Is Proham Secretary-General Questioning Rights Of The Rulers?
A lot of things have been said about the Akta Hasutan or the Sedition Act, a very important Act that was amended in 1970 to protect the stability of our country after a serious racial riot in 1969.
The question is, can the Akta Hasutan be abolished without the Rulers’ consent and is it true that Akta Hasutan is just a “normal Act” and “a colonial-era law made by the British” as claimed by some people?
The Malaysian Insider (TMI) in the above article wrote that Proham secretary-general Datuk Dr. Denison Jayasooria said,
“The Sedition Act is not protected by the constitution. It is a law made by the British.”
TMI also reported that, “the consent of the Rulers is not needed to abolish the Sedition Act 1948, as claimed by defenders of the colonial-era law, Proham secretary-general Datuk Denison Jayasooria said.”
Now, how true is Proham secretary-general’s statement?
Tan Sri Aziz explains that Akta Hasutan is not considered as a British law any more because it has already been amended in 1970, after the May 13, 1969 racial riot incident.
The government had identified four sensitive issues as one of the major causes of the racial riot:
Article 153 of the Federal Constitution: Special Rights For The Malays
Article 152 of the Federal Constitution: Malay As The National Language
Part III: of the Citizenship Rights
Article 181 of the Federal Constitution: Rights, Status, Sovereignty Of The Rulers
To avoid more racial riots, Articles 10, 63 and 159 of the Federal Constitution was amended by adding Article 10 (4), 63 (4) and 159 (5) to prohibit any questioning on these issues.
The parliament then passed a law amending the Akta Hasutan under Article 10 (4) of the Federal Constitution by the addition of section 3 (1) (f), making questioning any of the four issues as an offence punishable under the Akta Hasutan.
Therefore, Tan Sri Dato’ Abdul Aziz said that in reference to Article 159 (5) of the Federal Constitution, the consent from the Conference of Rulers is needed to repeal the Akta Hasutan since the Act was amended under Article 10 (4) of the Federal Constitution.
Article 159 (5) says:
A law making an amendment to Clause (4) of Article 10, any law passed thereunder, the provisions of Part III, Article 38, Clause (4) of Article 63, Article 70, Clause (1) of Article 71, Clause (4) of Article 72, Article 152, or 153 or to this Clause shall not be passed without the consent of the Conference of Rulers.
Article 10 (4) of the Federal Constitutions says:
In imposing restrictions in the interest of the security of the Federation or any part thereof or public order under paragraph (a) of Clause (2), Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, Article 152, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law.
Prof Madya Dr. Syamrahayu Abdul Aziz who is an expert in the Constitutional Laws of Malaysia agrees with Tan Sri Dato’ Abdul Aziz and explains that:
The laws that was passed before Merdeka Day are known as Enactment.
The laws that was passed during the Emergency are known as Ordinance.
The laws that was passed after our Merdeka Day but not during the period of Emergency are known as Act.
If an Enactment and an Ordinance has been amended by the Parliament, it will be known as an Act.
So, since Akta Hasutan is an Act and not an Enactment, it is not just a British law as claimed by the Proham secretary-general.
A very senior lawyer, Uncle Dato’ Naser Disa who also agrees with Tan Sri Dato’ Abdul Aziz, told me that in fact claiming the consent of the Rulers are not needed to amend the Akta Hasutan can be an offence punishable under the Akta Hasutan because it is against the Article 181 for questioning the rights of the Rulers.
I agree with Tan Sri Dato’ Abdul Aziz that the people who are pushing for the Act to be abolished actually want total freedom and to be able to question the four sensitive issues that was protected under the Act.