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If your FB’s hacked, it may be sedition charges for you

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 allegedly 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.

Clear-cut example

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 criminalised for a crime he intended. Now how important is this intention for the Sedition Act?

For example, if someone takes your cellphone and updates 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 to life only after 1957, after Malaya got its independence.

What a 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 have 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 and Political Rights 1966 (ICCPR). Surprisingly, countries like Congo (in 1976), Egypt (in 1982) and Indonesia (in 2006) have signed and ratified the ICCPR into domestic laws. China has been a signatory to it since 2008 but has yet to ratify it. We call ourselves a moderate country, but is that the case?


ADRIAN LIM CHEE EN is barely a lawyer and is scared of the Sedition Act.

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