6 AMR 338;  6 MLJ 751;  8 CLJ 921
Federal Court – Criminal Reference No. 06-5-12-2014(W)
Arifin Zakaria CJ, Raus Sharif PCA,
Zulkefli Ahmad Makinudin CJ (Malaya),
Abdull Hamid Embong, Suriyadi Halim Omar FCJJ
October 6, 2015
In 2014, Azmi Sharom, an Associate Professor of Law at the University of Malaya, was charged with sedition as a result of comments made by him concerning the 2009 Perak constitutional crisis that were reported by an online news portal.
Sharom then applied for the question of the constitutionality of the Sedition Act 1948 (“the Act”) to be referred to the High Court. Two constitutional questions were subsequently referred to the Federal Court under s 84 of the Courts of Judicature Act 1964, namely:
(a) whether s 4(1) of the Act contravenes Article 10(2) of the Federal Constitution and is therefore void under Article 4(1) of the Federal Constitution; and
(b) whether the Act is a valid and enforceable Act under the Federal Constitution.
Enforceability of the Act
In respect of the second question, is the Act (which was enacted by the Federal Legislative Council as the Sedition Ordinance 1948, and subsequently retitled by the Commissioner of Law Revision in 1969) valid and enforceable in light of the decision of the Supreme Court in Nordin Salleh v. Kerajaan Negeri Kelantan & Anor  2 AMR 3086;  1 MLRA 420?
In Nordin Salleh, the Supreme Court had held that the freedom of association of members of the State Legislative Assembly could not be restricted by a provision in the Kelantan State Constitution, among other reasons because Article 10(2) allows restrictions to be imposed by “Parliament”, and that only in the interest of the security of the federation or any part thereof, public order or morality.
In Azmi Sharom, Arifin Zakaria CJ, delivering the judgment of the Federal Court, held that the words “Parliament may by law” in Article 10(2) should not be interpreted in a “highly restrictive and rigid” manner, but must be read harmoniously with Article 162, which provides for the continuance in force of all existing laws, subject to modifications made by the courts to bring them into conformity with the Federal Constitution, and any amendments made by federal or state law. The court stated that an existing law would only be rendered invalid if it could not be modified so as to bring it into accord with the Federal Constitution.
Proportionality and reasonableness
With regard to the first question, Azmi Sharom will chiefly be remembered for the Federal Court’s reconsideration of its seminal decision in Sivarasa Rasiah v. Badan Peguam Malaysia & Anor  2 AMR 301;  6 MLRA 375, which has formed the basis of Malaysian Article 10 jurisprudence since 2009. In Sivarasa, Gopal Sri Ram FCJ, delivering the judgment of the Federal Court, held that any restrictions on Article 10 rights must be “proportionate” to the objects sought to be achieved, and that the word “reasonable” must be read in to qualify the word “restrictions” wherever it appears in Article 10(2), adopting his Lordship’s own reasoning in the Court of Appeal judgment in Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia  5 AMR 702;  2 MLRA 396.
Shortly before the decision in Azmi Sharom, the approach adopted in Sivarasa to read in the word “reasonable” had been characterised as obiter dicta by Raus Sharif PCA, delivering the judgment of the Court of Appeal in PP v. Yuneswaran Ramaraj  6 AMR 271;  6 MLRA 559. In that decision, the court stated that it was a usurpation of the role of Parliament to read the word “reasonable” into Article 10(2), given that the word had originally been included in the Reid Commission’s draft but had been excluded by the Working Committee from the final draft of the Federal Constitution, apparently as a result of criticisms made in the dissenting note of Abdul Hamid J of Pakistan. The court concluded that the correct constitutional position was that stated by the Supreme Court in PP v. Pung Chen Choon  1 AMR 689;  1 MLRA 507, and that Parliament and not the courts was the proper judge of what was “reasonable”.
In Azmi Sharom, the Federal Court (which included the learned PCA) similarly departed from Sivarasa on the issue of “reasonableness” and agreed with Pung Chen Choon that it was not for the courts to decide whether or not a restriction imposed by Parliament was reasonable or otherwise. However, the court agreed with Sivarasa that the power to make restrictions under Article 10(2) is not unlimited, and that any such restrictions “must pass the proportionality test” in order to be valid.
The proportionality test adopted in Sivarasa was originally set out in Nyambirai v. National Social Security Authority  1 LRC 64 (Zimbabwe), based on an earlier three-fold test established in R v. Oakes  1 SCR 103 (Canada), and was adopted by the Privy Council in de Freitas v. The Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing  UKPC 30 (Antigua & Barbuda). This test consists of three parts, namely, whether:
(i) the legislative objective is sufficiently important to justify limiting a fundamental right;
(ii) the measures designed to meet the legislative objective are rationally connected to it; and,
(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.
Applying the proportionality test, the Federal Court held, in view of the exceptions contained in s 3(2) of the Act, that s 4(1) of the Act was not disproportionate and did not run counter to Article 10(2).
The criteria of “reasonableness” and “proportionality” have formed the basis of Malaysian jurisprudence on restrictions in relation to fundamental liberties for the better part of a decade since they were first adopted in Mohd Nasir Hashim  5 AMR 702 and Sivarasa. Our courts have by now developed an increasingly rich body of jurisprudence on freedom of speech,1 freedom of expression,2 freedom of the media,3 and freedom of assembly,4 among others.
The proportionality test adopted in Sivarasa and affirmed in Azmi Sharom has its origins in jurisdictions where the “reasonableness” of restrictions on fundamental liberties is expressly required by the respective constitutions.5 In India too, rights conferred by Article 19 (equivalent to our Article 10) are subject only to “reasonable” restrictions on such rights.
Nevertheless, Article 14 of the Indian Constitution (equivalent to our Article 8) has been held to prohibit “arbitrariness”,6 and further requires the application of a test of proportionality whenever there is executive or legislative action that purports to discriminate between classes of persons. It has also resulted in a requirement of reasonableness and proportionality in the application of Article 21 (equivalent to our Article 5).7
In Mohd Nasir Hashim and Sivarasa, the requirement of proportionality was held to derive from the grant of equality in Article 8(1). Reliance was placed on Om Kumar where the process of examining the validity and adequacy of differentia was held to be “nothing but the principle of proportionality”. It is now well-established that discrimination is permissible under Article 8(1) only if it is based on reasonable classification founded on intelligible differentia that bear a rational relation to the object sought to be achieved by the restrictive laws in question.8 In addition, any restrictions on Article 10 rights must not amount to a total prohibition of the basic right so as to nullify or render meaningless the rights guaranteed by the Constitution.9
It takes a further extrapolation from these principles to arrive at the third part of the proportionality test, namely that the means used to impair the right or freedom must be no more than is necessary to accomplish the objective. This step cannot be achieved through Article 8 alone,10 and requires the courts to acknowledge the interaction between Articles 10 and 8. Further, the human rights provisions in Part II of the Constitution do not represent “entirely separate streams of rights that do not mingle”, but “their waters must mix to constitute that grand flow” of unimpeded justice, freedom, equality and fraternity which the Constitution visualises.11
While it may be correct to hold that the courts should not as a matter of interpretation interpolate the word “reasonable” in Article 10(2) where it has deliberately been omitted by the framers of the Federal Constitution, it does not follow that the “reasonableness” of restrictions on Article 10 rights is not a matter for the courts but entirely for the discretion of Parliament. To exclude consideration of “reasonableness” simply because the word does not appear in Article 10(2) would be to ignore the interaction between Article 10 and Article 8, and the inextricable link that arises both conceptually and in practice when a court carries out an evaluation of “proportionality” of executive or legislative actions.12
The Federal Court’s decision to reaffirm the relevance of the proportionality test in Article 10 cases is a refinement rather than a rejection of its landmark decision in Sivarasa. It may be regarded as a conscious decision to preserve and continue to develop our jurisprudence since Sivarasa, and early signs are that it will be applied in this manner by the courts below.13 It is hoped that a robust proportionality test will be advanced in the near future by setting out – with greater clarity – that Article 10 rights can only be restricted if the restrictions are (i) prescribed by law, (ii) sufficiently and lucidly defined, (iii) justified and necessary to pursue a legitimate aim or objective sanctioned by the Federal Constitution, (iv) just and fair, and, in essence (v) do not overreach or lead to an unwarranted interference with our Article 10 freedoms.
Azmi Sharom is further a salutary reminder that the conduct of our Executive and Legislative arms of government cannot escape the scrutiny of the Judiciary especially on issues where the constitutional rights of our peoples are engaged.
1 Muhammad Hilman Idham & Ors v. Kerajaan Malaysia & Ors  6 AMR 481;  1 MLRA 134, CA.
2 Muhamad Juzaili Mohd Khamis & Ors v. State Government of Negeri Sembilan & Ors  1 AMR 673;  1 MLRA 570, CA.
3 Mkini Dotcom Sdn Bhd v. Menteri Dalam Negeri & Anor  MLRAU 351, CA.
4 Nik Noorhafizi Nik Ibrahim & Ors v. PP  5 AMR 854;  6 MLRA 362, CA; Nik Nazmi Nik Ahmad v. PP  4 AMR 1;  4 MLRA 511, CA.
5 See, for example, the Canadian Charter of Rights and Freedoms, s 1 (“such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”); the Constitution of Zimbabwe 1980, s 16(7) (“reasonably justifiable in a democratic society”); and the Constitution of Antigua & Barbuda, s 12(4) (“reasonably justifiable in a democratic society”).
6 EP Royappa v. State of Tamil Nadu AIR 1974 SC 555.
7 Om Kumar & Ors v. Union of India AIR 2000 SC 3689.
8 Datuk Haji Harun bin Haji Idris v. PP  1 MLRA 272, SC and Malaysian Bar & Anor v. Government of Malaysia  1 MLRA 364, FC.
9 Siva Segara v. PP  1 MLRA 259, FC and Vacher & Sons Ltd v. London Society of Compositors  AC 107.
10 See, for example, State of Andhra Pradesh & Ors v. McDowell & Co & Ors AIR 1996 SC 1627, per BP Jeevan Reddy J: “It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down [an] enactment if it thinks it unreasonable, unnecessary or unwarranted.”
11 Maneka Gandhi v. Union of India AIR 1978 SC 597, approved in Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd  2 AMR 317;  1 MLRA 20, FC.
12 See R (on the application of Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions, etc.  UKHL 23 at , per Lord Steyn.
13 See, for example, Mat Shuhaimi Shafiei v. Kerajaan Malaysia  1 AMR 15;  1 MLRA 190, CA.
This commentary appeared in Justice Above All: Selected Judgments of Tun Arifin bin Zakaria With Commentaries (2017) published by the Chief Registrar’s Office, Federal Court and Sweet & Maxwell (pp. 697-703).