Open memorandum to the Prime Minister of Malaysia — Malaysian Bar

Malay Mail Online
OCTOBER 16, 2014

1. The Malaysian Bar has walked to Parliament today as part of our on-going campaign for the repeal of the Sedition Act 1948. It is in order to rid ourselves of an unjust law and unneeded crutch, and for the realisation of a better Malaysia.

2. The Malaysian Bar’s walk today is called the “Walk for Peace and Freedom” because we wish to promote a peace anchored by bonds of unity, lasting harmony and true mutual respect amongst Malaysians. We walk for the freedom from fear and intimidation; freedom from extremism; freedom from divisiveness; freedom from exploitation for personal, sectarian and selfish gains; freedom to question, criticise, discuss and debate; freedom to learn; and freedom to grow and mature.

3. The Sedition Act 1948 is inherently flawed. It is designed to subjugate, suppress and oppress. It is NOT designed to promote peace, harmony and unity. As a piece of criminal legislation, it is repugnant to the rule of law because it punishes freedom of speech and expression of thought by the use of imprecise and ill-defined offences. It does not require any proof of ill intention or intention to create disorder. Truth is not a defense. Hence, the Sedition Act 1948 in fact criminalises the truth.

4. The Walk for Peace and Freedom is part of the Malaysian Bar’s response to Prime Minister Dato’ Sri Najib Razak’s call for all right thinking and moderate Malaysians to stand up and speak out. The Malaysian Bar walks so as to give voice to such Malaysians.

Malaysia’s Transformation

5. On 3 April 2009, when Dato’ Sri Najib Razak became Prime Minister, he announced a series of freedom-enlarging measures. He removed the temporary ban on two news publications. He released 13 detainees from detention under the Internal Security Act 1960. He announced the conducting of a comprehensive review of the Internal Security Act 1960. He declared that “[t]hese decisions are timely as we move to enhance the confidence of our citizens in those entrusted with maintaining peace, law and order, while recognizing the need to remain vigilant of the very real security threats we continue to face as a young nation.”1

6. On the eve of Malaysia Day 2011, 15 September 2011, Prime Minister Dato’ Sri Najib Razak took the bold step of announcing that the Internal Security Act 1960 and three Emergency Declarations would be repealed at the next sitting of the Dewan Rakyat and Dewan Negara. The Banishment Act 1959 and the Restricted Residence Act 1933 would also be repealed. He also announced that the government would amend the Printing Presses and Publications Act 1984 to do away with annual printing and publishing permits. The Police Act 1967 would be amended to allow for freedom of assembly, wherein the requirement for a permit or permission to assemble in public would be repealed. These announcements were implemented.

7. Prime Minister Dato’ Sri Najib Razak had in April 2012 also introduced amendments to the Universities and University Colleges Act 1971 to allow for a broader measure of freedom of expression and association by university students. These came into force in August 2012.

8. Following on from these significant developments, Prime Minister Dato’ Sri Najib Razak had on 11 July 2012 announced that the government would repeal the Sedition Act 1948 and replace it with a National Harmony Act. He stated the following in his speech delivered at the “Majlis Makan Malam Jabatan Peguam Negara Bersama YAB Perdana Menteri”:

“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….

Kerajaan sedar bahawa umum menganggap Akta Hasutan 1948 sebagai alat kerajaan untuk merencatkan tindakan dan pandangan yang tidak sealiran dengan kerajaan. Walaupun anggapan sedemikian adalah tidak berasas sama sekali, kita perlu menghapuskan persepsi tersebut. Lantaran itu, peruntukan-peruntukan baru ini tidak akan menghalang rakyat untuk mengkritik kerajaan dan pentadbiran keadilan….

Pada analisis akhirnya saya teringat kepada pendapat ahli falsafah tersohor Britain, John Locke: “The end of law is, not to abolish or restrain, but to preserve and enlarge freedom”. Second Treatise Of Civil Government (1690)….

Melalui pemansuhan dan penggubalan undang-undang yang sedang berjalan, kerajaan mahu memastikan ruang demokratik yang mencukupi disediakan untuk perbezaan pendapat serta persaingan idea. Pucuk pangkalnya, kita mahu mencipta sebuah Malaysia di mana prinsip hak asasi manusia dijunjung, kebebasan individu untuk menyatakan pendapat secara terbuka diraikan, seraya kepentingan individu dan komuniti diimbangi.”

9. The Malaysian Bar supports Prime Minister Dato’ Sri Najib Razak’s programme of progressive and systematic reform and political transformation as set out above. His thinking and instincts are correct, and we call upon Prime Minister Dato’ Sri Najib Razak to remain steadfast and to persevere and continue with them.

Evils of the Sedition Act 1948

10. In this regard, we would point out that the Sedition Act 1948, as with its predecessor the Sedition Ordinance, was conceived by our then colonial masters and used as an instrument of oppression. It is an archaic and repressive law, and is the antithesis of democracy, rule of law, justice and human rights.

11. The Sedition Act 1948 has been used to stifle speech and expression, to shut out contrary views and voices, to quell dissent and opposition, to constrict and deny democratic space, and to oppress and suppress Malaysians.

12. The Sedition Act 1948 has been justified on the premise that there are matters that are too sensitive to address, speak about or debate; and that this particular legislation is therefore required to ensure and maintain harmony, unity and public order. Our 57 years of “Merdeka” has clearly shown this to be a myth.

13. The Sedition Act 1948 has instead served to deter or prevent important issues from being properly and genuinely addressed. Some of these issues are effectively “swept under the carpet” and allowed to fester. This legislation serves to perpetuate and entrench the racial, religious and other fault lines in our nation. It thus undermines and is counter-productive to efforts to build lasting peace and harmony, strong bonds of unity and real mutual respect in Malaysia.

14. It is no answer to say that we could improve on its use and implementation to avoid abuse. Our history of such oppressive laws, including the Internal Security Act 1960 (since repealed), has shown us that such laws are frequently abused irrespective of their stated purpose. The recent “sedition blitz” where the Sedition Act 1948 has been used to probe and/or prosecute students, law academics, lawyers, a journalist, members of civil society, Members of Parliament and State Assemblypersons is a glaring example of such abuse. To compound the problem, there are clear instances of selective prosecution. The lesson we learn is that the justness in the use of such laws cannot be dependent on the good faith of the authorities. Laws must in themselves be good and just. The Sedition Act 1948 is not such a law.

15. The statements of Prime Minister Dato’ Sri Najib Razak on his 1Malaysia blog dated 7 August 2012 and 4 April 2013 are to the Malaysian Bar an express recognition by the Malaysian Government that the Sedition Act 1948 is indeed an obsolete and antiquated law that is no longer suitable, relevant or consonant with the times.

An Inclusive Malaysia

16. The Malaysian Bar further recalls the speech of Prime Minister Dato’ Sri Najib Razak at the United Nations General Assembly in New York City on 26 September 2014 where he said:

“[W]e must pursue a different kind of politics…We must break the cycle where one group gains power only to wield it against the other. Where marginalisation leads to radicalisation, as people lose confidence in the state’s ability to provide both security and co-existence. Individuals and ethnic and religious groups need to feel they have a stake in a nation’s success, not its failure. So we should commit to more inclusive politics.”

17. In the same speech, Prime Minister Dato’ Sri Najib Razak also said that, “By demonstrating moderation in the political process, we can ensure no-one is left outside society.”

18. The Malaysian Bar could not agree more with Prime Minister Dato’ Sri Najib Razak’s words on “inclusive politics”. The fundamental freedoms of speech and expression, giving voice to thoughts and ideas, as well as the right to information, are fundamental attributes of a vibrant and thriving democracy, and that are essential for the development, progress and growth of a nation. It is robust debate, diversity of opinion and education that would ultimately promote, inculcate and maintain true and enduring unity, goodwill and mutual respect amongst Malaysians.

19. In the same speech at the United Nations, Prime Minister Dato’ Sri Najib Razak said that, “Malaysia stands ready to share its experience of marginalising extremism, maintaining a multi-religious country, where different faiths coexist and prosper.”

20. It cannot be that Malaysia’s sharing of its experience in fostering moderation is that of restricting freedom of speech and expression, arresting, investigating, intimidating and charging individuals under the Sedition Act 1948. It is precisely the clamping down on views, discourse and expression, and restricting democratic space, under the guise of the Sedition Act 1948, that has the effect of pandering to and encouraging extremist elements, and fomenting disunity and disharmony. 21. It is the use and abuse of the Sedition Act 1948 that has further served to impede the development of a mature, considerate and accepting Malaysian psyche; and perpetuates immaturity; lack of understanding; confusion and ignorance amongst Malaysians; and exploits insecurities, anxieties and fears.

22. The Sedition Act 1948 has no place in our nation, which aspires to be a modern, moderate and progressive democratic society that seeks to respect the rule of law and to engender lasting harmony and unity. The continued existence and use of this legislation only serves to prolong an addiction to a reliance on its draconian provisions as a knee-jerk reaction to expressions of purportedly sensitive issues and dissenting views.

23. We should instead be providing and promoting an environment where Malaysians engage one another in discourse and debate, questions and queries are answered, and criticisms are met with explanations; an environment where we can learn to transform into an inclusive, moderate, harmonious and unified Malaysia.

24. As the Sultan of Perak, His Royal Highness Sultan Nazrin Muizzudin Shah said in his speech at the University Malaya 53rd Convocation held on 13 October 2014,

“… Minda terbuka dapat memerdekakan jiwa individu daripada sebarang prejudis dan buruk sangka. Minda terbuka akan mengupayakan seseorang memahami malah menghormati pandangan pihak lain betapa berlainan sekalipun. Minda terbuka akan menyuburkan perasaan sabar dan toleransi untuk bersedia mendengar hujah yang berbeza betapa sekali tidak dipersetujui. Minda terbuka akan memberikan ruang untuk membolehkan lahir dan tumbuhnya idea baru, menyemarakkan budaya inovasi dan menyuburkan minda kreatif. Minda terbuka adalah komponen amat penting untuk membantu mengukuhkan amalan demokrasi di dalam sesebuah negara…

…Malah minda terbuka adalah faktor yang telah memungkinkan tertubuhnya sebuah negara bangsa melalui kejayaan mencantumkan rakyat daripada pelbagai agama, negeri, kaum, budaya dan bahasa menjadi satu warga kepada sebuah negara Malaysia yang merdeka; minda terbuka juga berjaya menyatukan matlamat di kalangan sembilan Raja yang bersemayam

di istana dengan rakyat jelata di serata kota dan desa. Nyatalah minda terbuka adalah aset sementara minda tertutup adalah liabiliti.”

(Our translation: “…Open-mindedness liberates the spirit of an individual from any form of prejudice or ill-will. Open-mindedness enables one to understand and respect the views of others no matter how contrarian they may be. Open-mindedness enables patience and tolerance to be able to listen to dissenting views no matter how disagreeable they may be…

…Open-mindedness is the factor that has made possible the establishment of a nation by the successful union of people of diverse religions, states, ethnicities, culture and language to form an independent country called Malaysia; open-mindedness also achieved unity of purpose among nine Rajas who reside in the palace with the citizens of all the cities and the countryside. Clearly, open-mindedness is an asset whereas close- mindedness is a liability.”)

Towards a Peaceful, United and Harmonious Malaysia

25. Lasting harmony and unity requires a lot of hard work, patience, understanding and education; not suppression, prosecution and punishment. Yes, the process could be long and would be painful; we will fumble and make mistakes, even serious mistakes, but we will learn and move forward. It is folly to think and believe that the Sedition Act 1948 or laws similar to it are the answers to promote, inculcate and maintain true lasting harmony and unity. How wrong and misconceived can we be to believe that force and punishment would engender respect and goodwill. It instead impedes learning, discourse, growth and maturity.

26. We therefore have grave concerns that the intended National Harmony Act should not seek to recast the Sedition Act 1948 either in whole or in part. We recognise that no freedom is without limits. Thus, incitements to, threats of or acts of racial or religious violence, and bringing into hatred the Royal Institution, are not acceptable in Malaysia.

27. These could, however, be dealt with by other legislation. The intended National Harmony Act or any replacement legislation by any other name should not seek to criminalise thought, speech and expression. It should instead provide a framework that recognises and encourages interaction, discourse, debate and learning. If there is to be a need for some measure of criminal penalties, then such measures must be limited – unlike the provisions of the Sedition Act 1948 that are imprecise and, also unlike other criminal offences, the Sedition Act 1948 does not require mens rea, that is the element of intent – the scope of the new offences must be narrowly defined and confined, and the threshold for breach must be set higher. Only threats of or incitement to, and actual ethnic or religious violence to persons or property should be criminalised, and the element of intention must be present.

28. A copy of the Resolution of the Malaysian Bar calling on the Malaysian Government to abolish the Sedition Act 1948 that was passed at its Extraordinary General Meeting on 19 September 2014 is attached for further information and reference. The Resolution was passed by an overwhelming majority of those who attended the Extraordinary General Meeting. The Resolution sets out in detail the way in which the Sedition Act 1948 has been abused, recounts the recent and unprecedented wave of arrests, investigations and charges, calls for the immediate repeal of the Sedition Act 1948 and the dropping of all action thereunder, and supports the proposed National Harmony legislation.

29. The Malaysian Bar recognises that Islam is the religion of the Federation and other religions may be practised in peace and harmony; the special positions of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities; and the sovereignty of the Rulers — these are clearly set out in the Federal Constitution. The Malaysian Bar upholds the Federal Constitution as the supreme law of the land. The call to repeal the Sedition Act 1948 is not a challenge to those provisions.

30. The Royal Institution, for example, is an integral and important part of our nation-building. Malaysians look to the Rulers to be Rulers and champions for all Malaysians, and not only for a segment of Malaysians.

31. There are extremist and irresponsible elements in our society. They spread misinformation, use intimidation and divisiness. They exploit fear and insecuritites. They seek to drive a wedge between Malaysians and polarise us. Do not allow them to succeed.

32. The Malaysian Bar recalls the preamble to the Rukun Negara: we are a nation dedicated to achieving a greater unity of all her peoples; seeking to maintain a democratic way of life; creating a just society; ensuring a liberal approach to Malaysia’s rich and diverse cultural traditions; and building a progressive society and nation.

33. The Malaysian Bar therefore urges Prime Minister Dato’ Sri Najib Razak and the Malaysian Government to continue to commit to and promote the building of a fair, just, harmonious, unified, moderate and progressive Malaysia, and reject all forms of bigotry, racist and religious extremism; to stay the course and to abide by its original and oft-repeated public pledge and promise to repeal the Sedition Act 1948.

* Christopher Leong is the President of the Malaysian Bar Council.