Friday, April 17, 2015

Amendments to the Sedition Act 1948 are Draconian, Militate Against the Freedom of Speech and Expression, and Interfere with the Independence of the Judiciary

Joint Press Release 
Friday, 17 April 2015 03:09pm
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The Malaysian Bar, the Advocates’ Association of Sarawak and the Sabah Law Association are appalled by the amendments to the Sedition Act 1948 passed by the Dewan Rakyat in the early hours of 10 April 2015.  We are extremely disappointed that the Malaysian Government has not only reneged from the promise made in 2012 to repeal the Sedition Act 1948 and replace it with the National Harmony Act, but has substantially strengthened the former with drastic and oppressive provisions. 

The Sedition Act 1948 is an archaic, obsolete and regressive law that must be abolished.  It severely restricts, or even extinguishes, the freedom of speech and expression, and hence tramples on the constitutional rights of Malaysians.  It is the antithesis of democracy, justice and human rights.

The amendments to the Sedition Act 1948 have dealt a crippling blow to the rule of law in Malaysia, and lend weight to the widely held public perception that we are becoming an intolerant authoritarian state.  The democratic space for frank, meaningful and robust discourse has been palpably reduced.  The amendments reinforce the concern that the limits to freedom of speech and expression are to be determined by those in our society who are not open to adverse comments or contrary ideas, or who are easily offended or angered.  This nurtures an environment of intemperance and intolerance. 

The amendments passed by the Dewan Rakyat will result in a false sense of unity and harmony that is actually created by intimidation and a climate of fear.  This perpetuates insecurity and suspicion amongst our citizenry, and does not augur well for the growth and maturity of our nation.  

The amendments do not deal with one of the most offensive elements of the Sedition Act 1948, namely that the intention of a person accused of sedition, whether noble or mischievous, is irrelevant.  The offence of sedition therefore remains one of strict liability.  Strict liability for criminal offences is an extreme exception in criminal law, and certainly not one that should be used in respect of the constitutionally guaranteed freedom of speech and expression.  The amendments also criminalise truth, inasmuch as the truth of the words that are said to constitute “seditious tendency” is not a defence to a sedition charge.  This is another abhorrent aspect of the Sedition Act 1948.

The amendment to Section 3(1)(a) removes criticism “against any Government” as a ground for “seditious tendency”.  While this is a notable development, it should not be forgotten that adverse statements against the Government should never have been criminalised.  The Government cannot place itself beyond public scrutiny or comment, nor can it insulate itself from criticism.  As regards the deletion of Section 3(1)(c) concerning criticism on the administration of justice, it is a timely recognition that in a democracy no institution should be beyond the reach of constructive and honest comment.  However, we remain concerned that such speech could still be prosecuted under other legislation.  If the Government is to recognise the right of freedom of expression, it must do so consistently across all legislation.

The other amendments to Section 3(1) of the Sedition Act 1948 are very troubling.  The inclusion of the word “hatred” in Section 3(1)(e) in respect of the different races or classes in Malaysia, and the new provision relating to seditious tendency in Section 3(2)(c)(ii) of producing “feelings of ill will, hostility or hatred” “between different races or classes of the population of Malaysia”, or “between persons or groups of persons on the ground of religion”, are imprecise amendments.  Criminal offences must have the hallmark of clarity and certainty, and not be open to inconsistent or arbitrary interpretation.  It is unacceptable for criminal sanctions to be imposed based on unclear or ambiguous provisions of law.  The life and liberty of accused persons cannot turn on, or be subject to, vague laws.

The amendment to Section 4(1) is also worrying.  A person convicted of sedition is now liable to be imprisoned for a minimum term of three years and a maximum term of seven years.  The sanction of a fine in lieu of imprisonment has been removed.  The imposition of mandatory imprisonment for sedition is harsh and disproportionate to the purported offence.  In the case of a Member of Parliament, it will result in automatic disqualification.  Moreover, by prescribing a minimum term of imprisonment, the Government curtails the discretion of the Judiciary in sentencing matters.  

It must be borne in mind that judicial discretion in sentencing is a critical aspect of judicial power of the Judiciary under our constitutional scheme.  It allows Judges to decide on appropriate sentences on a case-by-case basis, depending on the facts and circumstances of each case.  This ensures justice is done in each case based on the particular facts of the case.  The deprivation of such judicial discretion may be construed to mean that the Government does not trust, or has lost faith in, the ability of the Judiciary to discharge its constitutional role and function, and would be seen as an interference with the independence of the Judiciary.

Next, the new Section 4(1A) is an obnoxious amendment.  It provides for what may be conveniently described as “aggravated sedition”.  Thus, a person who is accused of committing sedition that causes “bodily harm or damage to property” will be liable for a minimum term of imprisonment of three years and a maximum term of 20 years.  It is not apparent what is required in terms of a link or connection between the alleged sedition and the causing of bodily harm or damage to property.  It is clear that the new Section 4(1A) can be easily abused.  All that is needed is for an agent provocateur to provoke an unsuspecting person to utter or publish allegedly seditious words, and for another person to cause “bodily harm or damage to property” purportedly as a result of those words.  The former would be liable and would face imprisonment due to the purported conduct of the latter.  It is to be noted that here again judicial discretion is curtailed as the Judge is obliged, upon a finding of guilt, to impose the minimum term of imprisonment.  A further intrusion into judicial discretion is seen in the new Section 6A, which prohibits a Judge from discharging a person convicted of aggravated sedition either conditionally or unconditionally, or granting a binding over order or taking into account the fact that the person is a youthful offender or a first-time offender.  

The amendment in new Section 5A, to allow for restriction on travel, impinges on the constitutional rights of citizens.  By obliging the Judge to act on the application of the public prosecutor to restrict travel, the Judiciary has been relegated to being a rubber stamp of the public prosecutor.  This is an added assault on the independence of the Judiciary.

Another serious amendment is the deletion of Section 6 of the Sedition Act 1948, which protects any person from being convicted of sedition on the uncorroborated evidence of one witness.  In other words, where the alleged sedition is attributable to a spoken word or words, a person can now be convicted for sedition on the unconfirmed evidence of one witness.  This amendment removes a possible safeguard to a sedition charge, and exposes accused persons to conviction on the mere say-so of one witness.

The amendments also seek — in the new Section 10A — to impose severe restrictions on electronic publications, such as publications on social media.  Thus, where there is an allegedly seditious publication by electronic means, a prohibition order can be made to require the person making or circulating the publication to remove the said publication.  Further, the person making or circulating the allegedly seditious publication will be prohibited from accessing “any electronic device”.  While there is a case to be made for a more responsible and mature use of social media, the amendments goes well beyond that, and threaten the thriving exercise of freedom of speech and expression online.  

The Malaysian Bar, the Advocates’ Association of Sarawak and the Sabah Law Association call on the Malaysian Government to heed the salutary words of the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, who said, “Silencing dissent does not nurture social stability, but an open democratic space does”.1  It is also noteworthy that the “High Commissioner urged Malaysia, as chair of ASEAN, to ensure that its leadership role at the regional and international levels is backed up by a firm commitment to ensure the human rights of all in Malaysia”. 

The Sedition Act 1948 is inherently flawed, and the amendments serve to expose and exacerbate its weaknesses.  It is a law that undermines genuine unity and harmony, and is counterproductive to lasting peace, strong bonds of unity and real mutual respect in Malaysia.  The Sedition Act 1948 has no place in our nation, which aspires to be a modern, moderate and progressive democratic society.  

The Malaysian Bar, the Advocates’ Association of Sarawak and the Sabah Law Association urge the Government to desist from pursuing the amendments in the Dewan Negara, and to instead keep its promise to repeal the Sedition Act 1948. 


Steven Thiru
President
Malaysian Bar

Leonard Shim
President
Advocates’ Association of Sarawak

Datuk GBB Nandy @ Gaanesh
President
Sabah Law Association

17 April 2015

1 Press statement issued by the Office of the High Commissioner for Human Rights, “Malaysia: Draft anti-terror and sedition laws seriously undermine freedom of expression and opinion – Zeid”, 9 April 2015 (http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15810&LangID=E#sthash.1PMYL0en.dpuf, accessed on 17 April 2015).

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