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Judges told to take the ‘tooth comb’ approach in sedition cases

 | December 21, 2016

Court of Appeal says judges should make a positive assertion in their grounds of judgment whether they honestly believe the words uttered are seditious.


PUTRAJAYA: The Court of Appeal has advised trial courts to take a “tooth comb” approach to scrutinise and evaluate disputable statements when presiding over sedition cases.

Justice Prasad Sandosham Abraham said judges should then make a positive assertion in their grounds of judgment whether the court honestly believed the words uttered were seditious.

“We suggest that courts take the ‘tooth comb’ approach in deciding whether the impugned words have seditious tendencies.

“We note that is glaringly absent in this case.”

Prasad had yesterday delivered the verdict to acquit former student activist Muhammad Safwan Anang of a sedition charge where he allegedly urged the public to topple the government through street protests three years ago.

Others on the bench were Mohtarudin Baki and Zakaria Sam.

The 15-page judgment is now available in the judiciary’s website.

Safwan is said to have urged the public to topple the government through street protests during a gathering at the Selangor Chinese Assembly Hall on May 13, 2013.

Several other activists and politicians spoke at the meeting held a week after the 13th general election, amid nationwide protests that the Barisan Nasional had won the elections through unfair means.

In 2014, the Sessions Court sentenced Safwan to 10 month’s jail and fined him RM5,000. On appeal, the High Court only maintained the fine.

Prasad said the bench had perused the grounds of judgment of the Sessions judge and did not find any seditious tendencies.

“It is further our view, in light of the fact that a statement carrying the presumption of seditious tendency is almost akin to an offence of strict liability, that the court must scrutinise and independently evaluate the impugned statement to see whether the language used comes within the bounds of sedition rather than free speech.”

He said such failure was a serious misdirection in law which would render a conviction unsafe.

Prasad said all Safwan said in his statement was to go out and protest, to register dissatisfaction and lack of confidence in the ruling government, but nowhere was there any element tending to make the government insecure.

“Having perused through the statement ourselves, we are satisfied the statement does not have a seditious tendency.”

He said Safwan should not have been called to enter his defence since the prosecution had failed to prove a prima facie case against him.


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