-Anusha Arumugam, June 8, 2013.

It is unfathomable, absurd almost, how Zulkifli Noordin (bowho publicly insulted and viciously mocked Hindu-worship idols, inciting grievous anger and hostility amongst the Indians was not in the slightest reprimanded for his highly seditious remarks while P. Uthayakumar has been slapped with a 30-month jail sentence for his statement in a letter to the then British Prime Minister Gordon Brown in which he used the phrase “state-sponsored social ethnic cleansing of the Indian poor in Malaysia”. If one is to weigh and compare the damage done by both parties, Zulkifli Noordin and Uthayakumar, Noordin’s would massively outweigh that of Uthayakumar’s.

I am not suggesting the use of the sedition act, but asking why the selective prosecution?

This grave injustice lies within the implementation of the Sedition Act under which Uthayakumar had been charged and prosecuted. While Parliament legislates the law, the Judiciary interprets and applies the law. The Sedition Act 1948 legislated before independence, harbours the ultimate purpose of criminalizing and prohibiting any discourse deemed seditious in the eyes of the Executive.

According to section 3 of the Sedition Act, a “seditious tendency” is to incite “hatred or contempt” against any Ruler, Government, administration of Justice in Malaysia or Yang di-Pertuan Agong; to promote “feelings of ill will hostility” between different races or classes; and to “question any matter, right or status” regarding the reservation of quotas for Bumiputeras. Hence this Act puts a limit to Article 10 of the Federal Constitution which provides for a citizen’s fundamental liberty of freedom of speech, assembly and association.

The Federal Constitution, the supreme law of this Land, has provided under Article 10 the right to speak, to voice discontent and to initiate channels for addressing any injustice of the state against its citizens. It is a liberty that is so fundamental for a functioning democracy; it’s a tool to demand the elected government become accountable for its conduct.

Article 10 (1) (a) of the Federal Constitution states that every citizen has the right to freedom of speech and expression but this is subject to Clauses (2), (3) and (4). However, only Clauses (2) (a) and (4) are related to (1) (a). Clause (2) (a) states that Parliament may lawfully impose restrictions to the freedom of speech and expression if necessary, made in the interest of national security, or friendly relations with other countries, or against disruption of public order or morality, or challenge to the privileges of Parliament or lastly, provide against contempt of court, defamation or incitement to any offence.

As the de facto leader of HINDRAF, Uthayakumar had written, documented and argued extensively on three Indian issues that demanded national attention.  First, the failure to conduct an open inquiry into the Kampung Medan ethnic violence in 2001; secondly, the alarming number of deaths in custody cases and police shootings of Indian youths; and thirdly, the manner in which Hindu temples were demolished by the authorities. He argued that the government is insensitive to the Hindus, that the Indians were the soft targets of the enforcement agencies and that justice is compromised in the case of Indians. Was he wrong in concluding that the State was behind a socio- ethnic cleansing of the Indian poor in Malaysia?

Having in mind Uthayakumar’s arguments, he has not made any threats to national security, nor challenged friendly relations with the UK, and in the least, he has not disrupted any public order or morality nor has he challenged any Parliamentary privileges nor has he committed  any contempt of court, defamation or incitement to any offence. Even if he did, there are enough provisions in the Penal Code under which he could be charged and tried. But the government chose the archaic Sedition Act for its arbitrary application instead of Penal code. In the former he is guilty even without any intention, while in the latter he is innocent until proven guilty based on his conduct and intention.

By criminalizing Uthayakumar for his “seditious tendency”, the Courts have to that extent criminalized the crux of his course of actions and the fundamentals he fought for. His constituents are the minority Indians who are marginalized and poor. Punishing him is tantamount to silencing the voice of the poor Indians.

Ordering Uthayakumar to serve a 30-month jail sentence for a “seditious” statement is madly disproportionate and without any sense of justice. It merits nothing less than outright condemnation.