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Limbo between criticism and sedition

October 3, 2014

Do you know that you could possibly be charged for sedition if someone hacks your Facebook status?


By Adrian Lim

najib300The right to freedom of speech and expression is enshrined in the Federal Constitution under Article 10 (1). This freedom however, is not an absolute right, as Parliament under certain circumstances may impose restrictions as provided under Article 10 (2). As we move into a phase where the demand for information is at an all-time high, we witness that Malaysian society is getting more mature politically. As such, the need for such freedom is all the more justified. However, there is a limbo between what is constructive criticism and what is seditious.

As articulated by most opponents of the Sedition Act, this piece of law has to go because of three distinctive elements: First, the scope of what can be considered “seditious” is in fact a carte blanche for those in power to silence dissidents or critics. Second, the blatant disregard of the truth behind so-called “seditious” goes against the very purpose of having laws enacted. Finally, ignorance of the accused’s motives will result in constructive argument being stemmed.

Sections 3(1)(a) to 3(1)(f) explain what is considered seditious. But the problem with these provisions is that they are worded too loosely and broadly. The words “hatred”, “contempt”, “dissatisfaction” and “discontent” under Section 3(1)(a), for example, are extremely subjective. It is your interpretation against mine.

If a citizen were to accuse the government of corruption and cause disaffection among the people against the government, he could be charged and possibly be sentenced under Section 3(1)(a) of the act. Who, then, can challenge government policies or point out its mistakes? What then, is the opposition for?

On the other hand, certain provisions under the act might seem to justify the need for this act. Section 3(1)(e) provides that promotion of ill will or hostility between races or classes is tantamount to sedition.

Let us take a break and look at the likes of certain rights group leaders inciting Muslims to burn Bibles containing the word “Allah”, or even certain teachers or school principles recommending students of certain ethnicity to go back to their country of origin. Worse still, we have had ministers or leaders of a certain political party threatening to soak the keris with a certain race’s blood. Don’t any of these situations then, fall under Section 3(1)(e)? The question is, were any of them charged? If no, this might well be a case of selective prosecution.

The blatant disregard of the validity of referring to certain remarks as “seditious” suggests that the importance of silencing critics outweigh the importance of seeking truth and justice. Going back to the example involving corruption, the whistleblower mentioned would probably still be charged under this draconian law even if what he alleged was true. On many occasions over the past 50 years we have witnessed the use of this trump card. Lim Guan Eng’s sedition trial in 1997 is a clear cut example of how legitimate criticism can be silenced.

As for the absence of a provision for proving the intention of the seditious materials uttered, I was taught in criminal law the importance of a coincidence of an actus reus and a mens rea in ensuring nobody is subject to imprisonment without a proper trial. Hence, a person should only be criminalized for a crime he intended. Now how important is this intention for the Sedition Act?

For example, if someone takes your cellphone and updates a Facebook status that insults the King, you could end up being in trouble for that insulting status. Why? Because all that is needed is the seditious material, and your intention is disregarded. So even though you did not intend such derogatory remarks, you could well end up being called up for an investigation.

It is surprising to know that this 1948 act came into life only after 1957, after Malaya got its independence. This paradox is truly perplexing. The British have left, communism ideologies no longer have a foothold, but this act remains in Malaysia and is being used by Malaysians against Malaysians.

A few months ago, our Prime Minister lamented the fact that human rights, of which freedom of expression is one, is a form of disguise for Western influence. Proponents of the Sedition Act have also voiced out the importance of curbing freedom of speech to maintain peace and public order. But is this the case?

I beg to differ. The Sedition Act is not needed because there are other existing laws under the Penal Code for such circumstances. Parliament could also table new bills to curb racially aggravated speeches or actions. An example is the harmony bill being drafted by the National Unity Consultative Council. So is peace and public order really the concern or just another argument without empirical evidence?

Perhaps freedom of expression is not something Malaysian authorities cherish. This is further evident by the government’s refusal to commit to the International Covenant on Civil and Political Rights 1966. Surprisingly, countries like Congo (in 1976), Egypt (in 1982) and Indonesia (in 2006) have signed and ratified the covenant into domestic laws. China has been a signatory to it since 2008 but has yet to ratify it. We call ourselves a moderate country, but is that the case?

Adrian Lim Chee En is scared of the Sedition Act.


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