Sedition Act A Stumbling Block to Democracy?
When it comes to individual liberties, can the State and civil society get along? While the State is said to be the guardian of the fundamental rights of its people, it is also the authority that asserts the rights to overrule individual liberties, usually on grounds of public order and national security. The process of tempering the tension between State administration and individual rights has been a bumpy journey.
Freedom of speech is among the fundamental liberties guaranteed by the Federal Constitution, purportedly safeguarded by the State. But does the provision give one the freedom to speak his mind concerning what he perceives as unjust or criticize the government of the day, even if it works against the State’s reputation?
Indeed, history shows that the Sedition Act has been consistently used by the authorities to silence dissident voices and quell political opponents. Here are several examples.
In 1998, Lim Guan Eng (now Penang Chief Minister) was found guilty of sedition for accusing the Attorney-General of failing to properly handle a case involving the Melaka Chief Minister who had been charged with statutory rape of a schoolgirl. In 2003, the then deputy Prime Minister Abdullah Ahmad Badawi (now Prime Minister) openly said that those who opposed the change in educational policy of teaching science and mathematics in English would be charged with sedition.
In March 2006, a minister in the Prime Minister’s department threatened non-Muslims with the sedition charge if they make comments or write articles on Islam. In August 2007, a student studying abroad was threatened with the sedition charge for a six-minute rap video that portrayed socio-political realities of Malaysia. The Government said the video touched on racially-sensitive issues. In November, three members of a Hindu rights groups (HINDRAF) were arrested under the Sedition Act for planning a rally that called for Indians to submit a memorandum to the British High Commission. Most recently on May 8, blogger Raja Petra Kamarudin was arrested and charged with sedition over an article on a murder case implicating the deputy prime minister.
Interestingly, those making heated and provocative racial slurs at the UMNO and UMNO Youth general assemblies in the last two years had not met a similar fate. It does seem like the law has not been applied with fairness and justice in mind.
So, what is the safeguard for the freedom of speech and expression enshrined in the Federal Constitution?
In an interview with theSun, Dr Shad Saleem Faruqi, a professor of law and legal advisor at the Universiti Teknologi Mara, said “from day one, freedom of speech and expression was not one of the better protected rights… The restrictions have been enhanced because of the 1971 Constitutional amendment. We call it the sensitive matters amendment. Now sensitive matters cannot be questioned, even in Parliament. So the law of sedition applies fully in Parliament. So freedom of speech and expression was never really as well protected even on August 31, 1957” (01/10/05).
The Human Rights Commission of Malaysia (SUHAKAM) in its response to the recent arrest of Raja Petra commented that the act was unjustified as remedy could be sought in the court of law. “This is an infringement on the freedom of speech which is a fundamental human right,” it said (The Star, 9/5/08).
There have been calls from various groups to abolish the Sedition Act. They argue that it works against a society that is aspiring to be democratic, just and free.
The media – be it conventional or new, mainstream or alternative – is entitled to its freedom and must be free from political pressure. Knowing that media can effectively shape or alter public opinion, many do realise that the freedom of speech comes with ethical and moral accountability and responsibility to the welfare of the society. To invoke the Sedition Act on those who are deemed to create public disorder or national threat solely from the point of view of the State raises the suspicion of political motivation behind any action.
Any discontent expressed or criticism, whether or not intended for inciting hatred, certainly reflects the extent of public dissatisfaction towards the present structure. The State cannot afford to ignore or silence the voice but to graciously take heed and make effort to address weaknesses within the system. The rakyat want change. Malaysian citizens want good governance and a just society.
We pray for a Government that favours democracy, commits to dispense justice impartially and seek the welfare of the society at large, and looks beyond ethnicity and political differences.
- What is Sedition Act 1948?
It is a law prohibiting speeches (written or verbal) deemed as ‘seditious’. The law was introduced by the British in 1948, intent on curbing opposition to colonial rule. Without the inserted clauses (3) and (4) to the Article 10 which guarantees freedom of speech, the Sedition Act would be unconstitutional.
- What is ‘seditious’?
Broadly speaking, an act, speech, words, publication or other thing that
a. Brings into hatred or contempt or to excite disaffection against any Ruler or against any Government or the administration of justice in Malaysia or in any State;
b. Promotes ill-will and hostility between different races and classes; or
c. Questions any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the specific provisions of the Federal Constitution.
- What is not ‘seditious’?
An act, speech, words, publication or other thing that
a. Shows that any Ruler has been misled or mistaken in any of his measures;
b. Points out errors of defects in any Government, constitution (except in respect of 2.c.), legislation or administration of justice with a view to the remedying of the errors or defects;
c. Persuades the citizens to attempt to procure reform of any matter (except in respect of 2.c.) by lawful means; or
d. Points out any matters producing or having a tendency to produce ill-will and enmity between different races or classes.
- Who shall be guilty of an offence?
- Does or attempts to do, or makes preparation to do, or conspires with any person to do, any act which has or would, if done, has a seditious tendency;
- Utters any seditious words;
- Prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication;
- Imports any seditious publication; or
- Possesses any seditious publication without lawful excuse.
- What are the penalties?
- On conviction, a person with first offence will be liable to a fine not exceeding RM5,000 or to imprisonment up to 3 years or both; for subsequent offence, to imprisonment up to 5 years.
- A person found guilty of possessing seditious publication shall be liable for a first offence to a fine less than RM2,000 or to imprisonment up to 18 months or both, and a subsequent offence, to imprisonment up to 3 years.
- Any seditious publication found will be forfeited and destroyed or otherwise disposed as the court directs.
- Should there be search warrant?
- The magistrate can issue warrant empowering the police to enter any premises where any seditious publication is known or is reasonably suspected to be.
- The police can enter and search the premises without a warrant if they have reasonable grounds to believe that it conceals seditious publication.