and that only sufficiently qualified students are accepted,” he added.

Universiti Malaya physiology professor Dr Cheng Hwee Ming said a student also had to master the art of decision making besides having clinical skills.

Rheumatologist Dr Pagalavan Letchumanan, who has trained housemen and lectured for 13 years, said the key point should be clear standardisation for entrance requirements.

“If we regulate the intake of medical students, say through MMC-certified prerequisites, just like our medical degrees, we can be more assured of the quality of our future graduates,” he added.

Malaysians left high and dry

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WE HAD gone to Egypt for our family holiday to show our children one of the ancient wonders of the world with its rich and famous history.

Little did we expect to be part of another history that is taking part in Cairo right now.

It was most unfortunate that our holiday ended abruptly but we didn’t expect it to end with such a bad taste in our mouths – caused by our own people.

The riots started in full on Friday, Jan 28 after the afternoon prayers and we were informed by both our tour guide as well as the hotel authorities, to stay in and not go out.

All mobile phone lines and Internet services were cut by the Egyptian Government and our only contact with the outside world was watching CNN and Aljazeera.

The next morning at breakfast, the other guests of the hotel were instructed by their respective embassies on what to do.

We then tried to contact our embassy, especially when we heard all Egyptian Airlines tickets were cancelled.
‘TRIED’ is the operative word here. We finally got through in the evening (it was 1600hrs by which time the curfew was in force) - needless to say, we did not get any helpful advise or even simple information.

Instead, we were told to inform the embassy on the situation at the airport when we got there!

They didn’t ask our names, our hotel, whether we had any children with us or even if there were other Malaysians in the same hotel.

By this time, the United States, India and Turkey had already announced on TV that they were sending their own aircraft to help their respective citizens.

The next day, as soon as the curfew was lifted, our tour guide took us to the airport and helped us there among all the chaos.

We found out all Egyptian Airlines flights were indeed cancelled.


Meanwhile, since the mobile services were back, our travel agent (from Malaysia) texted us that our flights were confirmed from Dubai to Kuala Lumpur but to contact the Malaysian Embassy for help to get to Dubai.

She also gave us another number at the embassy, specially set up for this situation – needless to say, the person who was manning the phones was of NO help – he could hardly speak recognisable English and could speak NO Bahasa Malaysia at all!

My husband got fed up and just went to the Emirates counter and bought our tickets to Dubai.

There were so many Malaysian students at the airport and as a mother, my heart went out to them – especially the girls, as the Cairo airport was truly scary, no place to sit, no food and a security nightmare – so many bags just left lying around.

While waiting to check-in, we were approached by the various embassy personnel that were there – the US, British, Indian and even New Zealand – whether we were their citizens and whether we needed help.

I had no answer when my children asked me where were the Malaysian Embassy personnel.

Today I read in the papers that all Malaysian students are back safely – after 10 days? Hurrah!

But what about Malaysian tourists? What happened to the Malaysian Embassy personnel?

I would like answers on the service, or lack thereof, by the Malaysian Embassy to help us in our hour of need, as Malaysians.

PREMAH MUNUSAMY-PHILIP,
Malacca.

High time for a new Bar!

COMMENT BY ROGER TAN

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A common evaluation system is needed urgently to check the declining quality and standard of new lawyers in the country. 

IT is a matter of grave concern that with about 1000 law graduates entering the legal profession every year, there is no common evaluation system to ascertain and ensure their levels of competence.

The Bar Council has been advocating a Common Bar Course and Examination (CBE) since the 1980s as a single entry point to the legal profession for both local and foreign law graduates.

It is understood that the delay in implementing the CBE is partly due to objections from local universities.

But it cannot be gainsaid that the quality and standard of lawyers have also declined significantly since the 1980s. There is a common feeling among senior legal practitioners that there is an “abject absence of rudimentary legal skills” among the new entrants.

In 2008, a senior judge lamented on the poor quality of locally trained lawyers, describing their standard as ranging from the “good to the grotesque”. (However, some senior lawyers had also opined that the learned judge’s assessment applied equally to the quality of judges since the 1980s.)

For example, one senior lawyer related this incident to me involving a senior assistant registrar (SAR) and lawyers for both the plaintiff and defendant. The SAR was tasked to read the judge’s order relating to costs. Both lawyers recorded the amount of costs with interest at the rate of 80%!

When the senior lawyer asked his assistant, who was the counsel for the plaintiff, about it, the latter said he did not understand why the SAR had mentioned the interest at 80%. He added that when he checked with the counsel for the defendant; the latter said it was common for the court to grant interest at 80%, which is, of course, erroneous!

Hence, the point is, how could one have walked out of the court without even understanding the court’s order? If the parties were not able to understand the order, then they would also not be able to draft the order later. If what the plaintiff’s counsel had said about the SAR and the other counsel was true, then indeed all the three legally trained officers – SAR and the two lawyers - were indeed half-past-six professionals!

Besides the decline in lawyering quality, there is an abysmal language skill especially the command of the English language among the new entrants for practice at the Bar. I have personally received a letter from a young lawyer asking me to “ensure that (our) clients would be executed the documents!”

It follows that it is not unjustified to require the new entrants to also pass an English Language Qualifying Examination. Whilst we can blame this decline on our education system, we cannot ignore the fact that we are living in an increasingly competitive global environment where international business is transacted primarily in English.

It is also in the national interest for us to build up a pool of competent practitioners in international law so that we can put across our nation’s case in international forums and courts, which is made all the more necessary after the Pulau Batu Puteh case before the International Court of Justice.

In fact, there were 13,350 practising lawyers in Peninsular Malaysia as of Dec 31 last year, with more than half having obtained their basic law degree overseas.

The Legal Profession Act, 1976 (LPA) governs the admission of new entrants from various streams to the legal profession as an advocate and solicitor.

To be admitted to the Malaysian Bar, one has to be a “qualified person” as defined in the LPA; attain the age of 18; be of good character and not been adjudicated bankrupt or convicted of any offence; be a citizen or permanent resident of Malaysia; have served nine months of pupillage under a lawyer of at least seven years’ experience; and have passed, or be exempted from, the Bahasa Malaysia Qualifying Examination.

Three tables containing the relevant information of the legal practitioners and their qualifications have been provided, and let me expound on it a little.

Table 1 deals with the academic qualifications of a ‘qualified person’, and the following should be noted:

> The qualifications, except for graduates of Universiti Malaya, National University of Singapore and barristers of England, are determined from time to time by the Legal Profession Qualifying Board (Qualifying Board) which is chaired by the Attorney-General. Any change to the status of the three aforesaid qualifications can only be made by way of a statutory amendment to the LPA.

> The law degree of the new Singapore Management University has still not been recognised by the Qualifying Board. (Singapore only recognises the law degree of University of Malaya for admission to the Singapore Bar.)

> The two-year exemption from Certificate in Legal Practice (CLP) examination given to law graduates of Universiti Utara Malaysia (UUM) and Multimedia University (MMU) in 2009 will expire on April 15, unless extended indefinitely or for a further period by the Qualifying Board.

Table 2 particularises the qualifications of the 13,350 lawyers as at Dec 31 last year. It is interesting to note that the International Islamic University is the single university which has produced the largest number of lawyers in Malaysia.

Also, as of Jan 28, 2011:

> There were 13,346 lawyers; of whom 6,992 and 6,354 are respectively men and women.

> In terms of ethnicity, there were 5,190 Malays; 5,025 Chinese; 2,517 Indians; 485 Punjabis and 129 Eurasians and others.

> In terms of number of years of practice, there were 1972 lawyers with one to three years of practice; 2,037 (three to seven years); 2,983 (seven to 12 years); 4,244 (12 to 20 years) and 2,110 lawyers have 20 years of practice or more.

> In terms of age, 2,384 lawyers were under 30; 4847 (31-40); 3,537 (41-50); 1,648 (51-60) and 930 lawyers were aged 60 and above.

As regards Table 3 which shows the number of lawyers admitted in 2009 and 2010, it is obvious that women have been busy becoming lawyers in the last two years!

It follows that as Malaysian lawyers are coming from so many diverse educational streams, there is an urgent need for uniformity by undertaking a critical review of the entire legal education especially when we are producing a surfeit of lawyers annually.

Need to be professional

It is for this reason that there have been constant calls for many decades now for the CBE to be implemented as the ultimate sieve in the admission of new practitioners in order to ensure lawyering quality and competency.

Further, the CLP course has to be replaced by the CBE because it is too examination oriented, and not practical skills oriented. This is understandable as the CLP was originally designed in 1984 only as a temporary stop-gap measure to assist those Malaysians who were not able to sit for the English Bar Finals Examinations because they failed to obtain at least a Second Class (Lower Division) Honours in their British university law degree.

To my mind, law schools should just concentrate on the academic aspect of legal education, and leave the professional training in the form of CBE to the Qualifying Board, Bar Council and the Judicial and Legal Services. Passing the CBE should not just be the pre-requisite for new entrants to the legal profession, but also for new recruits for the Judicial and Legal Services.

Pending the implementation of the CBE, the Qualifying Board should also periodically review the teaching and training of law graduates from our local universities. If the standard is not maintained, then the exemption from the CLP examination currently granted to their law graduates should be removed.

As regards foreign law graduates, the Qualifying Board has already reduced the number of approved British universities from 66 to just 30, and Australian and New Zealand law graduates are now required to sit and pass the CLP examination even if they have been admitted as barristers or solicitors in New Zealand or any state of Australia.

In this regard, the Qualifying Board should be commended for setting up in 2008 an evaluation team headed by the Chief Registrar of the Federal Court which comprised judges, officers from the Attorney General’s Chambers and senior members of the Malaysian Bar to determine if UUM and MMU law graduates should be exempted from the CLP examination. As a result, law graduates from the two universities are now required to undergo a training course on practical skills before they can become “qualified persons” under the LPA even though they are exempted from the CLP exam. This exemption will expire on April 15, and the team would return soon to the universities to undertake a review.

In fact, so much has already been said and written in the last 20 years about the urgent need of reforming our decrepit legal education, and we are already sorely lagging behind many Commonwealth countries in this respect. But regrettably, there appears to be a total lack of a sense of urgency on the part of the various stakeholders to come to grips with this unsatisfactory state of affairs which is certainly not in the public interest.

The writer is the head of the Bar Council’s evaluation team appointed by the Qualifying Board to assess the Bachelor of Law degree of UUM and MMU to determine if their graduates should be exempted from the CLP examination. You can follow him on Twitter at www.twitter.com/rogertankm.