Two years ago, our beloved Prime Minister vowed that he will repeal the Sedition Act 1948 and replace it with a National Harmony Act. Fast forward two years and we’re still clinging on to a promise (or a re-promise if you will) although there have been positive signs that the National Harmony Bill is slowly but surely getting ready for tabling
However, it was reported yesterday that most UMNO grassroots leaders are for the Sedition Act. Datuk Seri Shahidan Kassim, a minister in the Prime Minister’s Department, claimed 161 out of a total 191 divisions nationwide had voiced a desire to keep the pre-independence law in a recent survey undertaken by central Umno.
The news is not at all surprising as in recent times, UMNO leaders haven’t been charged with sedition despite making arguably seditious statements. We have Tan Sri Muhyiddin Yassin’s statement about a repeat of the May 13 racial riots, as well as Datuk Seri Zahid Hamidi’s recent “non-malays are getting arrogant” rant
A joint statement made by a coalition of Malaysian NGOs in protest of the Sedition Act listed down those who have been charged under the draconian and archaic piece of legislation. They are:
1. David Orok – Member, Sabah Reform Party
2. Azmi Sharom – Law professor, University of Malaya
3. N. Surendran – Lawyer, Padang Serai MP
4. Khalid Samad – Shah Alam MP
5. R.S.N. Rayer – Lawyer, Seri Delima assemblyman
6. Abdullah Zaik Abdul Rahman – President, Ikatan Muslimin Malaysia
7. Teresa Kok – Seputeh MP
8. Chua Tian Chang – Batu MP
9. Hishamuddin Rais – Social activist
10. Adam Adli – Student activist
11. Safwan Anang – Student activist
12. Haris Ibrahim – Lawyer/ Social activist
13. Tamrin Tun Abdul Ghafar – Political activist
14. Md Shuhaimi Shafie – Sri Muda assemblyman
Numerous others are being investigated, including:
1. Viktor Wong – Activist, Parti Rakyat Malaysia
2. Susan Loone – Journalist, Malaysiakini
3. Hassan Karim – Lawyer/ PKR Johor vice chairman
4. Rafizi Ramli – Pandan MP
5. Ali bin Jalil – Member of public
6. 17-year-old schoolboy (unnamed)
7. Mohammad Nizar Jamaluddin – Changkat Jering assemblyman
It is undeniable that some of the aforementioned things said/done are controversial. But do we need the Sedition Act when we have the Penal Code (s.298, 298A, s.500) and the Defamation Act 1957 to deal with such sensitive matters?
To get a better view of whether to repeal/maintain the Sedition Act, it is necessary to do a nationwide referendum. A survey of the UMNO division heads nationwide would be insufficient to safely conclude that Malaysians want the Sedition Act to stay
A referendum is the most effective way to obtain public opinion as evidenced in Scotland, whereby on the 18th of September this year, Scottish citizens will be asked whether they want Scotland to go independent, thus leaving the United Kingdom. It is only logical that the rakyat are consulted about such a momentous thing
Similarly in our country, we should have a referendum about the future of the Sedition Act. The wishes of the majority should then be respected and acted upon. On my part, I am Joshua Wu Kai-Ming and I demand the abolition of the Sedition Act #MansuhAktaHasutan #AbolishSeditionAct
*This article also appeared at The Malaysian Insider, The Malay Mail Online, and Malaysiakini
(i) Prime Minister Datuk Seri Najib Tun Razak has made an about turn regarding his past pledges to abolish the Sedition Act 1948. Instead, he intends to strengthen it (27th November 2014)
SOSMA is the short form for the Security Offences (Special Measures) Act 2012. The act was enacted in 2012 as a replacement to the repealed Internal Security Act (ISA)
SOSMA covers ‘Criminal conspiracy’ (Chapter VA of the Penal Code) and ‘Offences against the State’ (Chapter VI of the Penal Code). Some of the interesting provisions of the Act worth taking note include:
A. Power of arrest and detention (s.4)
s.4(1) allows a police officer (henceforth PO) to arrest & detain without warrant, a person he believes is involved in security offences
s.4(2) states that the person arrested would be informed of the grounds of arrest by the PO making the arrest “as soon as may be”
s.4(3), no person can be arrested & detained under s.4 solely for his “political belief/political activity”
s.4(4) articulates that the arrested person can be detained for 24 hours
s. 4(5) allows the period of detention to be extended to 28 days (max.) by a PO ranked Superintendent or above
B. Notification of next-of-kin and consultation with legal practitioner (s.5)
s.5(1) states that when a person is arrested & detained under s.4, the PO conducting the investigation will
(a) immediately notify the next-of-kin about the arrest, and
(b) allow the detainee to consult a legal practitioner [subject to subsection(2)]
s.5(2), the delay of legal consultation for 48 hours (max.) may be authorised by a PO ranked Superintendent or above
Grounds for the delay of consultation under s.5(2)
(a) reasonable grounds to believe it may interfere with the evidence
(b) it will lead to harm to another
(c) it will lead to alerting another suspect not yet arrested, or
(d) it will hinder the recovery of property obtained as a result of the offence
C. Power to intercept communication (s.6)
D. Bail (s.13)
s.13(1), bail shall NOT be granted to a person charged with a security offence
s.13(2) states that a person below 18 years old, a woman, or a sick/infirm person not charged with an offence relating to terrorism may be released on bail depending on certain conditions
It is well known that freedom of speech is guaranteed under Article 10 of the Federal Constitution. However, what most Malaysians do not know is that their freedom of speech is limited. If certain quarters knew, they would not go around making seditious, provocative and/or defamatory statements as it is punishable by law.
Freedom of speech is not an absolute right as it is subject to certain limitations. Clause 2 and 4 of Article 10 of the Federal Constitution allows Parliament to make laws restricting the freedom of speech.
There’s a quote that says, “If you think twice before speaking once, you will speak twice the better for it.”
Below are provisions of the law of Malaysia limiting the freedom of speech. The only shame is that they are rarely used nowadays despite all the statements filled with hatred and bigotry.
Section 298 of the Penal Code makes “uttering any word or making any sound in the hearing, or making any gesture or placing any object in the sight of any person with intention to wound his religious feeling” a criminal offence. The maximum punishment would be imprisonment for one year, or fine, or both.
“Causing, etc., disharmony, disunity, or feelings of enmity, hatred or ill-will, or prejudicing, etc., the maintenance of harmony or unity, on grounds of religion” is also an offence as per Section 298A of the Penal Code. The punishment is imprisonment between 2 (min) to 5 years (max).
Section 500 of the Penal Code makes defamation a criminal offence which is punishable by imprisonment for two years (max), or fine, or both.
Malaysia also has the Defamation Act 1957 which makes defamation (both libel and slander) a civil offence. Some of the provisions include slander of women (s.4), slander affecting official, professional, or business reputation (s.5), and slander of title, etc (s.6)
Now to our infamous Sedition Act 1948. Section 3(1) defines a “seditious tendency.” It covers seditious statements made “against any Ruler or any Government” [s.3(1)(a)], “against the administration of justice” [s.3(1)(c)], and “to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia” [s.3(1)(e)]
One may wonder, “since we have so many statutes limiting the freedom of speech (albeit for our own good, unless misused), how come the extremists are still running around like headless chickens shouting at the top of their lungs as if their brains are located at their behinds?” To be honest, I do not have the answer. Our Attorney-General needs to step up his game or step down completely for incompetency
* The Malaysian Insider featured this article
This is an interesting question which forms the basis of the argument of those who oppose hudud. The Federal Constitution is the supreme law of the land of Malaysia. Any law which is in conflict with it is null and void
Article 8(1) of the Federal Constitution states that, “all persons are equal before the law and entitled to the equal protection of the law.” So in order to implement hudud, the Federal Constitution needs to be amended. Sounds easy enough?
There’s a catch though. There’s something called a basic structure doctrine. “The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic
features that cannot be altered or destroyed through amendments by the parliament . Key among these “basic features”, are the fundamental rights granted to individuals by the constitution” (as per www.wikipedia.org/Basic_structure_doctrine)
Now you may wonder, since the excerpt says that it’s an Indian judicial principle, does it bind Malaysia? The case of Loh Kooi Choon v. Government of Malaysia established that the basic structure doctrine is also applicable to Malaysia’s Constitution. The decision concerning the “basic structure” of the
Constitution in Loh was reaffirmed in the 1980 case of Phang Chin Hock v. Public Prosecutor (as per www.wikipedia.org/Loh_Kooi_Choon_v._Government_of_Malaysia)
In summary, the Parliament cannot make radical changes to the Constitution. Especially regarding fundamental rights which are granted to individuals under the Constitution. Yes, equality under the law is a fundamental right
So what now? In order to properly implement hudud by way of legislation, the Parliament needs to come up with a new Federal Constitution because by reason of technicality they cant just amend the current one to suit hudud law. Ergo, hudud is NOT feasible with our current Federal Constitution
* This article can also be found at The Malaysian Insider