Police face-off Bersih protestors

PM Najib had promised back in 2012 to abolish the Act, and as late as August 2014 was still insisting he would do this; but by November 2014 he responded to UMNO fear-mongering and revoked his undertaking, thus ignoring the work of his own National Unity Consultative Council and the draft National Harmony Bill drawn up by the Bar Council.

The bill to amend the Sedition Act was first read in the Dewan Rakyat on 7th April, and it was tabled despite the pending constitutional challenge in Azmi Sharom’s case, and in the face of Opposition objections that to do so showed a lack of respect for the judiciary and was in breach of parliamentary standing orders. Consistent with its usual practice, the government did not circulate the draft bill for community comment prior to its being tabled. Moreover bills are almost never referred to a select committee for detailed scrutiny by a bi-partisan group of MPs, and there is no standing committee for this purpose either (nor is there an independent law reform commission or similar institution). This practice has the effect of catching the Opposition unawares and limiting its capacity to debate the contents of the bill, thus lessening the quality of any further amendments that might be proposed when the Dewan Rakyat briefly convenes as a committee of the whole house at the time of the second reading. Indeed, it seems that most government MPs were unaware of the contents of the Sedition Amendment Bill until it was first tabled. There was also limited engagement with civil society, although media reports provide evidence that supporters of a fortified Sedition Act had advance knowledge, because their suggestions for strengthening the Act are consistent with the contents of the amendments. In any event, the Bill was bulldozed through the House in a late night sitting – the third that week to end after midnight– and it passed in the early hours of 10th April.

The amendment Bill at first reading offered a medley of changes, two of them surprisingly progressive, the rest decidedly not. Government back benchers joined Opposition politicians and independent media commentators in condemning the harshness of the other proposed amendments, resulting in some slight amelioration.

First, the enlightened revisions. The explanatory statement appended to the Bill acknowledged that the Sedition Act had been misused “to stem legitimate criticism of Government and discussion of issues of concern to Malaysians”. In recognition of this, the Bill amended the definition of “seditious tendency” in section 3(1)(a) and (c) to decriminalise criticism of “any government” and “the administration of justice”. This is major reform because it removes the outmoded and authoritarian notion that it is subversive or disloyal to oppose the government of the day, or robustly to criticise the judiciary or the legal system, whereas these are things opposition political parties, civil society groups, lawyers and legal scholars, and indeed any member of the public, should be able to do in a functioning democracy.

The remainder of the amendments are decidedly retrograde because they extend both the reach and the harshness of the Act.

Sedition’s scope has been extended by altering the definition in several ways. Previously, to be found guilty of promoting animosity “between different races or classes” the prosecution had to prove beyond a reasonable doubt that the accused had promoted feelings of both “ill will” and “hostility”. Now it will only be necessary to prove either “ill will, hostility or hatred”. An additional ground of sedition has been inserted (new section 3(1)(ea)), penalising the promotion of “ill will, hostility or hatred between persons or groups of person on the ground of religion”. There are three things to note here. One is that there is a commonality of subject matter between section 298A of the Penal Code and new sub-section (1)(ea), and that aspects of the former provision have been held by the courts to be unconstitutional. It will be interesting to see how the courts construe this amendment when called upon to do so. The other important point is that the government’s express intention as set out in the explanatory memorandum to the Bill is to “protect the sanctity of religions” in Malaysia. This is rather a different project from fostering religious toleration or even deterring and penalising hate speech on the grounds of religion. It is, however, consonant with the way UMNO’s ethno-nationalist mission has come to encompass an expansive role for Islam in public life, provided it the state-sanctioned version. Thus the memorandum explains that in relation to Islam, the definition of “religion” excludes “deviant teachings”. In other words, the Act will not penalise, and by implication the government condones, promotion of ill will, hostility and hatred towards Islamic minorities in Malaysia. This is a long way from national harmony.

A final related point is that the amendment to section 3(1)(a) decriminalises criticism of the government, but has left intact the offence of exciting disaffection against the Malay Rulers (ie the federal King – Yang di-Pertuan Agong – and the hereditary state Sultans). As the Rulers have the constitutional role of guardians of Islam and Malay custom, it has been a short step for far-right Malay-Muslim pressure groups like Perkasa to denounce any critical appraisal of Islamic courts or Islamic bureaucracies as seditious repudiation of the Ruler’s authority. The combined effect of the amendments to section 3 may well have the effect of encouraging this. The initial amendments also specified by way of an illustrative note that agitating for secession of a state from the Federation would constitute sedition, but this was dropped when the amendment Bill was revised in committee. Nevertheless the government has signalled a warning that the kind of dissatisfaction currently being articulated by Sabah and Sarawak, for example, might attract the attention of the Public Prosecutor.

In addition to the definitional alterations in section 3, the penalties specified in section 4 have been made much harsher. First, there is a new mandatory minimum sentence of 3 years’ prison for a first offence, thus removing judicial sentencing discretion and also deleting the lesser sentence of a fine not exceeding 5,000 ringgit. This is of great concern because Opposition MPs have frequently been the target of sedition prosecutions, and under the Electoral Offences Act they will be disqualified from retaining their parliamentary seats if sentenced to a penalty of this magnitude. Secondly, the maximum prison sentence has been increased from five years to seven. In addition, the amendments create a new section 4(1A) offence of aggravated sedition, that is sedition that “causes” bodily injury or property damage. It is not clear why this is necessary when injuring persons or damaging property are already either criminal offences or civil wrongs, depending on the circumstances. The clue, and presumably the forensic complexity, will be in establishing causation. Is the amendment intended to mean that if A makes a remark that offends the sensitivities B, for example on the grounds of race or religion, and B (and his cohorts) feel sufficiently enraged to carry out acts of violence in retaliation, that A will be considered to have caused the damage made by B? It will be interesting to see how the courts construe the meaning of causation in this context. In the original amendment the penalty for aggravated sedition was a mandatory minimum of five years’ prison, but in committee this was reduced to three. The maximum sentence of twenty years’ prison, however, remains.

Another harsh aspect of the original amendments was the removal of the courts’ discretion to grant bail to an accused in proposed section 5A. This was considered unduly punitive, and the provision was removed in committee, thus restoring some measure of judicial independence. However the autonomy of the courts is eroded in the new section 5A (numbered 5B in the original amendments), which stipulates that, on the application of the Public Prosecutor, the court “shall” order an accused to surrender travel documents. This provision is obnoxious in two ways: it turns the judicial arm into a rubber stamp of the executive by requiring judges to accede to the application of the Public Prosecutor; and it has the potential to restrict the international travel of an accused for an indefinite time. The potential for abuse is obvious.

The Act is also made harsher by removal of the discretion of the courts to award a lesser penalty for youthful or first-time offenders. If convicted of the new offence of aggravated sedition, they will now, by virtue of new section 6A, be subject to the enhanced penalties in section 4A, rather than the diversionary penalties of admonition and discharge, or good behaviour bond previously available under sections 293 and 294 of the Criminal Procedure Code. Convictions will also be easier to obtain, because the safeguard in section 6 that “no person shall be convicted … on the uncorroborated testimony of one witness’ has been removed.

The Sedition Act already contains a provision empowering the courts to make a prohibition order to forbid the circulation of seditious print publications in certain circumstances. The amendments enhance this power by increasing the penalty for breach of a prohibition order (from a maximum of 1,000 ringgit or 1 year’s prison or both to a maximum of 5,000 ringgit or 3 years’ prison, or both for a single breach, and a fine of 3,000 ringgit per day for a continuing offence). The amendments also extend the reach of prohibition orders from print to electronic media, thus effectively ending former Prime Minister Mahathir’s famous undertaking (reiterated by Cabinet in 2008) not to censor the Internet. Under proposed section 10(1A), a court can require a person to remove an item from the Internet, and can also prohibit a person from accessing any electronic device. Furthermore, new section 10A empowers the court to direct the Communications and Multimedia Commission to block the Internet in circumstances where the maker or publisher of the seditious statement cannot be identified.

Public outrage, back-bench unease and international diplomacy may, perhaps, convince the government to withdraw the Bill from the Upper House (Dewan Negara), or defer gazettal, although this is probably just wishful thinking. Meanwhile, at least as worrying as the return of draconian law-making is the administration’s apparent decent into lawlessness. Here I refer to the Public Prosecutor’s decision repeatedly to prosecute an Opposition politician for illegal assembly – protesting Anwar’s conviction – under a section of the PAA that has been invalidated by the courts, and to the Inspector-General of Police’s directives for pre-emptive arrest of organisers of the Kita Lawan rallies (protesting Anwar’s conviction and the new Goods and Services Tax). Such conduct gives the impression that the police and the Public Prosecutor are simply unable to accept that public gatherings have been decriminalised since 2011, and indeed that the coercive force of the state is theirs to use at will.

None of this bodes well for the state of democracy in Malaysia.

Amanda Whiting is a legal historian at Asian Law Centre, The University of Melbourne. She is writing a history of the Malaysian legal profession, and a separate but related history of sedition in Malaysia. This article is the final part of a three part series analysing the Bill to reform the Sedition Act in Malaysia. Part 1 and Part 2 are available HERE and HERE.