Wednesday, January 31, 2018

Sri Ram's gross ommision of the Constitution

It was February 22nd 2017 that the two former fellow Federal Court judges met in court.

The government side was appealing against Court of Appeal decision to set aside a provision in the Sedition Act 1948 in the sedition case against PKR assemblyman Mat Shuhaimi. .

Tan Sri Apendi Ali described the encounter then as an "abang dan kawan" affair. There was no objection from lawyer to Mat Shuhaimi, Dato Gopal Sri Ram to the appeal. Yes, the person defending this sedition case is the same judge, who sent Lim Guan Eng to jail on press and publication act .*

In the latest development, Federal Court ordered the trial of Mat Shuhaimi to proceed. However, the decision will have implication to other pending sedition cases.

In the meanwhile, Sri Ram is still going about town arguing the government cannot enforce the sedition law because it is a law put together by "penjajah" and not passed by Parliament.
That is a gross ommission of the constitution and pushing his luck for the client.

A newly set-up portal, Stories behind Storied debunked him simply by using the Federal Constitition.

Why are we still arguing over whether the Sedition Act is constitutional?

03:01 Jan 29, 2018

By Herman Basuki
Stories Behind Stories

Recently, it was reported that retired Federal Court Judge, Datuk Seri Gopal Sri Ram, said the use of Sedition Act 1948 is unconstitutional as it was not made by Parliament.

According to the barrister, under the Federal Constitution, only Parliament may make law to restrict freedom of speech. Since the Sedition Act 1948 was inherited by the British and not made by Parliament, its use is unconstitutional.

There is much thunder and lightning in the barristers statement. Let’s see if it brings rain.

When Malaya gained independence in 1957 we inherited all existing laws as it was not possible for the newly formed Parliament to make laws to replace every existing laws.

The Sedition Act 1948, then known as the Sedition Ordinance 1948, was one of the existing laws. Indeed, Parliament did not make Sedition Act 1948. 

From a legal and political viewpoint, it would be wrong for the British to continue restricting the freedom of speech of the citizens of our new nation through the Sedition Ordinance 1948.

However, at the same time, there were many other existing laws made by the British that effective forms the bedrock of our nation. Examples would include the Penal Code, the Criminal Procedure Code, the Contracts Act 1950, the Public Authorities Protection Act 1948, and the Civil Law Act 1956. Many of these existing laws remain the law of the land till today.

The framers of our Federal Constitution saw the wisdom of having a provision to ‘save’ all existing laws. That provision is Article 162 of the Federal Constitution.

The effect of Article 162 is that existing laws shall continue to be the law of the land until repealed by Parliament.

Since Parliament has not repealed the Sedition Act 1948, it continues to be the law of the land.

Sri Ram was selective in his reading of the Federal Constitution. As a retired Federal Court Judge, he ought to have given a full and accurate account of the law.

At the very least, he should have stated that the same arguments were raised in Federal Court in Azmi Sharom’s case and the Federal Court has decided that the Sedition Act 1948 is valid and enforceable by virtue of Article 162 of the Federal Constitution.

We must be cautious in accepting statements made by eminent individuals as the truth. We must subject their statements to same degree of scrutiny as we would to any other individual. After all, they are just like us, fallible and sometimes blinded by our own politics.
It's puzzling Sri Ram could omit an important part of history and section on the constitution. Perhaps he was not born yet during Independence.....

* Correction: Not sedition act offense.

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