As reported in the news, the Malaysian Bar’s extraordinary general meeting (EGM) held on September 19 ended with the motion to call for the abolition of the Sedition Act 1948 being passed with 701 members saying aye for the act to be repealed.
It is noteworthy, however, to mention that despite the majority vote, there were a small number of members – 13 to be exact – who voted against the motion.
These 13 represented the voices of dissent, which denied the Bar a unanimous decision on the said motion proposed by the Bar Council.
While it is impossible to know exactly the reasoning or rationale behind the vote of the 13 naysayers, the gist of it perhaps could be gleaned from the transcripts of speech from two of the naysayers in debating the motion.
Despite attempts to record the meeting by video, the Bar Council had, however, prohibited the same from being done. Not being properly recorded, the following transcripts, therefore, are only a recollection of what the two naysayers said to the best of their memory.
Yours truly, during the debate, and amid boos from the majority, said thus:
“1. Section 42 of the Legal Profession Act provides that the object and powers of the Malaysian Bar include, among others, upholding ‘the cause of justice without fear or favour.’ In this regard, I’d like to commend the Bar Council today, for having acted ever so swiftly in calling this EGM, so that the motion to call for the abolishment of the Sedition Act could be debated among the members of the Bar.
2. Recent events have shown us that this act, which aim initially was to ensure stability, could and had been abused by certain quarters so as to stifle free speech. The charge against Dr Azmi Sharom for his opinion as an academic I believe is one example of this.
3. Indeed there is a need to ensure academic freedom, and we must think of ways how this could be achieved.
4. However, having said that – and there’s a big caveat here – I’m afraid the approach or the means with which the motion today is being brought, namely to call for the abolishment of the Sedition Act altogether, might be, in my opinion, disproportionate to the aim that we seek to achieve.
5. The Sedition Act was passed under the British administration in 1948. But later, following events of 1969, the act was revised, and in which, the provision of section 3(1)(f) was included to protect the Federal Constitution against unwarranted attacks to its basic structure, like that of the position of the national language, the rights of the Malays and the natives of Sabah and Sarawak, the sanctity of the Monarchs, and also on the questions of citizenship of the other races. Rather than calling for its abolition, I would think it is the duty of the Malaysian Bar to call for it to be strengthened, because to protect the Federal Constitution must always be the priority.
6. And let’s not forget, there’s another provision under the Sedition Act, which goes in line with the very object of the Malaysian Bar itself as spelled out in the Legal Profession Act. And that is this Section 3(1)(c) of the Sedition Act protects the administration of justice in Malaysia from being brought into hatred or contempt.
7. Make no mistake. In no way am I defending the misuse of the Sedition Act by the authorities to stifle freedom of speech. But as the saying goes, don’t throw out the baby along with the bath water. Or in the Malay language there’s a saying: “kerana nyamuk seekor dua, janganlah pula kelambu seluruhnya yang dibakar.”
8. It is in this regard that I’d like to repeat what the learned former Chief Justice Tun Abdul Hamid have said. While he made it very clear that the Sedition Act should not be repealed, he was, however, of the opinion that certain provisions of the act should be amended, and this includes doing away with the prohibition of criticising the government, as it goes against the very spirit and principle of democracy. But for the protection on the constitutional provisions and the administration of justice, rather than repealing them, they should be strengthened.”
After which, there were several other members who spoke for the motion.
But since the purpose of this article is to record the voices of dissent within the Malaysian Bar, we shall not go into detail as to what was said in favour of the motion to call for the abolition of the Sedition Act.
One particular remark, however, is worth mentioning, coming from one of those speaking for the motion, wherein he made a rather bold statement – one would even say uncalled for – something along the line that it is about time that “we be militant towards the government”.
To such an irresponsible remark, stood another naysayer from among the 13 dissidents, Faidhur Rahman Abdul Hadi, who, also amid jeers from the majority, soldiered on to speak his mind:
“1. The call of a certain member of the Malaysian Bar to agitate militantly against the government is cause for concern. We are practitioners of law and civilised people, and since we have sworn to uphold the rule of law what we do must be in accordance with the law. Any form of militancy and/or terrorism must not be condoned nor permitted.
2. The Sedition Act 1948 should be retained as it protects certain immutable provisions of the Federal Constitution namely Articles, 152, 153, 160 and 181 relating to the national language, rights of the indigenous people of Malaysia, namely Malays and other natives, and the position of the rulers. In this regard, since it has already been agreed by the chair that the intention is not and never will be to challenge these constitutional provisions, there is no need to fear the retention of the Sedition Act 1948 as the act exists for the prosecution and conviction of those who would.
3. Another grave concern is recent racial and religious rhetoric among certain segments of Malaysian society which threaten the delicate balance of harmony we fought so hard to maintain all these 57 years of Merdeka. Given what we have achieved so far in terms of development, it would be unthinkable to permit another racial riot along the lines of the May 13, 1969 incident to happen. Although the Penal Code provides for the criminalisation of incitement to hatred, the nature of this law is not preventive, unlike the Sedition Act 1948 which nips any problem at its source. The repeal of the act will have grave consequences for national harmony and history will remember those responsible for such a repeal should racial strife recur.
4. The Sedition Act 1948 may appear to be applied selectively, but all laws appear to be applied selectively, such as the Penal Code, the Dangerous Drugs Act 1952 and the like. Selective application constitutes a problem with enforcement and is not a ground for attacking and repealing any law and this naturally includes the Sedition Act 1948.”
* Aidil Khalid is a lawyer practising in Kota Damansara, Selangor.
** First published in The Malaysian Insider, 21 September 2014.