COMMENT It was in fact Prime Minister Najib Abdul Razak’s proposal that the Sedition Act be abolished - a proposal repeated thrice - that triggered the intense debate that has followed since.

 

The prime minister’s intent was reinforced by the setting up of a committee under the purview of his office to draft a replacement law.

 

Since then, Najib’s intent has been ebbing and flowing in tandem with political noises made by various members of his coalition party and other groups.

 

A senior member of this coalition party, the BN, has asked the ‘abolitionists’ to provide a rationale for their position. Najib, as the original proposer of this position, has yet to respond -  although this could just as easily be dealt with under his party's internal debate process.

 

Nonetheless let me, offer the following reasons why this law should be abolished.

 

This is a 1948 Act first imposed by the British; its provisions are much the same except for an amendment in 1970 (which introduced amendments relating to the protection of bumiputera rights under Article 153 of the Federal Constitution, the monarchy and the pre-eminent position of the national language).

 

First, the Act was enacted by the British primarily to subjugate any challenge to its rule. Freedom fighters and nationalists in all its colonies were charged by the colonial authorities under identical sedition laws.

 

Mahatma Gandhi was imprisoned in 1922 for six years for ‘disaffection’. Gandhi described this law as pernicious and meant to subdue nationalist leaders; and asked that he be convicted as he would rather go to prison than be forced to submit to a cruel colonial authority.

 

Nearer home, under the 1936 Sedition Act of Singapore, Malayan nationalists - such as Samad Ismail and Ahmad Boestamam - were charged for much the same reason; as were eight Singapore university students who criticised British and American imperialism in Southeast Asia in the 1950s.

 

Why would we want to continue with this act of bondage of our population?

 

Vague and arbitrary

Secondly, the provisions of the Sedition Act are vague and broad and allow persons to be charged on flimsy grounds.

 

A former attorney-general says that the present spate of charges by the current attorney-general (AG) Abdul Gani Patail ( right ) under the Act smacks of persecution.

 

This is made possible because of the vast discretion given to the AG to determine what constitutes "seditious tendency" under the vague, subjective and broad provisions of the Act. Seven decades ago a legal commentator, Edward Jenks, described it as “most arbitrary in criminal law”.

 

The Act makes it an offence to cause ‘disaffection’ and ‘hostility’ among classes, races and such like. These provisions were described by a legal commentator more than seven decades ago as “the vaguest and arbitrary in criminal law”.

 

The intention of an accused in making a statement or carrying out an act is not relevant under the law. This undermines the fundamental basis of criminal liability.

 

Nor does the prosecution need to show that the statement could lead to some disorder or violence. In other words, a person who makes a mere critical statement that is not intended to create any disorder or violence, and does not in fact lead to any such disorder, can be convicted.

 

An academician has been charged and is in danger of being convicted for making just such a comment. Two young students have already been sentenced to jail under this law.

 

Gandhi at his trial said that ‘affection’ cannot be bought but must be earned. Even a cabinet member has broken ranks to condemn the use of the Act against an academician.

 

A law that attracts such widespread condemnation and is based on vacuous provisions lacks validity in the public eye. It brings the law and those who use it into disrepute.

 

Such a law should not be part of the legal architecture of a country based on the rule of law in a functioning democracy. 

 

Servile and subjugated society

 

Thirdly, the charges against a wide cross section of the population for comments made on the country's affairs, send a chilling effect and subverts the democratic process and the freedom of speech guaranteed by the Federal Constitution.

 

It undermines academic and other legitimate freedoms; it thus hinders independent thought, inquiry and expression. This will create a servile and subjugated society ill-equipped to meet the country's future challenges in a globalised world. 

Fourthly, there are a plethora of other penal laws that can be easily utilised or adapted against persons who seek to create disorder or violence in society by their comments and acts.

 

And this includes matters addressed by the amendments to the Act - Article 153 on rights of the bumiputera, the institution of the monarchy and the primary role of the national language.

 

Although the Sedition Act now allows a critique of implementation issues, practically the charges show that it cuts out all discussion. This consigns discussion of critical issues to secret, dark cloistered corners.

 

Surely this endangers values we hold dear in a democratic society. Or do the powers-that-be view our society as so fragile that it cannot vindicate democracy through healthy debate and discussion?

 

Is the only way of protecting our democracy - the criminalisation of our citizenry who express views on current concerns? Or are we like the proverbial ostrich that buries its head, oblivious that the rest of its body is exposed and vulnerable?

 

 

GURDIAL SINGH NIJAR is a professor with the Law Faculty, Universiti Malaya.