How does a government stay in power? By fighting any opposition it confronts. How then does a government fight opposition? In Malaysia, it is by victimising any voice that critically questions the ruling elite and its methods of government. A mere comment on a political crisis that may mature into a constitutional issue could warrant such extreme persecution. Such was the case of law academic, Associate Professor Dr Azmi Sharom, who was one of the many who were charged under the Sedition Act 1948.
Introduced by the British in 1948 to curb civil disobedience against the colonial rule, the Sedition Act is still in existence six decades later; except now, the government exercises this tool of oppression against politically vocal citizens.
This Act arbitrarily limits the freedom of speech, hinders critical political growth and most notably, is a violation of a fundamental human right. To quote Christopher Leong, president of the Malaysian Bar, “the Sedition Act is repugnant because the Sedition Act seeks to compress and restrict democratic space. It punishes speech. It punishes expression of thought by thinking Malaysians.”
In a span of a little over one month, commencing from the end of August this year, Malaysia’s Attorney-General Tan Sri Abdul Gani Patail led a sedition blitz in the name of this draconian Act by which over 30 persons were investigated and over 20 persons were charged for criticising the government or government officials. Those charged included opposition politicians, a law professor, human rights and political activists, a journalist, Malaysiakini (an online news portal) and a Muslim scholar. These people had allegedly uttered or published seditious statements and this amounts to a criminal offence under Section 4 of the 1948 Act.
Section 2 of the Act defines “seditious” as anything that has a “seditious tendency”. The Act then goes on to define “seditious tendency” under Section 3 (1) as any tendency to “bring into hatred or contempt or to excite disaffection against” the government or to instigate “feelings of ill-will and hostility between different races”. It also prohibits the questioning of rights and statuses protected by Articles 152, 153 and 181 of the Federal Constitution that deal with the national language, the special position of the bumiputras and the sovereignty of the Malay rulers respectively.
The court in PP v Mark Koding [1983] 1 MLJ 111, however, decided that before a statement is said to have seditious tendencies, the statement must be viewed in the context it was made.
The gravity of concern nevertheless lies in the method and reason this Act is being utilised and optimised. As per retired Court of Appeal Judge Dato’ K C Vohrah, there are two inherent processes when dealing with this Act. The first is the court process where the mens rea or intention is irrelevant and a person would be convicted if seditious words were uttered. Thus, the Act makes sedition a strict liability offence, allowing no room for the defence of truth: the presence of an innocent or honourable intention, absence of consequent harm, or a lack of possibility or potential for consequent harm would be immaterial. This is oppression at its best.
The second process entails the A-G’s decision as to whether or not a person is to be charged under the Act. The alarmingly obscure definition of sedition has assisted the prosecution in opening the floodgates to the criminalising of a variety of offences. In fact, considering Malaysia’s poor state of separation of powers between the ruling government and the prosecution, it is near impossible to deny that the sedition charges made by the prosecution were for the political convenience of the government. This is evident through the sedition charges slapped on more than half a dozen opposition members of parliament. In view of this, the Human Rights Watch urged that the “Malaysian government should cease using the country’s sedition law to arbitrarily arrest opposition lawmakers, activists and critical academics.”
More disturbingly, the existence of the 1948 Act contradicts Article 10 (1) of the Federal Constitution which guarantees every citizen the right to freedom of speech, assembly and association. Nonetheless, clauses (2), (3) and (4) expressly permit parliament to impose restrictions on this freedom in the interest of the security of the Federation, friendly relations with other countries, public order or morality. It appears that the Sedition Act falls within the framework of the Federal Constitution. To quote Justice Raja Azlan Shah (later the Yang di-Pertuan Agong of Malaysia), “the right to free speech ceases at the point where it comes within the mischief of the Sedition Act.”
Clauses (2), (3) and (4) of Article 10 have drawn copious criticism from human rights activists. In the 2003 Memorandum on the Malaysian Sedition Act 1998, ARTICLE 19, a London-based human rights organisation, inked that the subsistence of the Sedition Act had gone beyond that of necessity as a result of parliament’s low standard of what it deems to amount to necessary restrictions.
According to Phil Robertson, the deputy director of Human Rights Watch’s Asia division, the injudicious enforcement of the Act inevitably culminates in a “slippery slope to an authoritarian rule.” This is by virtue of using the Sedition Act to “assert power over the people and to create a climate of fear,” says Ambiga Sreenevasan, former president of the Malaysian Bar and former chair of Bersih (a coalition of NGOs calling for free and fair elections). “And it’s working,” she adds. Robertson adopted a similar view by holding that the government is “increasingly using the Act to instil fear and silence in political opponents and critics.”
Incontestably, the curtailment of a fundamental right is detrimental to a country’s political and social growth. According to Amartya Sen, a Nobel Prize-winning economist, “the success of a society is to be evaluated primarily by the freedoms that members of the society enjoy.”
Sen advocates that development is the process of expanding human freedom whereby the promotion of the freedoms of press, speech and assembly cultivates clean, honest and accountable governance. In his book, Development as Freedom, Sen listed “political freedoms” which include a functioning democracy, freedom to scrutinize and criticize actions of authorities, freedom of expression and speech, and the presence of a free press to be one among five other types of freedoms that “tend to contribute to the general capability of a person to live more freely.”
The Universal Declaration of Human Rights in its preamble expresses that “the advent of the world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.”
Unfortunately, as long as the Sedition Act continues to be in existence and continues to have arbitrary power vested in it, Malaysians will never truly have a decent degree of freedom of speech. Utilised by the ruling elite to subdue any form of political resistance against its 57-year reign, the Sedition Act will never cease to oppress Malaysians, unless abolished.
(source: http://www.legalscribbler.com/#!malaysias-sedition-act-the-prized-poss/c2513)
