While the Sedition Act 1948 is known as encroaching the freedom of speech and expression, the amendments which will be tabled tomorrow are even worse as it also limits judicial discretion, says Bar Council chairperson Steven Thiru.

Thiru told Malaysiakini that a lawmaker who is sentenced under the Sedition Act will result in the person to be disqualified.

“The amendments are repugnant to the rule of law. There is still no clarity on what amounts to 'seditious tendency' in Section 3(1) of the act but there is now a new head of seditious tendency that is vague.

“The enhancement of punishment, with no more fine, is harsh and disproportionate to the purported offence. It will automatically disqualify a MP. What is more serious is the fixing of a minimum sentence which is an interference with judicial discretion on sentencing,” he said.

Under the amendments, Thiru ( left ) said a judge cannot give out a sentence of imprisonment that is less than three years.

Besides this, he added that a judge cannot discharge a person convicted of sedition conditionally or unconditionally or take into account the fact that the person is a youthful offender or that the person is a first time offender.

Government is curtailing the judiciary

“These are all sentencing discretion that are always left to the judge but have now been taken away. The government is curtailing the judiciary,” he said.

“The new Section 4(1A) is a drastic amendment and penalises sedition severely with imprisonment up to a maximum of 20 years. This aggravated form of sedition which requires only a tenuous link between the act of sedition and 'bodily harm or property damage' can be easily abused by, for example, agent provocateurs."

Thiru further described that it is shocking that the government would include this oppressive amendment and again remove judicial discretion (as there is a minimum sentence of 5 years) under the present act.

In 2012, prime minister Najib Abdul Razak has promised to get rid of the controversial pre-Merdeka law and replace it with the National Harmony Bill.

However, late last year during the Umno assembly, Najib who is also Umno president, has not only reneged on his promise but decided to enhance it by introducing these amendments.

As a result, several activists and opposition politicians have been hauled up to court and charged under this controversial law the past couple of months.

Bail can be denied for aggravated sedition

To make matters worse, Thiru said a person charged with aggravated sedition can be denied bail under the proposed amendments.

“This is quite unprecedented and unjustified. Bail cannot be used as a form of punishment when there is no conviction. Bail is denied for very serious crimes and sedition by any stretch cannot fall under that category.

“Moreover, the denial of bail depends on a certificate in writing of the public prosecutor. The judge has no discretion on whether or not to grant bail once the certificate is issued by the prosecutor," he said.

“Again, judicial discretion on a critical matter in criminal proceedings is taken out of the hands of the judiciary. Likewise, a judge is obliged to order that a person charged with sedition but on bail cannot travel outside Malaysia without an application of the public prosecutor. The judge again has no discretion,” he pointed out.

Thiru, who is also the Malaysian Bar president, stressed that the amendments allow for severe punishments for an offence that is poorly defined in the Sedition Act 1948.

It does not permit intention or truth as a defence, imposes very harsh and disproportionate penal sanctions and deprives the judiciary of its sentencing and other discretion that it has in criminal matters, he added.

“Hence, the amendments are repugnant to the rule of law,” Thiru said.

The amendments are expected to be tabled tomorrow on the last day of the parliamentary seating.

Surprisingly opposition for the amendment also came from a BN backbencher in Kinabatangan MP, Bung Moktar Radin who described the powers sought in the amendment are too wide-ranging .

Malaysiakini has analysed in detail as what is in store in the controversial amendments.