Malaysians may never be able to enjoy a decent degree of free speech.
How does a government stay in power? By fighting any opposition it confronts. How then does a government fight opposition? In Malaysia, it is by victimising any voice that critically questions the ruling elite and its methods of government. A mere comment on a political crisis that may mature into a constitutional issue could warrant such extreme persecution. Such is the case of academician Azmi Sharom, one of the many who have been charged under the Sedition act 1948.
Introduced by the British in 1948 to curb civil disobedience against the colonial rule, the Sedition Act is still in existence six decades later, except that now Barisan Nasional has stepped onto the platform to exercising this tool of oppression.
The act arbitrarily limits freedom of speech, hinders political growth and, most notably, is a violation of a fundamental human right. To quote Christopher Leong, President of the Malaysian Bar Council, “The Sedition act is repugnant because it seeks to compress and restrict democratic space. It punishes speech. It punishes expression of thought by thinking Malaysians.”
Section 2 of the act defines as sedition anything that has a “seditious tendency”. The act then goes on to define “seditious tendency” under Section 3 (1) as any tendency to “bring into hatred or contempt or to excite disaffection against” the government or to instigate “feelings of ill will and hostility between different races”. It also prohibits the questioning of the statuses of Articles 152, 153 and 181 of the Federal Constitution on the National Language, the special position of the Bumiputeras and the sovereignty of the Malay Rulers.
In PP v Mark Koding (1983), however, the court decided that before a statement is said to have seditious tendencies, the statement must be viewed in the context it was made.
Nevertheless, concern lies in the method in which the act is used and the purpose for which it is used. As retired Court of Appeal Judge K C Vohrah has said, there are two inherent processes when dealing with this act.
The first is the court process, where the intention is irrelevant and a person would be convicted if seditious words were uttered. Thus, the act imposes strict liability on the offender, allowing no room for the defence of truth, presence of an innocent or honourable intention, absence of consequent harm, or a lack of possibility or potential for consequent harm. This is oppression at its best.
Alarming obscurity
The second process entails the Attorney-General’s decision as to whether or not a person is to be charged under the act. The alarmingly obscure definition of sedition has assisted the prosecution in opening the floodgates to the criminalising of a variety of offences. In fact, considering Malaysia’s poor state of separation of powers between the ruling government and the Attorney-General’s office, it is near impossible to deny that the sedition charges recently brought by the AG were for the political convenience of the government. This is evident through the sedition charges slapped on more than half a dozen opposition members of Parliament. In view of this, Human Rights Watch urged that the “Malaysian government should cease using the country’s sedition law to arbitrarily arrest opposition lawmakers, activists and critical academics.”
More disturbingly, the existence of the 1948 act contradicts Article 10 of the Federal Constitution, which guarantees every citizen the right to freedom of speech, assembly and association. Nonetheless, Article 10 (2), (3) and (4), expressly permits Parliament to impose restrictions on this freedom in the interest of the security of the federation, friendly relations with other countries, public order, morality and other grounds. It appears that the Sedition Act falls under these restrictions. To quote Justice Raja Azlan Shah (later the Yang di-Pertuan Agong), “The right to free speech ceases at the point where it comes within the mischief of the Sedition Act.”
Subsections 2, 3 and 4 of Article 10 of the Constitution have been the targets of copious criticisms by human rights activists. In the 2003 Memorandum on the Malaysian Sedition Act, Article 19 of the Global Campaign for Free Expression said that the subsistence of the Sedition Act had gone beyond that of necessity as a result of Parliament’s low standard of what it deems to amount to necessary restrictions.
Slippery slope
The injudicious enforcement of the act inevitably puts Malaysia on a slippery slope to authoritarian rule, according to Human Rights Watch’s Phil Robertson. This is by virtue of the government’s use of the act to “assert power over the people and to create a climate of fear”.
“And it’s working,” said Ambiga Sreenevasan, a former president of the Malaysian Bar.
Incontestably, such a curtailment of the fundamental right to free speech is detrimental to a country’s political and social growth. According to Amartya Sen, a Nobel Prize-winning economist, “The success of a society is to be evaluated primarily by the freedoms that members of the society enjoy.”
Sen advocates that development is the process of expanding human freedom whereby the promotion of the freedoms of press, speech and assembly cultivates clean, honest and accountable governance. In his book Development as Freedom, he listed “political freedoms”, which include a functioning democracy, freedom to scrutinize and criticize the actions of authorities, freedom of expression and speech, and the presence of a free press as being among the freedoms that “tend to contribute to the general capability of a person to live more freely”.
The preamble to the Universal Declaration of Human Rights says, “The advent of the world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.”
Unfortunately, as long as the Sedition Act continues to be in existence and continues to have unlimited arbitrary power vested in it, Malaysians can never truly realize their aspiration for a decent degree of freedom of speech. Used by the ruling elite to subdue any form of political resistance against its six-decade reign, the Sedition Act will never cease to oppress Malaysians.
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