Perlembagaan Persekutuan; and (ii) Sama ada Akta Hasutan 1948 suatu Akta yang
sah dan berkuatkuasa menurut Perlembagaan Persekutuan”. [4]
Considering the two questions posed to us, we agree with the plaintiff that it is more
appropriate to consider the second question first as it concerns the validity or
enforceability of the entire Act. In the event that we answer the second question in the
negative then the first question no longer arises. [5]
Second Question
The second question concerns the validity or enforceability of the entire Act against
the relevant constitutional provisions. At this juncture, it would be pertinent to briefly
consider the origin of the Act. The Act was first enacted as the Sedition Ordinance
1948 (the Ordinance) by the Federal Legislative Council and came into force on
17.7.1948. The Ordinance had effect throughout the Federation of Malaya. The
Ordinance sought to consolidate the various existing Sedition Enactments in the Malay
States and in the Straits Settlements into a single law. The Ordinance was later
revised in 1969 under the Revision of Law Act 1968 and renamed as the Sedition Act
1948 (the Act). It is therefore a pre-Merdeka law. Undeniably, the Act has the effect of
restricting the freedom of speech and expression as enshrined in Art.10 (1) (a) of the
Constitution. Being a pre-Merdeka law, naturally the Act was not enacted by
Parliament as Parliament was only established after Merdeka. [6] – [10]
Premised on the terms “Parliament may by law” and “Parliament may pass law”
appearing in Art. 10(2) and Art. 10(4), learned counsel for the defendant contended
that only Parliament has the sole authority to make law to restrict freedom of speech
and expression and not any other bodies or authorities. This the defendant contended
is clear from the plain language of clauses (1), (2) (a) and (4) of Art.10. Further, learned
counsel contended that it is for Parliament to consider whether such a law is necessary
or expedient on the grounds listed in the said Article. No other body is clothed with
that authority. In support, learned counsel referred us to the case of Dewan Undangan
Negeri Kelantan & Anor. V. Nordin bin Salleh & Anor. (1) [1992] 1 CLJ Rep 72. That
is a case concerning freedom of association as provided under Art. 10 (1) (c) of the
3