A Third Position on the Sedition Act

If discontent with the administration of justice cannot be articulated or organized, dissent loses its legitimacy and the polity ceases to be a democracy.  

Dr. Chandra Muzaffar

The two adversarial positions that have emerged in the controversy over the Sedition Act are a sad reflection of the state of ethnic relations in the country today.

Many of those who are determined to preserve, perpetuate and strengthen the Sedition Act see it as a bastion of Malay political power while a lot of those who want it abolished hope that its elimination will lead to the demise of Malay political power.

These superficial communal sentiments on both sides of the divide have been largely responsible for the marginalization of a third more rational, balanced position on the Act which transcends the politics of ethnicity and serves the larger interests of the nation.

What is this third position? It is in fact the position articulated by the Prime Minister himself when he announced that the Sedition Act of 1948 would be repealed and replaced by a National Harmony Act at a dinner hosted by the Attorney-General’s Chambers at the Kuala Lumpur Convention Centre (KLCC) on the 11th of July 2012.

In his well thought-out speech he had stated that the primary purpose of the new law would be to maintain an equilibrium between freedom of expression and public order while taking into account new realities linked to the easy availability of information through the alternative media, improved levels of education, changing socio-economic conditions and rising public expectations.

The proposed Harmony Act, he emphasized, will not curb criticisms of the government or suppress dissent. At the same time, it would ensure that the freedom of expression is not abused to create hatred among the communities or to foster chauvinism and extremism.

Dato Sri Mohd Najib envisaged the Harmony law operating within the framework of the Malaysian Constitution with its entrenched clauses pertaining to the status of Malay as the national and official language and the use and study of other languages; the Special Position of the Malays and the natives of Sabah and Sarawak and the legitimate interests of the other communities; citizenship; and the position of the Malay Rulers as constitutional monarchs.

I welcomed the Prime Minister’s announcement in a media article entitled “The National Harmony Act: Rights and Restraints” on 23 July 2012 in which I tried to show that while demanding the abrogation of certain rights enshrined in the Constitution is bound to lead to tension and conflict, exposing their abuses and misuses would be justified. I argued that every community has to be aware of the restraints it must observe in the pursuit of its rights. Equally important, in the implementation of the proposed law there should be no bias, no double standards.

When the discussion on the Sedition Act and the proposed Harmony Act turned vile and vicious especially in the alternative media in 2014, I wrote another article “To Fight Sedition or to Promote Harmony?” on 7 September 2014 where I reiterated the need for a new law which would incorporate all the entrenched clauses in the Constitution.

In addition, it would include provisions on the position of Islam as the religion of the nation and the freedom to practise one’s religion, and on the territorial integrity of the Federation aimed at prohibiting any advocacy of secession.

I saw both the articles as inputs to the Attorney-General’s Chambers which had been given the task of garnering views from the Malaysian public in the preparation of the National Harmony Act by the Prime Minister in his July 2012 speech.

Unfortunately, the Attorney-General’s Chambers failed to establish a mechanism for the people to make their submissions. There was no direction from the Chambers on the various stages that would accompany the formulation of the Act.

What happened instead was the emergence of a working group of the National Unity Consultative Council which undertook to draft three Bills to replace the Sedition Act. Because it went public with those Bills which showed very little empathy for the sort of concerns that gave birth to the entrenched clauses in the Constitution, a number of Malay groups bandied together in defence of the Sedition Act. They perceived the Working Group’s Bills as a direct assault on those fundamental Malay-Muslim dimensions of the Constitution that underscore the nation’s identity.

Their mass mobilization on behalf of the Sedition Act has given rise to a situation where there is hardly any scrutiny of those phrases and clauses in the Act that are clearly inimical to a functioning democracy. For instance, exciting “disaffection” and raising “discontent” against the Government are regarded as seditious when everyone knows that politics in a democracy revolves around the mobilization of public sentiments against or for the government of the day. If discontent with the administration of justice cannot be articulated or organized, dissent loses its legitimacy and the polity ceases to be a democracy.

One hopes that the Attorney-General’s Chambers is as concerned today as it was in 2012 with the deep flaws in the Sedition Act. In spite of all that has happened in recent months, it should try to formulate a law which reflects the spirit of the third position as presented by the Prime Minister two years ago.  A law that promotes harmony with a realistic understanding of the lay of the land.

Dr. Chandra Muzaffar is Chairman of the Board of Trustees of Yayasan 1Malaysia.