“An outdated and repressive piece of legislation that has been primarily used against opposition politicians but in recent months have included journalists, students and academics”
Amnesty International
The Sedition Act of Malaysia has been widely critiqued as “vague” and “archaic” by many human right activists, lawyers, politicians, etc on a domestic as well as international level.
This has led to many to believe that the Sedition Act of Malaysia is an example of an unjust law because it is seen to be a tool used for politically motivated means. Although the Sedition Act faces many and harsh criticisms, nevertheless it is still a law that is legitimate and continued until this very day.
In my dissertation, I would like to discuss the reasons behind obeying or disobeying an unjust law and evaluate whether or not the Sedition Act of Malaysia is an unjust law.
So what deems a law as unjust?
“An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law.“ – Dr. Martin Luther King, Jr., “Letter from a Birmingham Jail“
St. Thomas Aquinas was a very influential theologian and philosopher during the 13th century. The eternal law refers to the law of nature. This refers to man’s intuitive desires and instincts which are referred to as basic goods. John Finnis, a follower of Aquinas, believed there to be seven basic goods. These seven basic goods are:
Life
Knowledge
Play
Aesthetic experience
Sociability of friends
Practical reasonableness
Religion
Life refers to self preservation, i.e. our survival instincts ,as well as our drive to procreate which can be considered as part of self preservation as we want to ensure that our species remains. Sociability of friends is our desire to live and feel accepted in a society. As Aristotle puts it “Man is by nature a social animal”. Moreover, play, aesthetic experience, practical reasonableness and religion are all part of man’s aspirations to improve and make decisions to bring better change and more enjoyment to our lives.
Natural law on the other hand is the belief that the law should be based on morals and ethics. Aquinas’ argued that man is endowed with reason and thus it is their inert ability to reason out whether an action is morally good or not. For example, we can come to the conclusion that killing is wrong because through the eternal law, we recognise the value of our own lives, which leads to us recognising that other lives are just like ours and as valuable, therefore we should not kill because killing would be a violation to natural law.
Thus Aquinas defined an unjust law to be a law that is not in accordance to human reasoning and impulse which Martin Luther King interpreted as the moral law. This makes sense as it is easy to understand why discriminating people based on colour is morally wrong because you infringe on another person’s rights to their basic goods and this knowledge allows you to use your endowed reasoning skills to reason out why you should abolish laws that segregate people by colour.
To sum up, if a law is immoral, then it is deemed to be unjust.
Should an unjust law be obeyed?
Hobbes would argue that positive law, laws that have been laid down by human institutions i.e. king, government, etc, is to be obeyed in all circumstances, no matter how unjust the law was. He states that man have entered a social contract with the ruler of the land, the role of the ruler is to keep order in society upon the condition that they would obey the ruler absolutely. Hobbes went on to state one of the principles of natural law is that men must fulfill their promises which they make. Therefore disobeying the sovereign is considered as injustice.
Similarly, John Locke held the stance that the government’s role is to ensure the protection of the individual and as long as it is faithful to this pledge, the government cannot be denied its power. If the government fails to protect its people, then its laws have no validity. In this case, Locke, like Hobbes, believes that it is more beneficial for society as a whole to obey the laws, whether just or unjust, created by the government. However, Locke and Hobbes are very different in the sense that Hobbes emphasises on the importance of authority whereas Locke supports democracy. Locke focuses on the individual's’ rights to freedom, equality, property. He used the concept of social contract to explain why governments and their laws have to be obeyed because the government represents the majority and have been entrusted to ensure that the individual’s rights are not infringed upon. This view is still prevalent as some people might argue that the whole system of voting a political party into power is reflective of the majority of people consenting to conform to that particular party’s instruction as government and since the majority of people have accepted the party as their “ruler”, for the sake of stability the minorities should also conform to the party and wait for the next elections. Therefore, an unjust law will have to be continued to be obeyed until the sovereign changes it or until there is a change in sovereign.
However it is important to note that Hobbes was born when England was having a civil war and he became the secretary to the King, thus explaining his opinion. Furthermore, the problem with Hobbes argument is that it is very theoretical and impractical. It is theoretical in the sense that it assumes the king/ruler to be rational. Furthermore, it is extremely vague on the methods of how the king keeps order in society. One clear example from history of why this argument is seriously flawed is the leadership of Adolf Hitler. According to Hobbes, the German citizens had to follow all laws including the unjust laws set by Hitler because he was their ruler. Due to the fact that Hitler can be considered to be “keeping order in society”, there is an obligation by the people to do as Hitler says, no matter the millions of lives lost due to his oppressive regime. Reflecting on this, we as society know how extremely wrong the actions of Hitler was and therefore cannot take up Hobbes view. We also cannot fully agree with Locke’s view as studying the rise of Hitler will highlight how Hitler was able to, due to majority rule, get the necessary power he needed to establish himself as virtually a dictator of Germany. This would lead back to Hobbes’ situation where the citizens are forced to oblige to obey the ruler and their laws in all circumstances, cancelling out the democracy intended by Locke’s argument.
On the other hand, the quote “lex iniusta non est lex” by St. Aquinas and famously quoted by Martin Luther King, translates to “ an unjust law is not law”. It argues that all laws should be created in agreement with the natural law because the natural law furnishes principles. These principles are the foundation of what all human institutions are built upon and since the government is a human institution, therefore all laws created by man must be based on reason which is based on natural law. Positive laws should be obeyed by people unless it is an unjust law. By this, he means that positive law is in accordance to the natural law and any positive law not in accordance to the natural is deemed unjust and should not be obeyed.
The Stoics were also in agreement with this view that positive law, man-made laws, must conform to the natural law. The Stoics observed a belief that the universe was governed by “reason” and man’s reason was a part of the universal reason. Hence, man lived naturally if they lived according to reason because man’s reasoning is in line with the universe reason. Therefore they enforced that all
positive laws conform to natural law so that all man may live naturally.
It is fair to criticise St. Aquinas’ argument to be theoretical and impractical. Aquinas emphasised on positive laws to be built upon natural laws, and since natural laws are based on a person’s ethics and morals, it is impossible that everyone will have the same ethics and morals. This creates a grey area when it comes to controversial topics such as abortion and same sex marriage. Personally, although I understand that this grey area is a source of criticism towards Aquinas and I may not fully agree with Aquinas’ morals and ethics, however I do agree with Aquinas in the sense that there has to be an inclusion of morality in the creation of laws. This is because I believe that if the law is meant to be for the well being of the individual, then morality should play a role in trying to create the most fair and most just laws possible. If the law is extremely unjust and based on no moral grounds i.e. laws that discriminate based on colour, then I do believe that they should not be obeyed.
An obvious criticism of the Stoic argument is that not everyone believes in an universal “reason”, rule, etc. This would then dismantle their argument that the foundation of positive laws should be based on the universal “reason” because critics will argue that the universal “reason” does not exist in the first place and thus positive laws should not be based on something that does not exist. However, some credit must be given to the Stoics for emphasising that positive laws must be able to be backed up by human reasoning and cannot be in anyways discriminant to a particular group of people without proper reason.
In my opinion, I agree with Locke to a certain extent regarding the role of the government and if they do have the majority rule then the citizens should allow the government to rule the country and the minorities should not be allowed to act as they wish. However, I think that it is extremely important to avoid the possibility of the government using its powers to ensure that they always stay in power, just as Hitler did. Therefore, as an improvement, I suggests that there should be a separation of government and the judiciary. In this sense, we do not allow the government to have full dictator-like control over the country as the judiciary will protect the interests of society by disallowing the creation of unjust laws proposed by the government. Furthermore, the judiciary can also include Aquinas and the Stoics’ argument that there should be some link between morality and the creation of law in order to prevent unjust laws from being passed. To solve the moral and ethics issue of the Aquinas’ argument, perhaps the judiciary could adopt the Universal Declaration of Human Rights or something similar as a kind of foundation to ensure that everyone is on the same page. Through this, democracy is enforced as people are assured their freedom and rights and due to that assurance, stability in the country is more likely as people don’t feel the need to challenge unjust laws.
What is the Sedition Act of Malaysia?
The Sedition Act of Malaysia is a law in Malaysia that bans acts, speeches or publications that disrespects the government or Malaysia's nine royal sultans. It also prohibits people from inciting hatred between different races and religions, or questioning the special position of the ethnic Malay majority and the natives of Sabah and Sarawak.
The Sedition Act has a lengthy history. Under British colonial rule, the Sedition Act of Malaya was put into place in 1948 and was used against local communist insurgents, ten years prior Malaysia’s independence in 1957. After Malaysia’s independence, the Sedition Act continued and was not repealed, this was because it was impossible for the 1957 Malaysian government to have immediately form a new set of legislations to replace the existing British laws. Moreover, elements of the Sedition Act can be traced back to the Indian Penal Code and further back to 14th century England. This explains why some critics are in support of repealing the Sedition Act due to its archaic origins.
Understanding the criticisms of the Sedition Act
In July 2012, Prime Minister Datuk Seri Najib Razak pledged to remove the Sedition Act 1948 and replace it with a proposed National Harmony Act to help deal with the rising racial and religious issues. However, in November 2014, Najib contradicted his 2012 statement by announcing that the law would instead be “strengthened and made more effective” with a “special clause to protect the sanctity of Islam, while other religions also cannot be insulted”
This has caused alarm to many politicians, lawyers, human right activists, students, etc as they believe that the Sedition Act 1948 has been used by the government to silence and shut down critics and political opponents, infringing on the right to freedom of expression and causing people to fear of the possibility of the establishment of an authoritarian rule in Malaysia. Many human right activists have also pointed out that Malaysia has repeatedly reaffirmed its commitment to the Universal Declaration of Human Rights, whereby in article 19 it provides:
“Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”
They argue that the strengthening of the Sedition Act will only cause further deterioration of Malaysia’s international reputation.
Furthermore, the Sedition Act 1948 has also been criticised to be too vague as the definition of “sedition” is not clearly provided. Instead the Sedition Act only provides a definition of “seditious” as:
““seditious” when applied to or used in respect of any act, speech, words, publication or other thing qualifies the act, speech, words, publication or other thing as one having a seditious tendency; “
The absence of the definition to what counts as “sedition” means that it is subjective and open to various interpretations with a wide discretion given to prosecuting authorities, giving them the opportunity to abuse the law.