[53] It was argued on behalf of the appellant that whether the Sedition Act 1948 is considered to be a
preMerdeka law or a postMerdeka law, the tests to be applied in a constitutional challenge of the
kind as advanced by the appellant would be the same. It was submitted that the appropriate tests to
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
be applied would be by way of considering the following questions:
(a) Whether section 4(1)(c) of the Sedition Act 1948 restricts a person's right to freedom of
speech and expression?
(b) If the question is answered in the affirmative, then the next question to pose would be whether
the restriction is unreasonable and/or disproportionate to its objective?
(c) Should the answers to both questions be in the affirmative, then the court is empowered under
art 162(6) and (7) of the Federal Constitution to repeal the preMerdeka legislation which is
inconsistent with the Federal Constitution. The court too, it is said, is empowered under art 4(1)
of the Federal Constitution to strike down the Sedition Act 1948 if it is considered to be a post
Merdeka law.
[54] The Court of Appeal held that “the Sedition Act is a preMerdeka law ...” All preMerdeka laws
or described as “existing laws” shall continue in force or after Merdeka day. The Court continued:
“While Article 162(1) of the Federal Constitution stipulates as follows:
“Existing laws
162 (1) Subject to the following provisions of this Article and Article 163, the existing laws
shall, until repealed by the authority having power to do so under this Constitution, continue
in force on and after Merdeka Day, with such modifications as may be made therein under
this Article and subject to any amendments made by federal or State law.
[71] This is followed by art 162(6) of the Federal Constitution which states as follows:
162 (6) Any court or tribunal applying the provision of any existing law which has not been
modified on or after Merdeka Day under this Article or otherwise may apply it with such
modifications as may be necessary to bring it into accord with the provisions of this
Constitution.
[72] Where there is a conflict between the existing law and the Federal Constitution, the latter
must prevail. This simple proposition of the law was set by Lord Denning in B Surinder Singh
Kanda v Government of the Federation of Malaya [1962] 1 MLJ 169 (PC) at p 172 (MLJ); p
334 in these trenchant terms:
It appears to Their Lordships that, in view of the conflict between the existing law (as to the
powers of the Commissioner of Police) and the provisions of the Constitution (as to the duties
of the Police Service Commission) the Yang diPertuan Agong could himself (under art
162(4)), have made modifications in the existing law within the first two years after Merdeka
Day. (The attention of Their Lordships was drawn to modifications he had made in the
existing law relating to the railway service and the prison service.) But the Yang diPertuan
Agong did not make any modifications in the powers of the Commissioner of Police, and it is
too late for him now to do so. In these circumstances, Their Lordships think it is necessary for
the court to do so under article 162(6). It appears to Their Lordships that there cannot, at one
and the same time, be two authorities, each of whom has a concurrent power to appoint
members of the police service. One or other must be entrusted with the power to appoint. In a
conflict of this kind between the existing law and the Constitution, the Constitution must
MALAYSIAN JUDGMENTS
Page: 23 of 39
prevail. The court must apply the existing law with such modifications as may be necessary to
bring it into accord with the Constitution. The necessary modification is that since Merdeka
Day it is the Police Service Commission (and not the Commissioner of Police) which has the
power to appoint members of the police service. And that is just what has happened. The
اختر الفقرة المستهدفة3
الاتصال بفقرة
Connect to an entity
Disable highlights
أضف إلى جدول المحتويات