The fact that [individuals involved in] only 19 of the 960 cases investigated under the Sedition Act 1948 between 2010 and September 2023 were charged in court, as disclosed by the Deputy Home Minister Shamsul Anuar Nasarah on 14 November, does in no way justify the continued existence of this draconian law.
This law criminalises “seditious tendencies” that, among others, creates disaffection with the government of the day or excite disaffection against the administration of justice.
It is an act that is totally unacceptable in any democracy. Are people meant to simply praise the government or be silent and not be able to say otherwise or anything which may result in a loss of support for Prime Minister Anwar Ibrahim’s Pakatan Harapan-led coalition government?
Then, [the nation] would be no longer a true democracy but an authoritarian state that wants people to not participate in building a better and more just Malaysia.
What was your intention when you said or did [something] that caused a “seditious tendency” is irrelevant for offences under the Sedition Act.
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Section 3(3) says:
(3) For the purpose of proving the commission of any offence against this Act the intention of the person charged… shall be deemed to be irrelevant if in fact the act had, or would, if done, have had, or the words, publication or thing had a seditious tendency.
Truth or reasonable suspicion is generally not a defence.
For any crime, there must be certainty of what exactly constitutes the elements of the crime, and what was the intention of the criminal when he did what he did that constituted the crime.
A crime should never be vague – and neither should it criminalise differences in opinions, ‘reasonable suspicions’, or the highlighting of wrongs in government or even in the administration of justice.
Now, anyone who expressed unhappiness with the public prosecutor’s decision to suddenly stop the criminal trial of Zahid Hamidi may also be at risk of being investigated or charged under the Sedition Act.
This is yet another reason why this British colonial government-created law in 1948, before independence, must be repealed.
Possibility of abuse
The deputy minister talks about “960 cases”, which means maybe the number of persons investigated may be much higher. How many of these were arrested and detained during the investigations? How many were tortured or threatened? How many people’s income-generation ability was affected? Even the calling in to be investigated under the Sedition Act is a mental torture.
In 2016, for the tabling of a Bar resolution, which was adopted by an overwhelming majority, entitled “Resolution on the attorney general, public prosecutor and improvement of public perspective of administration of justice in Malaysia’, the three lawyers who moved the resolution – Charles Hector, Francis Pereira and Shanmugam Ramasamy and the then Bar secretary Karen Cheah (now Bar president) – were called in for investigation under the Sedition Act.
The resolution, among others, raised issues concerning the attorney general or public prosecutor actions in the 1MDB/SRC case, demanding an independent public prosecutor and needed reforms.
The lawyers investigated remained strong and came out after investigation and were reported as saying, “We are still committed in upholding the cause of justice… We have the right to seek change so that our country can become better… This is not just the obligations of lawyers, but the duty of each and every one in Malaysia.”
Sword of Damocles
Remember, that at any time, the government has the power to charge anyone from those 960 cases investigated for crimes against Sedition Act, and as such for those still not charged, it is akin to having a sword of Damocles hanging over them, for they can still be charged anytime in the future.
There is no limitation for crime, and so anytime, one can be charged. No one tells us that the investigation revealed we were innocent or we will never be charged in the future – unlike an acquittal by the court, which means that thereafter one shall “not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge…” (Section 3012(1) of the Criminal Procedure Code).
As such, the use of the draconian Sedition Act, even for the purpose of an investigation, may be an abuse of powers of the state to maybe keep silent critics and those with a different view from the government of the day.
To remedy this defect in a democratic society, the Sedition Act must be repealed and, pending, repeal should be not be used anymore.
Is PH-led government different?
Prime Minister Anwar Ibrahim and this Pakatan Harapan-led coalition government, which had earlier promised reforms and even the abolition of the Sedition Act if they came into power, should no longer delay but immediately repeal the Sedition Act. It should also impose a moratorium on the use of this draconian act pending abolition.
After the 2018 general election, the Pakatan Harapan’s ‘excuse’ was before they could repeal bad laws as promised, they were ousted early from government because of the ‘Sheraton move’. What then is the excuse of PH now that they have a second chance to govern?
Malaysians Against Death Penalty and Torture (Madpet) urges Prime Minister Anwar Ibrahim and the Malaysian government to immediately ‘walk the talk’ about reforms, as the people expected, and immediately repeal the Sedition Act.
Madpet also reiterates its call for the repeal of draconian Section 233 of the Communications and Multimedia Act 1998 and all other draconian legislation. Like the Sedition Act, Section 233 is vague and easily abused, and in Malaysia, it has been seen to be used together with the Sedition Act on internet users, maybe to prevent alternative views, freedom of expression and even the sharing of information or views of another with friends over the internet.
Hopefully, the desire to remain in power does not lead to actions or omissions designed to suppress the democratic rights of the people of Malaysia.
Bad unjust laws must be repealed and not simply maintained, since now one is power, so that they could be, if needed, used or abused against political opponents and ordinary people who do not agree with or who do not support government actions or views.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)