SEPTEMBER 23 — The law of Sedition is an old law, as in a very old English law enacted in 1275 as the Slander and Sedition Act or commonly known as seditious libel during the troubled time of King Edward the 1st. The law at that time acts as to criminalise contempt and incitement of his divine right. According to an American law professor Geoffrey Stone, wrote in his book Sedition and Domestic Terrorism, that the meaning of sedition evolved and contoured itself since its enactment, hence making it wide and ambiguous. He argues that due to lack of definition, seditious libel captures criticisms on all forms ranging from the constitution, policies, laws, officers, symbols, or the conduct of government. The rationale behind the Sedition law was simply; If government is to govern effectively, it must command the respect and allegiance of the people.
The Sedition law ever since, were used in all type of scenarios, as it makes it easier and cost effective to charge and convict a person in the absence of intention as a proof. The modus operandi was to instil fear by making an example out of the deviants be it true or false. The Sedition Act also blind in accessing any significant impact or actual threat to the security of the nation or public to establish seditious tendencies. For an example, recently in another former colony Uganda, an article that made fun of the canvassing efforts of President Yoweri Museveni’s ministers, “That they would be better off talking to the president’s cow”, landed the journalist in prison for a week. It is not a secret that Sedition is an inherently political and politicised offence that often preys on politicians and their operators.
The Sedition law in Malaysia was enacted through the Sedition Act 1948 with similar rationale and used to stifle down prejudicial political activities and to punish sensitive remarks and actions. The Sedition Act in Malaysia mainly covers the offences such as inciting disaffection against the government, inciting contempt for the administration of justice and provoking discontent among the people as stated in Section 3 (1) (a) (b) and (c). The scope was primarily to protect the sovereignty of the government, the rulers and the judiciary.
The Sedition Act then underwent amendments after the Mei 13 riots, where Parliament introduced a new Section 3(1) (e) on race relation and against promotion of feelings of ill will and hostility between different races or classes and Section 3(1) (f) on matters of citizenship, Bahasa Melayu, the special position of the natives in Malaya and Sabah/Sarawak as well as the sovereignty of the Malay Rulers were included in 1970. The amendment was widely supported by parties from both side of the August house. The amendment also expands the laws application against any civilians. This provision also grew to add bite to the current world of social media where ‘Now Everyone Can Be Seditious’.
The Sedition law ever since became a household name as an effective tool to maintain peace and harmony in a fragile multi religious and multi-cultural Malaysia. The method of making an example out of the political deviants became a proven method in the utilitarian manner as for the greater good of the nation; it’s justifiable to lock a few deviants up. The formula is also popular with our neighbour, Singapore who continued to use the law despite the fact that the nation’s founding father was once a victim of this controversial law.
Sedition as a political tool
According to a 1999 Amnesty International report titled Malaysia: Human Rights Undermined: Restrictive Laws in a Parliamentary Democracy, The Sedition Act were allegedly used as a political tool to prosecute law makers and politicians. The allegation was further strengthened with the fact that In 1971, Article 48 of the Constitution was amended to extend the application of the Sedition Act to parliamentary privilege where a fine more than RM2,000, or jailed for more than a year would automatically disqualify a MP from parliament.
The report also stated several cases involving DAP Parliamentarians from the 1971 case of Fan Yew Teng and Dr Ooi Kee Saik for publishing an article on racial discrimination as well as the 1995 case of Lim Guan Eng on the Abdul Rahim Tamby Chik affairs among others. The long arms of the Sedition Act were also extended to Barisan Nasional MP in the 1982 case of Mark Koding, for remarks in the Dewan Rakyat questioning the government’s policy on allowing vernacular schools including the use of Chinese and Tamil on road signboards.
The Sedition Act is also popular among the opposition parties for a different reason as the rhetoric of Sedition becomes a very powerful vote magnet. In December 2008, YB Lim Kit Siang invoked the issue of Seditious Tendency in a Parliamentary statement that Mukhriz Mahathir committed a seditious offence in calling for a single stream school and abolishment of vernacular schools. In September 2009, he again in an article questioned the PM on why Home Minister YB Hishamuddin H.Onn was not charged with sedition when he justified the cow-head protest in Shah Alam. In May 2013, The DAP Secretary General went on record stating that “former education Director-General Abdul Rahman’s call for the abolition of Chinese and Tamil vernacular schools in favour of a single stream school is seditious’.
In 2008 DAP MP Tony Pua also invoked the Seditious Act during the Ahmad Ismail saga when he stated that chinese are ‘penumpang’. He also invoked sedition against Utusan Malaysia on a few other occasions. In February 2013, Pahang DAP Deputy Chairman Zulpuri Shah Raja Puji lodged a police report on an article titled “Najib: Vote Barisan for a far better future”, for implying that Pakatan Rakyat would cause Islam’s downfall. It was just in June 2014, a few DAP lawmakers filed police reports against Ikatan Muslimin Malaysia (Isma) President Abdullah Zaik Abd Rahman for remarks calling Chinese immigrants to Malaya as “intruders”.
The party in many circumstances have taken matters under the seditious framework especially relating to issues of race and religion including the position of vernacular schools. It is clear, that the party is a secret admirer of the Sedition Act, even though many of its leaders were victims of the said law before, more so that DAP is also the state government of Pulau Pinang that faces regular protest from the Malay right wing groups.
Offence is taken, not given
The Federal government also invoked the Sedition Act on the feeling of ill will and hostility between the races as seen in the case of the infamous sex blogger Alvin & Vivian and David Orok in Sabah. It is to be noted that even though the position of Islam were not expressly stated in the Sedition Act, actions on the subject of religion were justified as per Section 3(1) (e) against promotion of feelings of ill will and hostility between different races or classes.
While Sedition Act was often slapped on those causing religious tension with specific reference to Islam, the law were also extended on muslim groups for similar reasons. In 2009, 12 individuals were convicted under the Sedition Act for using a cow head during a protest with the tendency to incite and create feelings of unsatisfactory and animosity towards Hindus.
This attempt to punish religiously insensitive comments carries a mix view while many supports the notion of non-compromise when it involves religious sensitivity, others allege selectivity in implementation especially by the non-muslims. The application of Sedition on religious sensitivity is highly controversial as the parameters of sensitivity involving religion is highly subjective and wide. The 2014 case of a teenager who was investigated for clicking “liked” on a pro-Israel Facebook post would serve as a reminder of the danger of such subjectivity and fragile sensitivity.
We are actually living in the time and age where people get offended by cat pictures in Facebook that could cause a ruckus in one’s social life including divorce. The notion of hurting the feelings of the others in this internet era have become religious itself especially when smart phone technology meets the intoxicating culture of ‘Aramaiti’. This section of Sedition is also controversial as it extends beyond politicians and to common civilians.
A political culture of punishment
According to James F. Stephen’s book A History of the Criminal Law of England, Sedition is an inherently political and politicised offence. The word “sedition” is derived from the Latin word “seditio”, which literally means “a going aside” or departing from established authority and norms.
The law is not above or outside of society; it is the reflection of society at a given moment in its evolution. As per James Stephen definition, the existence of sedition depends on the socio-political norms of the land and its public attitude towards insensitive comments. The race base and religion base politics and politicisation of insensitive remarks and actions for political mileage continues to create this fragile climate that breeds for such laws. We are a nation that demands for punishment and executive action as a solution instead of engagement over politically incorrect and insensitive remarks and actions.
The application of Sedition is also due to our lack of intellectual culture and objective debate as the sword becomes mightier than the pen when race and religion becomes the subject. In October 2013, the PKR’s sole Member of Parliament in Sabah infamously said that Sabah Mufti Bungsu should pay for calling Kadazans an “invented race”. The matter was dealt with more hate comments and police reports instead of public education of the communities’ rich culture and history. The incident shows that Malaysians generally view matter of race and religion insensitivity very seriously and as a crime. The other case that falls into this category is of law professor, Azmi Sharom, a perfect candidate for a public debate and engagement than a seditious charge. It’s either we lack the capacity or just engulfed in hate politics.
The Sedition Act is a double edge sword, with one side that strips down freedom of expression while on the other a vicious weapon for social harmony and peace. So, are we really ready for a Malaysia without the Sedition law? It’s more than a template campaign to repeal a colonial law as we have fed and raised this law in the interest of our politics and harmony as a norm.
The Sedition Act is also unique in comparison with the Penal Code as in Chapter VI (Offences Against The State), Chapter VIII (Offences Against Public Tranquility) and Chapter XIV(Offences Affecting The Public Health, Safety, Convenience, Decency and Morals). The Penal Code Acts as to punish a crime already committed or in commission or progress and lacks in early preventive bite. The question of Malaysian quest for harmony as in to act early and prevent a crime of such matters right at its root doesn’t make the Penal Code as the right candidate either.
The other option of Harmony Act is also viewed with suspicion by certain quarters as in its effectiveness as the proposed law imposed the importance of actual threats and intention to cause harm or in furtherance of violence as its precursor. The position is in-line with international standards but the law misses a key point that Malaysians strive for as in to criminalise insensitive comments especially when it touches on the sensitive subjects of race, religion the rulers or the sovereignty of the state. We also have a growing trend of racial and religious political groups from Hindraf, ISMA to the Council of Churches who are extremely vigilant towards insensitivity, from curry powder to proselytisation in the political interest of their race and religion.
The question remains to be deliberated. Will the Chinese tolerate an open campaign for the abolishment of the Vernacular schools? Will the Malays tolerate publication questioning the Al Quran and hadis? Will the indigenous people of Malaya and Borneo tolerate questioning of the special position as an indigenous people and their religious rituals as idolatry? Will the Indians tolerate the exploitation of their sacred animal and insensitive terms used in social media? And will the Christians tolerate a Church of Autobots and Optimus Prime on a crucifix?
It’s about time the government set up a Parliamentary Select Committee to review the Sedition Act with a view to allow greater public engagement and debate and for an objective decision on this controversial law as a matured nation. The proposal to replace the Sedition Act with a new law or to remove it outright is just an act of putting the cart before the horse. The solution to the Sedition Act is beyond its abolishment or replacement but a major blueprint and strategic plan in terms of the countries socio-political landscape, culture and norms.
* This is the personal opinion of the writer or organisation and does not necessarily represent the views of The Malay Mail Online.