Sedition Act 1948 is currently the government’s primary weapon against disssent apart from Internal Security Act in Malaysia. The Sedition Act criminalizes expressing seditious words or acting with seditious tendencies in ways that incite hatred, dissatisfaction with the government or the courts, hostility between racial or class groups, or questioning of provisions of the Constitution. In addition to actions and speech, the Act outlaws printing, publishing, selling, offering for sale, distributing or importing seditious publications as it has been stipulated in Article 4 of Sedition Act 1948. The punishment is a fine and/or imprisonment for up to three years. Also, repeat offenders may be given sentences of up to five years. It was originally enacted by British colonial authorities to contain a communist inssurection and it was only infrequently used between 2009 and 2013. Although communism is no longer threat and despite almost five decades of independence, it has been continuously used by the executive to silence the critics. After the 2013’s election, the government began to use the law aggressively to harrass, arrest and prosecute opposition politicians, civil society activists, and anyone else who had spoken critically about the government. Therefore, Sedition Act 1948 should be abolished. It was in fact the Prime Minister’s proposal for the abolition of the Sedition Act, repeated thrice, that triggered the intense debate that has followed since.
First of all, the law should be used as a tool for social change and not as a tool to stiffle free speech and expression. The freedom of expression is a fundamental human right and also key to democracy, which can flourish only in societies where information and ideas flow freely. The importance of freedom of expression in a democracy has been stressed by a number of international courts indeed. According to the International Commission of Jurists (2014), the Malaysian government’s increased use of the 1948 Sedition Act to stifle freedom of expression and silence voices perceived as challenging governmental policy. Open rational and objective discussion will provide a deeper commitment to core principles of the Federal Constitution. However, government must recognise that just because an individual raises a question or thought it does not mean that core themes such as religion, language, special position and monarchy will be dismantled. It clearly shows that the Sedition Act is actually intended to create a chilling effect and strike fear in Malaysians, but the government urged his countrymen to continue to speak out. This meant the death of human rights and freedom of expression in Malaysia, Phil Robertson and Human Rights Watch (2014). Therefore, any law that criminalize free expression have no place in a modern Malaysia due to incompatible with international human rights standards. In view of the reality, discussion on sensitive issues as contained in the Sedition Act are no longer sensitive since it is being openly brought up to scrutiny and question by all and sundry in the internet and in other alternative medias. Therefore, to continue to shut people up by using a repressive law like the Sedition Act is definitely a step in the wrong direction as it would further alienate the people from any government which claims to be a government for the people and by the people.
Besides, according to Steven Thiru (2016), it is an oppressive law that continues to sow seeds of intolerance, disunity and enmity in our country. Harmony and unity cannot be achieved by coercion, especially through legal compulsion. Lasting harmony and unity requires time, hard work, good education as well as the cooperation of all parties. Therefore, by using the draconian act in the name of peace, unity and harmony is greatly unacceptable and clearly violates the right to freedom of speech and expression guaranteed by the most superior law of the land, the Federal Constitution. The government should focus on education to educate people instead, not by using an act that is obsolete, unjust and oppresive.
In addition, according to Amnesty International Malaysia (2014), Sedition Act is a draconian law. Draconian in law term means excessively harsh and severe as it severely restricts the parlimentarian’s duty to speak without dear or favour when raising issues of public interest. Parliamentary privilege that provides lawmakers with legal immunity to discuss matters freely in Parliament does not apply in cases involving the Sedition Act 1948. Parlimentary privilege is thus no defence for words that are considered to be seditious. The Sedition Act 1948 actually spells the death knell for the opposition in any parliamentary democracy and therefore this is another justification for its repeal. The relevance of the Sedition Act today must be looked at along the lines of maintaining public order by deterring and punishing those who incite violence and public disorder, and in curbing the threat of terrorism. However, our Sedition does not address these concerns. It only seeks to criminalise speech or expression that is critical of the government, its policies and its institutions. Opposition MPs or even MPs from the ruling party, as the elected representatives of the people, should be allowed to criticize the administration of government and its policies since it is the legitimate expectation of the people in accordance with the principles of transparency and accountability. In Dr. Ooi’s case for example, it was decided that seditious words are words that tend to make the government insecure. In retrospect, it is the prime objective of any opposition parties when it engages in any political debate or discussion. Otherwise it would mean that political parties would have no role to play in the democratic process and that would be against the time-honoured principle that the opposition provides the check-and-balance in government, the notion that the opposition in Parliament is the bastion to ensure transparency and accountability in the administration of the government. This endangers values we hold dear in a democratic society. In Kenya, they have repealed its Sedition Act after it was found that it was more of a political offence rather than a criminal one. It was seen as being used as a political tool to silence the opposition.
Secondly, according to International Comission of Jurists (2014), the provisions of the Act are vague and broad and allow persons to be charged on flimsy grounds. Our former Attorney-General (AG) says that the present spate of charges by the AG under the Act smacks of persecution. This is made possible because of the vast discretion given to the AG to determine what constitutes “seditious tendency” under the vague, subjective and broad provisions of the Act. The words “to bring into hatred or contempt or to excite disaffection or discontent against the administration of justice, the ruler or against any government”, which make up the meaning of the words “seditious tendency” under the act are vague, oppresive and liable to be abused. Seven decades ago a legal commentator, Edward Jenks, described it as “most arbitrary in criminal law.” A law that attracts such widespread condemnation and is based on vacuous provisions lacks validity in the public eye. It brings the law and those who use it into disrepute. It should not be part of the legal architecture of a country based on the rule of law in a functioning democracy. The legal elements of sedition are vague, imprecise and ill-defined, therefore liable to be abused. The United States Supreme Court has struck down legislation on the basis that it is void for vagueness and want of certainty. A law is void for vagueness, if it fails to give a person fair notice that certain conduct is prohibited. Unfortunately, this is a stricking feature of the Sedition Act 1948. The law simply cannot be justified as a restriction on freedom of expression. It is excessively vague, serves no legitimate aim sanctioned by international law and it cannot be justified as necessary in a democratic society, in particular because of its overbreadth and the serious chilling effect it has on open, democratic debate. Furthermore, steps should be taken to bring about an end to political victimisation and to allow parliamentarians, opposition party members, media, human rights organisations and any other person or body highlighting issues critical of the government the freedom to express themselves openly and without fear of retribution, legal or otherwise. The criminal offences cannot be charge under an Act that the interpretation is too broad and inconsistent. It is unacceptable for criminal sanctions to be imposed based on unclear or ambiguous provisions of law
A further problem with the Malaysian law of sedition is that it breaches the fundamental principle that any criminal offence should contain a mens rea or mental element, known in Latin as, actus non facit reum nisi mens sit rea. The Malaysian Sedition Act 1948 disregards this vital prerequisite by substituting ‘intention’ with the idea of a ‘seditious tendency’. The Act clearly specifies, in section 3(3), that the intention of an accused person is irrelevant if they committed an act which has a seditious tendency. Thus an individual who had no intention of committing sedition can be imprisoned for up to three years simply as a result of uttering something which, for example, causes certain individuals to become discontented. It is disproportionate when high penalties of a minimum three years’ jail to a maximum 20 years’ jail for offences that do not even require proof of intention. Further, it is fundamental requirement that penal laws like the Sedition Act contain a mens rea element. With the dispensation of a fundamental element like mens rea to establish criminal liability, the Sedition Act violates the principles of fundamental justice. These two grounds are sufficient justification for the repeal of the Sedition Act 1948.
In conclusion, the Sedition Act 1948 will not guarantee peace and harmony, killing freedom of speech and expression, and will only create a “culture of fear” among Malaysians, therefore, Sedition Act should be abolished.