[GHAH] Memorandum: FULFILL THE PROMISE MADE IN 2012: REPEAL THE SEDITION ACT 1948

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Since the launch of Gerakan Hapus Akta Hasutan (GHAH) on the eve of Malaysian Day, 15 September 2014, we have been firm on our three demands – to repeal the Sedition Act, to drop all sedition charges and to have no replacement Act with similar draconian provisions – to the Malaysian government. The Sedition Act is repressive, unjust and it has been used to oppress the rakyat of Malaysia.Almost a year since the launch of the movement, not only has the government remained unresponsive and failed to uphold the people’s rights to freedom of expression under Article 10 of the Federal Constitution, the Sedition Act was used discriminately more and more frequently to stifle legitimate voices.
The amendment to the Sedition Act, which the Prime Minister Datuk Seri Najib Razak pledged to abolish in 2012, was bulldozed by the BN-majority Parliament on 10 April 2015. The amendment effectively imposes a greater threat to the people’s right to freedom of expression which was already at a deplorable stage before the amendment. The wide-ranging provisions, which make the definition of “seditious tendency” indeterminate, would render constructive, legitimate and logic-based views a criminal offence.

The draconian Sedition Act was enacted by the British before the independence of Tanah Melayu. It is a residue law by British colonialism used at a time when they needed to counter communist propaganda. It is ironic that the government of the day is still using the same draconian law against the rakyat of Malaysia.
Prime Minister of Malaysia, Dato’ Seri Najib Tun Razak pledged to repeal this draconian act on 11th July 2012, on the grounds for seeking the best mechanism to achieve a balance between the need to guarantee freedom of expression, and the need to respect the diversity that exists in this country since its inception. On 5th September 2012, Dato’ Seri Najib Tun Razak once again promised to abolish the Sedition Act 1948, but until today, it still applied deliberately. In the statement made by Dato’ Seri Najib Tun Razak on 11th July 2012, at the “Majlis Makan Malam Jabatan Peguam Negara Bersama YAB Perdana Menteri”, as quoted in “Open Memorandum by the Bar Council to the Prime Minister “, he clearly states:
“Kerajaan telah membuat keputusan agar Akta Hasutan 1948 dimansuhkan dan digantikan dengan suatu rang undang undang yang dikenali sebagai Akta Keharmonian Nasional. Keputusan menggantikan Akta Hasutan dibuat kerana kita mahu mencari mekanisme yang dapat menentukan keseimbangan terbaik diantara keperluan menjamin kebebasan bersuara setiap warganegara sesuai dan selaras dengan peruntukan dan jaminan yang terkandung di dalam Perlembangan Pesekutuan dan keperluan untuk menangani kompleksiti kemajmukan yang wujud dinegara ini. With this new Act we would be better equipped to manage our national fault lines. It would also help to strengthen national cohesion by protecting national unity and nurturing religious harmony….”
The Sedition Act 1948 has no place in our democratic country and it must be repealed:
1. Sedition Act 1948 is a draconian colonial relic, which is used for the purpose of suppressing the people. It is a regressive act, violates the rule of law, contrary to the fundamental principle of democracy, restricts freedom of speech and violates human rights.

2. This draconian act, has become a tool to silence criticism against the government. It has been used to detain opposition politicians, activists, lawyers, academician, journalists, including the ordinary people that are not in line with the government. The government seems to be trying to inject a “culture of fear’ among the rakyat.

3. The amendments made on this draconian act were made without discussion before it was tabled and passed in the Parliament. The amendments do not deal with the unreasonable elements in the Sedition Act 1948, namely the intention of the individual who is being accused of sedition, is irrelevant. This is one of the elements in the Sedition Act 1948 that cannot be accepted and is one of the reasons why this draconian act should be abolished immediately. Although the amendment to Section 3(1)(a) eliminates provisions of criticism towards “government”, and the amendment to Section 3(1)(c) eliminates the provisions of criticism towards “judiciary” seemed good and praiseworthy, with the excuse the amendments are being made to guarantee peace and harmony among Malaysians, when reviewed and reassessed, proved more oppressive and give greater powers to the government. For example:

i. The amendment to Section 3(1) of the Sedition Act 1948, namely the addition of the word “hatred” in Section 3(1)(e) with respect to different classes or races in Malaysia, and the new provisions relating to seditious tendency in Section 3(2)(c)(ii) , of producing “feelings of ill will, hostility or hatred” “between different races or classes of the population of Malaysia”, or “between persons or groups of persons on the ground of religion”, are imprecise amendments. The criminal offences cannot be charge under an Act that the interpretation is too broad and inconsistent. It is unacceptable for criminal sanctions to be imposed based on unclear or ambiguous provisions of law. The life and liberty of accused persons cannot turn on, or be subject to, vague laws.

ii. The amendment to Section 4(1) is also worrying. A person convicted of sedition is now liable to be imprisoned for a minimum term of three years and a maximum term of seven years. The sanction of a fine in lieu of imprisonment has been removed. The imposition of mandatory imprisonment for sedition is harsh and disproportionate to the purported offence. In the case of a Member of Parliament, it will result in automatic disqualification. Moreover, by prescribing a minimum term of imprisonment, the Government curtails the discretion of the Judiciary in sentencing matters.

iii. It is clear that the new Section 4(1A) can be easily abused. All that is needed is for an agent provocateur to provoke an unsuspecting person to utter or publish allegedly seditious words, and for another person to cause “bodily harm or damage to property” purportedly as a result of those words. The former would be liable and would face imprisonment due to the purported conduct of the latter. It is to be noted that here again judicial discretion is curtailed as the Judge is obliged, upon a finding of guilt, to impose the minimum term of imprisonment. A further intrusion into judicial discretion is seen in the new Section 6A, which prohibits a Judge from discharging a person convicted of aggravated sedition either conditionally or unconditionally, or granting a binding over order or taking into account the fact that the person is a youthful offender or a first-time offender.

iv. The amendment in new Section 5A, to allow for restriction on travel, impinges on the constitutional rights of citizens. By obliging the Judge to act on the application of the public prosecutor to restrict travel, the Judiciary has been relegated to being a rubber stamp of the public prosecutor. This is an added assault on the independence of the Judiciary.

v. Another serious amendment is the deletion of Section 6 of the Sedition Act 1948, which protects any person from being convicted of sedition on the uncorroborated evidence of one witness. In other words, where the alleged sedition is attributable to a spoken word or words, a person can now be convicted for sedition on the unconfirmed evidence of one witness. This amendment removes a possible safeguard to a sedition charge, and exposes accused persons to conviction on the mere say-so of one witness.

vi. The amendments also seek — in the new Section 10A — to impose severe restrictions on electronic publications, such as publications on social media. Thus, where there is an allegedly seditious publication by electronic means, a prohibition order can be made to require the person making or circulating the publication to remove the said publication. Further, the person making or circulating the allegedly seditious publication will be prohibited from accessing “any electronic device”. While there is a case to be made for a more responsible and mature use of social media, the amendments goes well beyond that, and threaten the thriving exercise of freedom of speech and expression online.

(source: The Malaysian Bar Open Memorandum to PM Najib)

4. The Sedition Act 1948 will not guarantee peace and harmony, killing freedom of speech and expression, and will only create a “culture of fear” among Malaysians. The called for moderation that is often propagated by Dato’ Seri Najib Tun Razak, will only be a laughing stock to the rest of the world.

Harmony and unity cannot be achieved by coercion; especially through legal compulsion. Lasting harmony and unity requires time, hard work, good education, as well as the cooperation of all parties. Using the draconian act in the name of peace, unity and harmony is greatly unacceptable and clearly violates the right to freedom of speech and expression guaranteed by the Constitution.
After 58 years of independence, the people of Malaysia should have gone through a process of maturity in thinking, working, interaction, communication and behaviour in a civilized society. The government should focus on education that can educate the rakyat, not punishment by using an act that is obsolete, unjust and oppressive.
GHAH is hereby, calling upon the government to fulfill its mandate as the representative of the people and reiterating further our demands:
1. Repeal the Sedition Act 1948,
2. Drop all existing charges and release all those who have been incarcerated under the Act,
3. No replacement Act with the same draconian provisions.