As our beloved nation celebrates the 67th anniversary of its independence, I reflect on one of the more draconian pieces of legislation that appears to have survived the test of time.

The Sedition Act 1948 predates Merdeka by nine years and was originally enacted by our colonists to contain the communist movement which threatened the security of Malaya at the time.

It criminalises free speech by making comments uttered with a “seditious tendency” an offence, especially if they “excite disaffection” against the government or engender “feelings of ill-will and hostility” among the rakyat.

Having its origins in English law, it is interesting that even the UK abolished its sedition laws in 2009. That was on account of it being incompatible with free speech, a fundamental liberty expressly conferred by our own Federal Constitution.

Indeed, it is remarkable that the law prohibiting seditious speech in Malaysia has outlived its parent law in the UK.

During his long period of service in the opposition, Prime Minister Anwar Ibrahim had always advocated for free speech and a repeal of the Sedition Act.

These days, however, he appears content to insist that his unity government does not use sedition laws as a political weapon.

All investigations into potential offences, he says, are carried out by the police based on reports lodged by aggrieved parties, and all charges are brought by the attorney-general (AG) with no interference from the executive.

But with three prominent opposition politicians, including a former prime minister, facing ongoing court cases, is that position good enough?

In its manifesto for the 15th general election in 2022, Pakatan Harapan expressly committed to repealing the Sedition Act.

Granted, the manifestos of Barisan Nasional, Gabungan Parti Sarawak and Gabungan Rakyat Sarawak, PH’s partners in the unity government, did not make a similar commitment. Nonetheless, it is inconceivable that they would oppose a move towards free speech.

At the very least, even if there is no political motivation to repeal the law altogether, the government must walk the talk of PH, the leading coalition, to limit its ambit.

It should also decline to investigate and prosecute, except in clear and compelling cases where the speech is entirely out of line and threatens the core stability of the country.

It also falls on the government to take cognisance that the Federal Court has, beginning with the landmark Indira Gandhi case (2018), adopted the constitutional supremacy doctrine, effectively debunking the prevailing thinking since independence that Parliament was supreme.

In effect, the current doctrine relegates oppressive laws such as the Sedition Act to ordinary laws capable of being repealed if they are in conflict with the aspirations of the rakyat as reflected in the constitution.

In Malaysia, the constitution is supreme. Every pillar of government – the executive, the legislature, the judiciary and the rulers – exists by reason of various articles contained in the constitution and derive their respective powers and limits from them.

As regards the rulers, broadly it can be said that they have –

•  constitutional administrative power, such as in making appointments under Article 153;
• constitutional discretionary power, such as in the appointment of the prime minister under Article 40; and
• constitutional absolute power, such as the right to pardon under Article 42.

Surely, it cannot be said that there is no right to question fairly and justly the exercise of such powers within the constitutional framework.

In fact, according to a recent report, the Federal Court by a majority decision appears to have made small inroads even in the exercise of the grant of pardon. I do not wish to comment on the propriety of that decision here. Suffice it to say the outcome shows once again the supremacy of the constitution.

Merdeka also means there is no place for oppressive laws like the Sedition Act in a country like ours. It should be repealed.

If the government is not inclined to seek its repeal, then civil society, perhaps even the Malaysian Bar, should push for it so as to uphold social justice.

Meanwhile, so long as it remains on the statute books, the Sedition Act should be consigned to legal history and not be the subject of enforcement.

Although constitutionally empowered to bring charges for sedition, the AG should exercise restraint. The police should also be instructed not to expend their resources into investigating such cases.

As regards ongoing sedition cases, I would suggest that it is open for the government and civil society to make representations to the AG for such charges to be dropped.

Although in normal circumstances such representations are made by the accused, there is nothing in law to prohibit external parties from making representations on behalf of the accused.

In fact, that would be the magnanimous thing to do, and show the true spirit of Merdeka.

Selamat Merdeka. Selamatkan Merdeka.

The views expressed are those of the writer and do not necessarily reflect those of FMT.