Former Bar Council president Ambiga Sreenevasan said judges should just rule ‘not guilty’ in future sedition cases as the courts do not have any more discretion under the newly fortified Sedition Act.

She said there are many areas in the newly amended Sedition Act and Prevention of Terrorism Act, which were recently passed in Parliament, where discretion of the courts has been completely removed.

This, the prominent activist said, was an “insult” to the judiciary.

“Why is there no more discretion in courts? Scared they might do justice, or we can’t have that?” she asked during her speech at the Karpal Singh inaugural forum in George Town yesterday, organised by the Penang Bar Committee to commemorate his first death anniversary.

“So judges should find everyone not guilty rather than go through the motion of this ridiculous piece of legislation,” added Ambiga, a former Bersih co-chairperson, at the event supported by the Penang government and Penang Institute.

Moderated by former Bar Council president Christopher Leong, the panelists included former Appeals Court judge Mahadev Shankar, Queen’s Counsel Mark Trowell and current Bar president Steven Thiru.

Tying judge's hands

Ambiga supported Thiru’s views when he earlier said that the judges’ hands are now tied when it comes to sentencing in sedition cases as the minimum punishment is now three years, and maximum 20.

“Irrespective of the circumstances or case, judges are required to start off with three years, he or she cannot impose anything less than that.

“That is a serious encroachment into judicial independence,” he said.

“In sentencing matters, judges must be allowed to deal with offences in appropriate sentences, not tie their hands. But that is what minimum sentencing does,” he added.

Thiru said another example of judges’ discretionary powers being removed is when he or she has to issue an order to ban those facing sedition charges from travelling.

“The public prosecutor can apply to prevent the individual from leaving and judge will issue an order, at the dictate of the DPP. The judiciary becomes a mere rubber stamp,” he said.

Evidence rules out the window

Thiru also pointed out that in the amended Act, there is no longer the need for corroborated evidence.

“In the past, we cannot rely only on (just) one witness, we need to corroborate our evidence, now we see the rules of evidence thrown out of the window,” he added.

Such amendments had “mutilated” the 1948 Act, Thiru said, adding that a group of commonwealth lawyers had “gasped in horror” when he spoke about the matter in Glasgow recently.

Meanwhile, Ambiga questioned how the Attorney-General (AG) Chambers could have drafted such an “odious” piece of legislation when it is the duty of the AG to advise the government in legislations concerning the rule of law.

“Frankly, if I am the government, I would be very embarrassed and ashamed.

“Unfortunately this government does not embarrass easily,” she quipped, to loud cheers from the 600-odd crowd at the forum, an event supported by the Penang government and Penang Institute.

Ambiga said the Act, if tested against the sub-rules for rule of law set up by one of the most influential judges in the 20th century, the late Lord Bingham in 2006, “fails on all accounts”.

This is because to pass the test of rule of law, a piece of legislation has to be “accessible, intelligible, clear,  predictable, fair, publicised, discussed and accorded with rules of proportionality with criminal offences”, she explained.

However, the process in which the Act was passed in Parliament provided little time for discussion, debate or transparency, or for the MPs to digest the details or to put forward their views, she said.

Based on this simple test, the Sedition Act represents ‘rule by law’ by this government, where the law is used as an “instrument to suppress the nation”, she said.