“Restrictions are a necessary part of the ‘right’ and in many countries of the world freedom of speech and expression is, in spite of formal, safeguards, seriously restricted in practice.” – Raja Azlan Shah J, PP v. Ooi Kee Saik
In a populist country, it does not matter whether a government’s decision is right or wrong; what matters is that the decision is a popular one, accepted and supported by majority. This is the highlight and the bane of democracy.
When Prime Minister Datuk Seri Najib Razak announced the retention of the Malaysian Sedition Act 1948, the uproar against the act got deafeningly louder and more aggressive. Sections within Malaysia that wish for a more liberal and freer country flippantly took to the keyboards to churn out miles-long commentaries condemning the decision. In support of their own fear, they brought in “foreign” names sympathetic to their cause berating the move.
Many may argue as such but the question in retaining the Sedition Act is not whether the decision is politically prudent. The question is simply whether having a sedition law in place is a popular decision that is accepted by the majority. In the protection of our sovereignty, we should be concerning ourselves with only what the Malaysian majority says and not with some far-off bumpkin’s mindless persiflage. Regrettably, as globalisation and the spread of the Internet have allowed foreign politicians and foreign law councils to contribute opinions about our laws, the question has become a global one.
Is sedition law globally popular? As it stands – despite popular belief to the contrary – the world actually seems to think it is. Highlighted below are some of the sedition laws effective in various jurisdictions; not surprisingly, including in that one far-off country that is looked up to by many as the so-called icon-figure of freedom and liberty.
The Malaysian Sedition Act 1948 is unique in the sense that it comprises not only of laws on sedition against (i) any ruler, (ii) any ruling government, (iii) administration of justice, and (iv) rights and privileges conferred under the Federal Constitution, but also prohibitions on racial hate-speech. That is exactly what the Sedition Act aims to achieve with recreants such as Alvin Tan, David Orok, Gopinath Jayaratnam, Chow Mun Fai and Sally Yen. Lest we forget, these are Malaysian citizens who did not shy away from throwing derogatory remarks against Malays and Islam knowing full well the repercussions they would face.
Sensibly, laws on racial hate-speech should be administered under a special statute that is more comprehensive in its preventive nature, even when there is no sedition law imposed in the country. For example, the likes of laws in the United Kingdom, where hate-crime regulations are available under the Public Order Act 1986, which aims to control the stirring up of racial hatred, or in France, the Pleven law adopted into Law No. 90-615 of 13 July 1990 (the Gayssot Act), which provides anti-racism laws and criminalises any Holocaust-denials, or such as laws in Denmark, where hate-speech is proscribed separately under Chapter 27 of the Danish Penal Code.
In most jurisdictions, sedition laws are available independent of the laws pertaining to hate crime. In Canada, for instance, violations of sedition law under Section 59 of the Criminal Code of Canada is dealt separately from hate-crime laws under Section 319 of the Criminal Code of Canada.
Notwithstanding the fact that Canada has about 7 codified laws directly restricting freedom of speech, Canadians enjoy liberal freedom as the laws in place to restrict freedom of speech are rarely ever used against its citizens – there is no new sedition case brought after the 20th century in Canada. That being said, Canadian police reported 1,414 hate-motivated criminal incidents in 2012 and some ended violently. The refusal by the government to apply the existing laws, makes Canada a poster child for “spare the rod, spoil the child”.
In Germany, laws relating to seditious acts are governed under Sections 84-91 of Strafgesetzbuch (the German Criminal Code). While laws relating to volksverhetzung (hate speech) are governed under Section 130 of Strafgesetzbuch.
As Germany continues its fight for liberties and freer freedom of speech, it should pause for a second and take note of the violence that is prevalent in its society. Streams of hate crimes perpetuated by neo-Nazis continue to inculcate fear especially among the immigrant Germans. In February 2013, a 74-year-old pensioner was charged with sedition for propagating anti-Muslim-immigrant sentiments. Only in 2012, German police unearthed serial murders of 10 immigrants, committed between 2000 and 2007 by Zwickau Cell, a neo-Nazi terror group. Recently, in a clear effort to assert German’s supremacy over its immigrants, Chancellor Angela Merkel’s coalition partners proposed that immigrants who seek permanent residency in Germany must speak German at home.
It does not matter to us whether Germany wishes to enforce its sedition laws to silence the anti-immigrant sentiments rampant in the country, what matters is that there is enforceable sedition law in the country. It is rather ironic that as Malaysians struggle to keep our voice loud, Germans are more concerned with what language is the voice spoken in.
In India, sedition is governed by Section 124A of the Indian Penal Code. Whereas hate-crimes in India are governed by (i) Section 153A of the Indian Penal Code, (ii) Section 295 of the Indian Penal Code, and (iii) Section 295A of the Indian Penal Code.
Of the countries that retain their sedition laws, India perhaps is among the most extreme in its application. In March 2014, 67 students from Jammu were arrested and charged with sedition for cheering in support of the Pakistan team in a cricket match between Pakistan and India. In August 2014, a student was arrested for insulting the Indian national anthem by hooting and refusing to stand up as the anthem was played. In such extreme, we are lucky the only common factor Malaysia has with India is that both countries are never in short supply of recalcitrant students.
In the United States of America, under Section 2385 of the US Code, it is unlawful for any person to knowingly advocate or teach the propriety of overthrowing or destroying the government of the United States, by force.
In respect for freedom of speech, this law is rarely ever applied and freedom of speech is very much alive in America. Luckily no one is concerned with freedom per se in America as 0.71% of its citizens remain incarcerated; including 2 Hutaree members originally charged under American sedition conspiracy laws. In comparison, the Malaysian incarceration rate is 0.13%. Truly, absolute freedom corrupts absolutely in the land of the free and the home of the brave.
In Singapore, the government still retains the Singaporean Sedition Act, which it originally inherited from Malaysia. On top of the Act, Singaporeans’ freedom of speech must also comply with the provisions under the (i) Internal Security Act 1960, (ii) Maintenance of Religious Harmony Act 1990 and regulations set by the Media Development Authority which is akin to our Malaysian Communications And Multimedia Commission.
Lee Kuan Yew once said: “If you keep on mocking your leader, poking fun at him, every day and he has no rights of reply, it is very difficult for him to command your respect.” Although the Sedition Act was not used in Singapore until 2005, when 17-year-old student was charged under the Sedition Act for calling Singaporean Malays and Muslims “rodents”, this is not to be taken as guideline that freedom of speech is placed on an untouchable pedestal. The Singaporean leaders kept themselves busy thwarting dissenting views against them by initiating throngs of defamation cases against their defamers; Lee himself has won not less than 10 defamation cases he brought.
Similarly, Brunei retains its Chapter 24: Sedition Act which is very much like the Malaysian Sedition Act.
In Norway, Chapter 9 of the Norwegian General Civil Penal Code makes lèse-majesté (violating majesty) a crime to, inter alia, defame the King or the Regent of Norway. This is in line with Section 5 of the Norwegian constitution which provides: “The King’s person is sacred; he cannot be censured or accused. The responsibility rests with his Council.”
Correspondingly in Netherlands, under Articles 111-113 of the Dutch Penal Code, it is a crime to insult the King, the Heir Apparent and their spouse. In 2007, a man was charged under the Articles for insulting Queen of the Netherlands.
With much hype surrounding Malaysia’s retention of the Sedition Act, it is hard to imagine that there are other countries around the world with their own respectively unique sets of sedition laws enforced to debar unwarranted criticism against their governments and citizens that may cause breach of public order. Yet these countries are not condemned and their sovereignty remained respected. Why is Malaysia discriminated as if its laws governing its own citizens and politicians are inferior to those enforced elsewhere? It is also pertinent to note that some of the countries mentioned above, such as Germany for example, have bar associations that have written letters and released statements in support of the Malaysian Bar’s own call for the Malaysian Government to repeal the Sedition Act 1948, an attempt that ended in spectacular failure. What hypocrisy indeed!
Malaysians cannot continue to scorn the law and disregard mutual respect for each other yet still hope that harmony subsists. Are we so spoilt rotten that we can question the constitution rights of our neighbours and call them “pendatang” just to win arguments? Are we so daft as to think vilifying another’s religion as “cool”? Are we so ignorant that we forget the place of the rulers in our constitutional monarchy? In order for Malaysia to see another 57-year of relative harmony, we must all live respectfully, and take heed of Albert Camus’s philosophy: “Absolute freedom mocks at justice. Absolute justice denies freedom. To be fruitful, the two ideas must find their limits in each other.”
* Fatihah Jamhari is a lawyer practising in Kuala Lumpur and an activist member of Concerned Lawyers for Justice (CLJ).
* First appeared in The Malaysian Insider, 11 December 2014.