The never-ending polemics over the Sedition Act

On Jan 16, Kadir Jasin, the media adviser to the prime minister, was summoned for the second time by the police to give his statement in relation to his writings on the rulers.

The first time was in May last year when he was questioned under the Sedition Act 1948 over an article calling for reforms to the royal institution and an expose on the spending by the previous Yang di-Pertuan Agong. This time around, it was over an article in October last year on Kedah ruler Sultan Sallehuddin Sultan Badlishah. Presumably the latest investigation is also being conducted under the Sedition Act.

A few days earlier, Lokman Adam, a member of the Umno Supreme Council, was arrested, also under Sedition Act, for alleging that the Pakatan Harapan (PH) government was protecting those who killed fireman Muhammad Adib Mohd Kassim.

There is a sense of poetic justice in the whole episode, knowing that the investigations cut across the political divide with one suspect being a key member of the ruling PH while the other is a key member of an opposition party.

The question that needs a clear answer from the police is why continue using the Sedition Act when the PH government had assured it was reviewing the act? In the run-up to the 14th general election, PH gave an unequivocal promise that it would repeal the act if it came to power.

The fact that many cases continue to be investigated by the police under the said act since PH came to power has not gone down well with many people. Many parties have expressed misgivings and dismay with PH for reneging on its promise.

Most people are pragmatic enough to accept that in order to preserve law and order in society, the full weight of the law must be brought to bear on offenders and mischief makers. But the issue here is, why use a repressive Sedition Act on them when there are adequate provisions in the Penal Code and other acts that can serve the same purpose? The Sedition Act is seen as an oppressive tool as it does not comply with the rules of natural justice. Why are the police acting contrary to the government’s reform agenda? Is it a case of overzealousness or outright failure to understand the new narratives of the PH government?

The former editor-in-chief of Utusan Melayu, Johan Jaafar, had lamented the use of the Sedition Act against Kadir in the earlier case. He said: “There are many other laws that can be applied to charge Kadir, if need be, but to investigate or charge him under the Sedition Act is totally against the spirit of today’s Malaysia.”

Recently, after three young internet users were arrested by the police for posting adverse comments on the Agong on social media, Dr Mahathir Mohamad said the enforcement authorities did not understand what sedition meant. He said there was a need for the law to spell out clearly what actions or words could be construed as seditious or insulting to the monarchy.

Mahathir said the public is free to comment on or lodge complaints against those who break the law, and that these acts are in no way seditious.

“Citizens can make reports on these matters or openly speak about them. From the rulers to the prime minister and ministers, to civil servants and ordinary citizens – the rule of law applies to everyone,” he added.

In response, Ramkarpal Singh said Mahathir was not legally right in his reading of the law and not exactly right in his interpretation of seditious actions or words as provided in the act.

Nevertheless, Mahathir’s blog post serves as a great statement of intent and has to be seen as an emphatic political commitment by the government to the matter. From a political point of view, Mahathir’s statement is to be lauded and welcomed by critics and opponents of the said act.

The Sedition Act

The Sedition Act 1948 (revised in 1970) is an archaic pre-Merdeka law enacted by our colonial masters with the intent of curbing opposition to colonial rule. It makes it an offence to do anything which has a “seditious tendency” or to utter any seditious words.

“Seditious” is defined in the act as any act, speech, word, publication or other thing which qualifies one as having a “seditious tendency”.

What constitutes “seditious tendencies” is couched in archaic and vague language in Section 3(1) (a)-(f) of the act.

One of the biggest criticisms of the Sedition Act is that by virtue of Section 3 (3), intention is irrelevant. In other words, even if the accused person had absolutely no intention of being seditious and made the alleged seditious remarks innocently, it will have no bearing on the case.

Normally, criminal offences have two elements: the guilty act and the guilty state of mind.

In a landmark decision, the Court of Appeal ruled in late 2016 in the case of Mat Shuhaimi Shafiei that Section 3 (3) of the Sedition Act was unconstitutional as it violated the right to freedom of speech as guaranteed by the Federal Constitution.

The three-member panel of justices Lim Yee Lan, Varghese George and Harmindar Singh said intention must be proven in every sedition case.

Early this month, a five-member bench of the Federal Court, led by Chief Judge of Malaya justice Ahmad Maarop, allowed the government’s appeal, and set aside the landmark decision by the Court of Appeal. The court ruled that there was no need to prove intention to the offence of sedition. But the court did not make any ruling on the constitutionality of the said section.

So we can take it that the issue is far from settled. We can expect more questions to be raised and clarifications sought in court on the matter in due course.

It is interesting to note that in a recent lecture series, Gopal Sri Ram, a former Federal Court judge, said the British-inherited Sedition Act was unconstitutional as it was a pre-Merdeka law.

He said that by virtue of Article 10 (2) of the Federal Constitution, only Parliament has the power to impose restrictions on freedom of speech.

“The Sedition Act is an existing law. It is all right. You can frame it up on your wall. But you cannot enforce it or prosecute anyone under it because it is not a law made by Parliament.”

Be that as it may, all that may be purely academic in nature and become a moot point in view of the impending decision by the government to either repeal the act, fine-tune it or introduce a new law.

Controversy

Many critics and opponents have criticised the act on account of it being oppressive, draconian and repressive with blatant disregard of established legal principles. The Human Rights Commission of Malaysia, or Suhakam, has also questioned why MPs who claim to support transformative democracy, some of whom were victims of the Sedition Act themselves, have allowed such a regression to happen. The Bar Council, Suaram, Aliran, Amnesty International, the American Bar Association, and Centre for Independent Journalism have all expressed dismay at the government’s indecisiveness and lackadaisical attitude on the matter.

Admittedly there are some defenders of the act. Umno, Perkasa and a few other ultra-Malay groups are the most vociferous among them. But these are just minority groups which were swept aside in the general election. Theirs is now a voice which is no longer seen as in sync with the aspirations of the brave new Malaysia.

A few days ago, a senior practising lawyer, Aziz Rahman, insisted that the act must stay to preserve law and order and that it was seditious for anyone to question its sanctity. He even challenged others who said otherwise to an open debate with him. Had it not been for the highly sensitive and provocative nature of the subject, many would have gladly accepted the challenge. But an open and confrontational debate on such a subject attended by racial bigots and chauvinists will not be conducive to a peaceful resolution to the subject. The best approach is by way of open intellectual discourse for both sides to articulate their views and opinions. Let the people evaluate the strengths and merits of their arguments.

To put it mildly, Aziz’s interpretation and approach to the act is not only baffling but does not jive well with the stand generally taken by the legal fraternity.

It is high time for the government to make a decision on the matter. It cannot allow the imbroglio on the issue to go on much further. It would appear that when all things are considered, the right way forward is for the government to repeal the act. Perhaps a new law based on established and acceptable legal principles could be enacted to replace it. Reviewing or fine-tuning the law but still premised on the same old draconian and flawed legal principles is not an option to be considered if the government is indeed working towards the creation of a truly egalitarian society. It is now time for PH to walk the talk on the matter.

Wan Haron Wan Hassan is a senior lawyer. - FMT