The arbitrariness of the Sedition Act

                           Lim Guan EngTHE roll call of those who’ve been prosecuted or investigated for sedition in Malaysia is an illustrious one. Lim Guan Eng, Karpal Singh, Zulkifli Sulong, and, of course, Malaysiakini. With his arrest and possible prosecution, Wong Chin Huat entered into august company.

A cursory glance through the major cases over the last 30 years reveals one common thread. Not one of them has advocated the violent overthrow of the state. Instead, they have all criticised individuals in
                           Karpal Singhgovernment or government policies or the actions of the component political parties. However, this, to a large extent, is the function of opposition political parties and the media: to act as a check to executive power.

The rationale for any sedition act is to protect the state from violent overthrow. But across the world, democracies have been slowly dismantling their legislation on sedition. And in countries such as Australia where legislatures have enacted 
                                   Wong Chin Huatnew provisions restricting sedition to inciting the state’s violent overthrow, these haven’t even been used.

 Disaffection

The Malaysian Sedition Act is seen internationally by freedom of expression advocates as being particularly problematic, because of its wide-ranging provisions. The broadest of these is Section 3 which reads that a “seditious tendency” is a tendency, among others, to “bring into hatred or contempt or to excite disaffection against any ruler or against any government.”

The clause also defines “seditious tendency” as the tendency to “raise discontent or disaffection amongst the subjects of the Yang diPertuan Agong or of the ruler of any state or amongst the inhabitants of Malaysia or of any state.”

This means that complaining about the traffic to a group of people can be construed as an act of sedition — if it causes people to be discontented. A football team that loses a match, causing discontent among its supporters, could be guilty of sedition. A football team winning a match, causing discontent among the other team’s supporters, could also be guilty of sedition!

And as Wong pointed out in a Centre for Independent Journalism (CIJ) forum Media under Najib: Hope or Disappointment? on 10 May 2009 in Kuala Lumpur, if the rule on exciting disaffection against government was enforced, Malaysia would not be able to have meaningful elections.

“The clause effectively means that opposition political parties cannot campaign in an election because they would be raising disaffection against the government.

“And even in Pakatan Rakyat states, how can the Barisan Nasional (as the opposition), campaign against the PR (the government) because that would be seditious,” Wong, who was released on 8 May from police detention, notes.

Worse, the “seditious” party doesn’t need to have demonstrated an intention to commit a seditious act. They have to show a “tendency”. This is a fairly woolly term, and it’s difficult to see exactly what it means.

And because sedition isn’t confined to words, but is also deeds, gestures, or poor performances in football matches, these can all constitute seditious acts. It could also be about not doing something — so if a football team decides the whole sport is too risky and decides to stay home causing unhappiness among “inhabitants of Malaysia or of any state”, that can also be an act of sedition.

The implication of this is that everybody is guilty of sedition. If you flub your lines in a play, or write an article that criticises the Sedition Act, these are acts of sedition.

Who decides?

There are a couple of “get out” clauses. These include the right to point out errors to the rulers or to point out defects in government or the administration of law, but these have rarely been successfully used in defence.

The overall impact is that Malaysian judges use their own discretion, rather than the law, to decide whether a person is guilty of sedition or not. If someone complains that you have committed an act of sedition, and they cite the above section, then you presumably have caused them some discontent. So you are guilty.

This is hugely problematic. In theory, it should be possible to not break a law. I can choose not to murder someone. I can choose not
(Silhouettes by mzacha / sxc.hu)to drive recklessly, choose not to commit snatch theft, rape, or to not publish a magazine without a permit. On this basis, you can be declared guilty or not guilty of a crime.

It is the job of the police to ensure that all those who commit crimes are brought before the courts. It is the court’s task to ensure that those found guilty beyond reasonable doubt are then sentenced and pay off their “debt to society”.

But this whole judicial process is just not possible with sedition. Whatever I do or do not do, there is a high probability that it will cause discontent to some subjects of the Yang diPertuan Agong, for example. So right at the start of the process, I cannot make a choice about whether or not I am committing a crime. I am almost certain to commit a crime, regardless of what I do. And this is true of every Malaysian.

If we follow this through, you can see how absolutely ludicrous this position is. We all should be locked up, even those making the decisions to turn the key. It cannot be done.

But if we’re all guilty, who decides who gets locked up and who remains free? Under the constitution, which declares us all equal, nobody should have that power. It should be our actions and our intentions that result in us being locked, not the decision of an individual or group of individuals, whatever robes they wear.

The result is that people in power can use, and have used, their power to prevent criticism of others in power. The Sedition Act works well both in its power to prevent people from speaking out against the powers-that-be and in prosecuting those who do speak out.

Bad for government

What should be recognised is that this isn’t just bad for government critics. It’s bad for the government. If there is no connection between senior politicians and Mongolian translators, an impartial judicial process will administer and be seen to administer justice, both against those who commit crimes of murder and those who commit
(Source: sevenoaksart.co.uk)crimes of defamation. And the public will see justice done, and the vast majority will dismiss any wild allegations of government conspiracies.

But when critics are silenced, the rumour mill starts. And the harsher the official silencing, the faster the rumour mill turns. By their own actions, the government is brought into disrepute.

And the only way round it is to allow free discussion, to have open and free investigations, and for justice to be administered and seen to be administered impartially. This would, of course, require the repeal of legislation such as the Sedition Act.

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Sonia Randhawa is a director of the Centre for Independent Journalism, and author of Instant Expert: The Malaysian Media, a guide to media legislation.