Why the Sedition Act should be repealed?

Although the Act now allows a critique of implementation issues, the charges cut out all discussion. This consigns discussion of critical issues to secret dark cloistered corners. 

Gurdial Singh Nijar, Professor, Law Faculty, University of Malaya

It was in fact the PM’s proposal for the abolition of the Sedition Act  – repeated thrice – that triggered the intense debate that has followed since. The PM’s intent was reinforced by the setting up of a committee under the purview of his office to draft a replacement law.

Since then the PM’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 has asked the ‘abolitionists’ to provide a rationale for their position. The PM 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 1971 (which introduced amendments relating to the protection of bumiputera rights under article 153 of the Federal Constitution, the monarchy and the preeminent position 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. Gandhi was  imprisoned  in 1922 for 6 years for ‘disaffection’. Gandhi described this law as pernicious 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 law of Singapore, Malayan nationalists – such as Samad Ismail and Boestamam – were charged  for much the same reason; as were eight Singapore university students who criticized British and American imperialism in SEAsia in the 1950s.

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

Secondly, the provisions of the Act are vague and broad and allow persons to be charged on flimsy grounds. Our former AG says that the present spate of charges by the AG 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 excite ‘disaffection’ and ‘hostility’ and similar epithets among classes, races and such like.

The intention of an accused in making the statement or the 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 not intended to create any disorder or violence, and does not in fact lead to any such disorder, can be convicted. An academic has been charged and is in danger of being convicted for rendering what is in fact a legal viewpoint. Yet another constitutional expert has been hauled up for commenting on the Selangor MB constitutional crisis  Two young students have already been jailed 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 academic.

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

Thirdly, the charges against a wide cross section of the population for comments made on the country’s affairs, sends 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, enquiry 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 is a plethora of other penal laws that can be easily utilized 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 bumiputeras, the institution of the monarchy, and the primary role of the national language.

Although the Act now allows a critique of implementation issues, the charges cut 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 so fragile that it cannot vindicate democracy through healthy debate and discussion?

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