In conjunction with Deepavali 2021, a heavily bearded young Bangladeshi man posted a video clip of himself with a message belittling Hindus and the festival of lights.
Johor Police, under the able leadership of Ayob Khan Mydin Pitchay, acted swiftly and arrested the man. He is being investigated under Section 505 of the Penal Code and under the Multimedia and Communications Act.
While I congratulate the Johor Police on their swift action, I want to ask why the suspect is being investigated under Section 505 of the Penal Code and not under Section 298A of the Penal Code.
Which is the appropriate section of the Penal Code to apply, as the suspect had touched on racial and religious matters? For the benefit of the public, I reproduce below both sections so they can judge for themselves if the police are right in using Section 505 instead of Section 298A.
Section 505: Whoever makes, publishes or circulates any statement, rumour or report—
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(a) with intent to cause, or which is likely to cause, any officer, soldier, sailor or airman in the Malaysian Armed Forces or any person to whom section 140B refers, to mutiny or otherwise disregard or fail in his duty as such;
(b) with intent to cause, or which his likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity; or
(c) with intent to incite or which is likely to incite any class or community of persons to commit any offence against any other class or community of persons,
shall be punished with imprisonment which may extend to two years or with fine or with both.
Exception—It does not amount to an offence within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it without any such intent as aforesaid.
Section 298A: (1) Whoever by words, either spoken or written, or by signs, or by visible representations, or by any act, activity or conduct, or by organizing, promoting or arranging, or assisting in organizing, promoting or arranging, any activity, or otherwise in any other manner—
(a) causes, or attempts to cause, or is likely to cause disharmony, disunity, or feelings of enmity, hatred or ill will; or
(b) prejudices, or attempts to prejudice, or is likely to prejudice, the maintenance of harmony or unity,
on grounds of religion, between persons or groups of persons professing the same or different religions, shall be punished with imprisonment for a term of not less than two years and not more than five years.
(7) It shall not be a defence to any charge under this section to assert that what the offender is charged with doing was done in any honest belief in, or in any honest interpretation of, any precept, tenet or teaching of any religion.
Under Section 505, the person is not guilty if he claims he had “reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it without any such intent as aforesaid”.
On the other hand, under Subsection (7) of Section 298A, the defence of “honest belief” is not available.
Further, the penalty under Section 505 is “imprisonment which may extend to two years or with fine or with both”.
The person can get off with a very mild slap on the wrist. So, this section is not a deterrent but emboldens bigots and racists to make disparaging statements against others and, if charged, get off scot free by spending a day in court (it qualifies as one day’s imprisonment) and maybe a few ringgit in fine.
The penalty under Section 298A is a mandatory jail term of not less than two years and not more than five years. This is a meaningful deterrent.
Is applying Section 505 relevant, as it refers to “inducing” or “inciting” people to do something? This suspect did not do that but made statements to cause disharmony on grounds of religion, which is very clearly and specifically spelt out in Section 298A.
So it behoves the police to explain why he is being charged under the red herring Section 505 and not Section 298A, which deals specifically with offences against religion.
Sad to say, I am disappointed with the police and hope the Johor Police chief, who stands above his colleagues in the other states in dealing with criminal issues, will explain the kid gloves treatment of this suspect.