KUALA LUMPUR: The increased volume of hate speech, particularly online, relating to race, religion and royalty in Malaysia’s plural society has seen freedom of speech and expression being abused, said Attorney-General Tommy Thomas.
He said the challenge for the Attorney-General's Chambers has been to balance an enhanced freedom of speech after the 14th general Election (GE14) with that of widespread hate speech which has hurt the feelings of the people.
“When prosecution has to be done, we will rely on the Penal Code, but where there are no alternative under our laws, in appropriate cases we cannot rule out applying the Sedition Act, until it is repealed,” he said in a statement today.
Thomas said upon assuming office in June last year, he decided, having regard to alternative laws in Malaysian statute books (including provisions in the Penal Code), to only turn to the Sedition Act as a measure of last resort.
“Because the Sedition Act is still a law, it cannot be totally disregarded. That can only occur if Parliament repeals it. Since GE14, however not a single person has been charged under the Sedition Act”, said Thomas.
He said in cases under the Sedition Act which were pending in the courts in May 2018, regardless at what stage, the AGC’s policy was to review each case on an individual basis depending on its peculiar circumstances.
“We only act on written representations from an accused or his lawyer. This promotes transparency and accountability,” he said.
Thomas said the PP V Wan Ji Wan Hussin case has once again brought to sharp focus the continued use by the AGC in prosecuting offences under the Sedition Act, 1948, and the misinformation surrounding the subject.
“The facts are as follows:
“First, the Sedition Act is among the Acts of Parliament that the Pakatan Harapan manifesto states would be repealed.
“Secondly, the Cabinet has not informed the AGC of any decision to repeal or amend it. Under our system of government, it is the Cabinet that decides on behalf of the Executive, to enact, repeal or amend laws for presentation to Parliament, with AGC assisting in the drafting of new laws.
“Thirdly, the Cabinet has not “instructed” the AGC to refrain from relying on the Sedition Act. Such an instruction would not, in any event, be lawful because it would offend the discretionary power under the Constitution vested solely in the office of the Attorney General to decide on prosecutorial matters on behalf of the State.”
On Wan Ji’s case, Thomas said the accused was found guilty on April 9, 2018, and sentenced to 9 months' imprisonment.
He said the accused filed an appeal against the conviction and the public prosecutor cross appealed on the sentence against the independent Muslim preacher on April 9, 2018.
“Both the appeal and cross-appeal were mentioned before the Shah Alam High Court on April 30, 2019. Neither the accused nor his counsel appeared in court that day”.
Subsequently, the High Court directed parties to file written submissions and fixed July 9 this year for decision.
On July 9 the High Court decided as follows:
(i) the appeal against conviction was dismissed; and
(ii) the cross-appeal against sentence was allowed, with the High Court enhancing his imprisonment from 9 months to 1 year.
Thomas said the stay of execution application orally made on behalf of the accused was dismissed by the High Court, which directed that a formal application in writing be made. Thus, the accused began his sentence on July 9.
“The formal application to stay was filed yesterday (Thursday), and the High Court granted it today (Friday). The public prosecutor did not object.
“Hence, the present position is that the accused is on bail pending the hearing by the Court of Appeal of his appeal.”
Thomas said from this sequence of events, it would be clear that the cross-appeal by prosecution on sentence was made prior to GE14.
“No written representations were ever made by the accused or his lawyer to me, and I was not personally aware of this matter until after the decision of the High Court on July 9, 2019, became publicly known.
“This is hardly surprising because on any given working day, the Federal and 13 State governments are involved, literally, in hundreds of criminal and civil cases in all the courts of the land.
“It is therefore impossible for any one person to be personally acquainted with even a tiny fraction of these cases.
“Hence delegation and decentralisation of authority are essential. This Chambers is studying the options open to it with respect to Wan Ji’s appeal before the Court of Appeal, but having regard to his conviction by two Courts, the margin of discretion in my office is substantially limited,” said Thomas.