The
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 too witness the Malaysian society
maturing politically and ideologically. As such, the need for such freedom is
all the more justified. The limbo however, lies between what is constructive criticism
and what is seditious.
As
articulated by most opponents of the Sedition Act, this Act has to go because
of three distinctive elements: Firstly,
the scope of what can be considered “seditious” is in fact a carte blanche for
those in power to silence dissidents or critics. Secondly, the blatant
disregard of whether this “seditious” words or material is in fact the truth,
goes against the very purpose of having laws enacted. Finally, the ignorance of
the accused’s motives will result in constructive argument being stemmed.
Section
3(1)(a) to Section 3(1)(f) explains what is considered seditious. But the
problem with these provisions is, 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 word against my word
up to the judge to decide.
If a citizen were to allege the
government of corruption and cause dissatisfaction 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 mistakes?
What then, is the opposition for?
On the other hand, certain
provisions under this Act might seem to justify the need of this Act. Section
3(1)(e) provides that promotion of ill will or hostility between race or class
is tantamount to sedition. Let us take a break and look at reality, the likes
of certain rights group leaders inciting Muslims to burn bibles containing the
word “Allah”, or even certain teachers or principles recommending students of
certain ethnicity to go back to their country of origin. Worse still, we
previously had certain 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)? Question is, were any of them
charged? If no, this might well be a case of selective prosecution.
Secondly, the blatant disregard of
the validity of “seditious” remarks suggests that the importance of silencing
critics outweigh the importance of seeking truth and justice. Going back to the
first 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.
Thirdly, the absence of 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 update a Facebook status that insults the Agong, 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 was in fact never used, or at most on rare circumstances used by the
British despite it being enacted for the purpose of stemming communist
insurgencies. It is even more surprising
to know that this 1948 Act came into live only after 1957, after Malaya got its
independence. What paradox, I am truly perplexed. The British have left,
communism ideologies no longer have a foothold, but this Act remains in
Malaysia 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 of
the many guarantees under it, is a form of disguise of Western influence.
Proponents of this Sedition Act has 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 circumstance. On another note, Parliament could also table new Bills to
curb racially aggravated speeches or actions. An example is the Harmony Bills
being spearheaded by the National Unity Consultative Council. So is peace and
public order really the concern, or just another argument without empirical
evidences?
Perhaps, freedom of expression is
not something Malaysian authorities cherish. This is further evident through
the refusal to commit to the International Covenant on Civil & Political
Rights 1966. Surprisingly, countries
like Congo (in 1976), Egypt (in 1982) and Indonesia (in 2006) has signed and
ratified the ICCPR into domestic laws. China has been a signatory to it since
2008 but have yet to ratify it. We call ourselves a moderate country, but is
that the case?
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