It is not constitutionally wrong to annoy the executive, former Court of Appeal judge Mohamad Ariff Mohd Yusof told a law conference in Bali, Indonesia, in a keynote address last month.

According to Ariff, such actions cannot be held to be seditious or be considered a threat to public order. This includes the drawing of cartoons in jest, even with an intention to annoy, as this cannot lead to the overthrow of a political order.

In referring to the case of Zunar's cartoons last year, where Ariff led a panel to lift the ban on two of the cartoonist’s works, the former Court of Appeal judge said the court ruled that while the cartoons could be rude or even defamatory, they could not be considered seditious or a threat to public order.

“The executive or its ministers, in short, would be better off suing the cartoonist for defamation under ordinary law,” he said.

Ariff said with regard to the Peaceful Assembly Act 2012, where he also led a panel to declare Section 9(1) of the law that requires an organiser to give a 10-day notice as unconstitutional , whatever the Federal Constitution made lawful, such as right to assembly, should not be so easily criminalised.

“The presumption of constitutionality has to be displaced in the interest of protecting the freedom of assembly for the citizens. The court found this particular restriction (the 10-day notice) to be unreasonable and irrational.

“In our balancing exercise, the court referred extensively to decisions from foreign jurisdictions, although these were merely of persuasive value.

“Good constitutional principles and good applications of constitutional principles, in a way, should not be shackled by geographical boundaries,” Ariff said.

Since then, the Court of Appeal has departed from the decision made by Ariff in the Nik Nazmi Nik Ahmad case when the second-most senior judicial officer, Court of Appeal president Justice Md Raus Sharif, ruled in the Public Prosecutor vs R Yuneswaran's case it is not wrong for the authorities to impose the 10-day notice requirement.

Nik Nazmi ( photo ), who is Seri Setia assemblyperson and a Selangor state executive councillor, was subsequenlty re-charged on Tuesday for the same offence for which he had been acquitted twice.

Ariff also quoted British jurist Tom Bingham, who said "minsters and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably".

Indonesia strikes down unconstitutional action

Ariff also pointed out the dynamism of Malaysia's neighbour, Indonesia. In the Constitutional Court of Indonesia, he said, there is a broad acceptance of the concept of Negara Hukum and a willingness on the part of that court to strike down unconstitutional action on the part of the government and the legislative assembly.

Ariff cited the Indonesian chief justice of the constitutional court, who presented a paper at the World Conference on Constitutional Justice and explained the need to adopt the concept of constitutional supremacy to replace the People's Consultative Assembly (legislature).

“The importance of the court’s establishment cannot be separated from the importance of judicial review in any democratic, constitutional state.

“This is based on the theory that because laws are political products, the laws may reflect the interests of the dominant political power, which may not be in accordance with, or may even be contradictory to, the constitution.

“Thus, it is necessary to have a mechanism to anticipate or overcome such issues through judicial review,” Ariff said in quoting the Indonesian chief justice.

Laws detrimental to parliamentary democracy

Ariff contrasted Indonesia's pro-active gesture with the situation in Malaysia, where Parliament introduced the crime of committing an activity that is detrimental to parliamentary democracy under Section 124B of the Penal Code and accords a punishment of up to 20 years’ jail on those convicted.

“It remains to be seen whether the Malaysian courts will approach such a provision in the same way the Indonesian Constitutional Court has done in relation to its own Article 154 of Indonesia’s Criminal Code,” he said.

The constitutional court recently struck down Articles 154 and 155 of the Criminal Code as being devoid of legal certainty and having the tendency to lead to an abuse of power and therefore contradictory to Article 28D, paragraph (1) of the 1945 Constitution of the Republic of Indonesia.

The struck-down Article 154 states that whosoever declares feelings of hostility, hatred or contempt towards the Indonesian government in public shall be punished by a maximum imprisonment of seven years or a maximum fine of 4,500 rupiah.

Ariff noted the difficulty in Malaysia in balancing between the rule of law and fundamental human rights as enshrined in the Federal Constitution, where he said in the final analysis, it really depends on how a particular judge, views, understands and is willing to protect the important features of the constitution.

At a media law conference last week, Ariff said the restrictions the authorities imposed on the people and media must be reasonable .