Malaysian Bar Resolution against the Sedition Act, other laws and actions taken which stifle speech and expression, and matters in connection therewith

Adopted at Malaysian Bar EGM attended by 986 members held on 19/9/2014 with an overwhelming majority - 701 for 13 against and no abstentions [See also:- Bomb threat does not prevent lawyers from passing Resolution against the Sedition Act with an overwhelming majority ]

Resolution against the Sedition Act, other laws and actions taken which stifle speech and expression, and matters in connection therewith

Proposed by Christopher Leong, as Chairman of the Bar Council and on behalf of the Bar Council, dated 12 Sept 2014

WHEREAS:

(1) The Sedition Act 1948, as with its predecessor the Sedition Ordinance, was conceived 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.

(2) 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.

(3) 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 the Act 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.

(4) 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.   The Act serves to perpetuate and entrench the racial, religious and other fault lines in our nation.

(5) 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 which 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.

(6) The Sedition Act 1948 is unacceptable and repugnant to the rule of law for the further reasons that it creates offences arising from an act, speech, words, publication or other thing that are defined as having “seditious tendencies” which are imprecise and without clear boundaries.  Unlike other criminal offences, the offence of sedition does not require mens rea or the element of intent; the correctness of what is done, or the truth of what is said, printed or published is disregarded and not a defence to the offence. 

(7) It is wholly unacceptable that a criminal offence with grave and dire consequences is made akin to a strict liability offence.

(8) The Prime Minister had on 11 July 2012 announced that the government will repeal the Sedition Act 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 Deputy Prime Minister was reported in the media on 13 July 2012 as follows¹:

The repealing of the Sedition Act 1948 which will be implemented soon is proof that the government is not just empty talk in bringing about political transformation, said Deputy Prime Minister Tan Sri Muhyiddin Yasin.

He said the repealing of the Act was also proof that the government is keeping its word on bringing national transformation which was not only in the socio-economic sector, but political transformation like in the abolishing of the Internal Security Act.

“We don’t just talk or make announcements (on transformation), we act.  Some of the laws we introduced we have enforced, this (repealing of the Sedition Act) is the latest step to show the government is in tune with the people,” he told reporters after launching the Sungai Siputeh Mini Rural Transformation (Mini RTC) here yesterday .

The government was also concerned about development and changes in Malaysian society which wanted a system that was more transparent, a step that was in tandem with democratic practices and demands of human rights, he said.

He said the opposition also did not expect the government to take this brave a step in bringing about transformation, especially in the political aspects.

Muhyiddin also said the perception that the soon-to-be abolished Sedition Act 1948 was being used against certain individuals was not true.

He said he also hoped that the people could appreciate the sincerity of the government in bringing about national transformation, which also encompassed political changes.

(10) These statements of the Prime Minister and Deputy Prime Minister, together with the Prime Minister’s statements on his 1Malaysia blog dated 7 August 2012 and 4 April 2013, are tantamount to an express recognition by the government that the Sedition Act 1948 is an obsolete and antiquated law that is no longer suitable, relevant or consonant with the times.

(11) However, various events thereafter have given cause for grave concerns over the commitment made by the government as to its pledge to repeal the Sedition Act 1948:

(a) The recent statements by several Ministers and the Deputy Prime Minister² that appear to contradict the said pledge made by the Prime Minister on behalf of the government and undermines the Prime Minister’s reforms for a more progressive, moderate and balanced Malaysia; and

(b) The continued use of and the recent escalation in investigations, arrests and prosecutions pursuant to the Sedition Act 1948.

(12) The Sedition Act 1948 has continued to be used against many Malaysians ranging from students and academics to civil society activists, journalists and politicians. The individuals who have since 2013 faced the brunt of this repugnant and draconian law are as listed in APPENDIX A.

(13) The authorities have also resorted to the Sedition Act 1948 to investigate the persons listed in APPENDIX B.

(14) The charges against Associate Professor Dr Azmi Sharom (a law lecturer) and N. Surendran (a lawyer and Member of Parliament), and the investigation against Susan Loone (a journalist with an online news portal), are examples of unwarranted and blatant attacks on academic freedom, freedom of speech and expression, and freedom of the press, respectively.

(15) The continued resort to the Sedition Act 1948 by the authorities is a volte-face and a direct contradiction of the explicit promise of the Prime Minister to repeal the Act, and raises serious questions over the government’s sincerity in pursuing transformation through legislative reforms.

(16) The Sedition Act 1948 is viewed as being abused by the authorities, for instance, for apparent selective non-prosecution, such as listed in APPENDIX C.

(17) The Malaysian Bar does not advocate the use of the Sedition Act 1948, but nevertheless abhors the apparent discrepancies in treatment and selective prosecution by the authorities for purported offences under the Act.

(18) Although the Prime Minister had stated on 11 July 2012, and the Deputy Prime Minister had been reported on 13 July 2012 to have stated, that it is a misconception that the Sedition Act is used as a governmental tool against dissenting views and/or against only certain individuals, it would appear that other individuals are immune or insulated from prosecution under the Act.  This lends weight to the perception that the Sedition Act 1948 is used as a political tool or weapon dressed up as legislation.

(19) The use or abuse of the Sedition Act 1948, or other laws, feeds the view that there is an unhealthy symbiotic relationship between the police and the government. Other instances lend further to this perception or view, for instance, the use of another archaic law, namely, criminal defamation on Dato’ Seri Hj Mohammad Nizar Jamaluddin, the mass arrest by the police of members of the Pasukan Peronda Sukarela immediately after they completed their participation in the Penang State National Day parade, and the Inspector General of Police’s threat to investigate and possibly charge people who allegedly disrespected him on Twitter.

(20) 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 of the Act gives rise to a reliance on its draconian provisions as a knee-jerk reaction to expressions of purportedly sensitive issues and dissenting views.

(21) In clamping down on views, discourse and expression, and restricting democratic space, the Sedition Act 1948 unfortunately has the effect of pandering to and encouraging extremist elements, and foments disunity and disharmony.

(22) The Sedition Act 1948 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.

(23) The Malaysian Bar does not advocate nor abide by rudeness, insults and disrespect for ethnicity, religion and the Rulers.  Such conduct is unwarranted, offensive and abhorrent.  Nevertheless, the Malaysian Bar does not advocate the criminalisation of such behaviour to be justified.  True respect and goodwill cannot be attained by compulsion and penal sanctions.

(24) In concordance with this, the proposed National Harmony Act that is being considered by the government should not seek to recast nor to duplicate substantively the provisions of the Sedition Act 1948.

(25) The proposed new legislation should not seek to criminalise thought, speech and expression, and should instead provide a framework that recognises and encourages interaction, discourse, debate and learning.

(26) In the event there are to be any measure of criminal penalties, these must be limited and the scope of the new offence must be narrowly defined and confined, and the threshold for breach must be set much higher.  Only threats of or incitement to, and actual ethnic or religious violence to persons or property, or hatred for the Rulers, should be criminalised, and the element of intention must be present.

(27) The Malaysian Bar takes note of Article 10(1)(a) of the Federal Constitution providing for the freedom of speech and expression.  Inherent in this right is the right to the freedom of information. The provisions in Article 10(2)(a) and (4) providing for the possibility of legislation by Parliament to impose restrictions on the rights conferred in Article 10(1)(a) are enabling in nature, and do not prevent the repeal of the Sedition Act 1948 or require any replacement Act to contain such restrictions.

(28) The Malaysian Bar welcomes the statement by the Attorney General dated 9 September 2014 that his Chambers will take into consideration issues or concerns that have been raised with regard to the decision to prosecute cases, and that his Chambers will thus be reviewing the charges against Associate Professor Dr Azmi Sharom and other cases being prosecuted under the Sedition Act 1948.

THEREFORE, it is hereby resolved that:

(A) The Malaysian Bar calls upon the Malaysian Government 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.

(B) Whilst not advocating rudeness, insults and disrespectfulness, the Malaysian Bar calls upon the Malaysian Government to uphold the primacy of the right to and freedom of speech and expression, in particular:

(i) freedom of information; 

(ii) academic freedom;

(iii) journalistic freedom; and

(iv) freedom to scrutinise, discuss, debate or criticise; 

and to reject any criminalisation of the exercise of these fundamental rights.

(C) The Malaysian Bar condemns the use and continued use of the Sedition Act 1948, in particular its selective use, and the excessive sentences meted out by the Judiciary. 

(D) The Malaysian Bar calls upon the Malaysian Government to abide by its pledge to repeal the Sedition Act 1948, and to forthwith repeal the Sedition Act 1948.

(E) The Malaysian Bar calls on the Attorney General to forthwith withdraw all pending charges, cases and appeals, and to concede to all pending appeals, under the Sedition Act 1948 in the courts of Malaysia; and calls upon the Judiciary to prevent the systematic abuse of the Sedition Act 1948, to uphold the rule of law and the rights of all to freedom of speech and expression.

(F) The Malaysian Bar calls upon the Malaysian Government to forthwith impose a moratorium on the use of the Sedition Act 1948 pending its repeal, and for the police to cease all investigations pursuant to the Sedition Act 1948.

(G) The Malaysian Bar calls on the Malaysian Government to ensure that the proposed National Harmony Act, or any replacement Act by whatever name for the Sedition Act 1948, is not a recast of the Sedition Act 1948.

(H) The Malaysian Bar mandates the Bar Council to immediately organise a peaceful protest in the form of a walk and to take any and all such further action as it deems appropriate or necessary in order to advance and promote the matters herein and to uphold the principles of the Malaysian Bar.

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¹ “Repeal of Sedition Act proof govt not just empty talk — Muhyiddin”, The Borneo Post, 13 July 2012.

² (a) “Putrajaya never promised to repeal Sedition Act, says Shahidan”, The Malaysian Insider, 5 September 2014; (b) “Maintain Sedition Act To Preserve Peace — Ismail Sabri”, Bernama, 8 September 2014; (c) “Sedition investigations will continue as long as there are reports, says Zahid”, The Malaysian Insider, 11 September 2014; (d) “No final decision yet on Sedition Act”, The Star, 7 September 2014.

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APPENDIX A

(a) PAS Subang Youth Council deputy head, Wan Ji Wan Hussin was charged under Section 4(1)(c) of the Sedition Act 1948 on 10 September 2014 for his remarks on Facebook on 5 November 2012 that were allegedly insulting of the Ruler.

(b) Ali Abdul Jalil, a social activist was charged for three offences on 8 September 2014 under Section 4(1)(c) of Sedition Act 1948 for his remarks that were allegedly insulting of the Ruler.

(c) Activist Muhammad Safwan Anang was found guilty under Section 4(1)(b) of the Sedition Act 1948 on 5 September 2014 for uttering seditious words aimed at urging the public to change the government in a speech at a May 13 forum last year.

(d) Member of State Reform Party David Orok was charged under Section 4(1)(c) of the Sedition Act 1948 on 3 September 2014 for posting on Facebook remarks allegedly insulting Prophet Muhammad and Islam.

(e) UM law lecturer Azmi Sharom was charged under Section 4(1)(b) and Section 4(1)(c) of the Sedition Act 1948 on 2 September 2014 for expressing his views regarding the appointment of a Selangor Menteri Besar with reference to the “Perak Constitutional crisis”.

(f) Seri Delima assemblyperson R.S.N. Rayer was charged under Section 4(1)(b) of the Sedition Act 1948 on 27 August 2014 for his “celaka celaka Umno” remark on 20 May 2014 during the Penang State Assembly sitting.

(g) Shah Alam Member of Parliament Khalid Abdul Samad was charged under Section 4(1)(b) of the Sedition Act 1948 on 26 August 2014 for his remarks regarding the executive powers of the Selangor Islamic Religious Council.

(h) N. Surendran was charged under Section 4(1)(c) of Sedition Act 1948 on 19 August 2014 for alleging that Datuk Seri Anwar Ibrahim’s Sodomy II charge was a political conspiracy involving Prime Minister Datuk Seri Najib Razak and subsequently, he was charged under the same Section on 27 August 2014 for releasing an allegedly seditious press statement titled “Court of Appeal’s Fitnah 2 written judgement is flawed, defensive and insupportable”.

(i) ISMA President Abdullah Zaik Abd Rahman was charged under Section 4(1)(b) of Sedition Act 1948, and the alternative charge under Section 4(1)(c) of the same Act, on 19 June 2014 for publishing allegedly seditious statements in an article titled “The arrival of the Chinese with the British colonialists was a form of intrusion” on the ISMA website.

(j) J. Gopinath was charged under Section 4(1)(c) of the Sedition Act 1948 on 19 June 2014 for an Facebook posting allegedly insulting of Islam and Prophet Muhammad.

(k) Hidayat Mohamed was charged under Section 4(1)(c) of the Sedition Act 1948 on 19 June 2014 for his comments on Facebook allegedly insulting of the Thaipusam procession at Batu Caves.

(l) Chow Mun Fai was charged under Section 4(1)(c) of the Sedition Act 1948 on 12 June 2014 for making remarks allegedly disparaging of Islam and Prophet Muhammad.  He pleaded guilty to the alternate charge under Section 233(1)(a) of the Communications and Multimedia Act 1998.

(m) Seputeh Member of Parliament, Teresa Kok, was charged under Section 4(1)(b) of the Sedition Act 1948 on 6 May 2014 for publishing an allegedly seditious Chinese New Year video on YouTube.

(n) The late Karpal Singh was found guilty of uttering seditious words against the Ruler and convicted on 21 February 2014 and fined RM4,000 by the Kuala Lumpur High Court.

(o) Vivian Lee and Alvin Tan were charged under Section 4(1)(c) of the Sedition Act 1948 on 19 July 2013 for posting on their Facebook page allegedly seditious material.

(p) Hindraf’s P. Uthayakumar was charged under section 4(1)(a) of the Sedition Act 1948 for writing an allegedly seditious letter in 2007 to the then-British Prime Minister, Gordon Brown.  He was convicted and sentenced to two years and six months imprisonment on 5 June 2013.

(q) Student activist Adam Adli was charged under Section 4(1)(b) of the Sedition Act 1948 on 23 May 2013 for allegedly attempting to topple the government through street protests.

(r) Parti Keadilan Rakyat Vice President Tian Chua, activist Haris Ibrahim, student Muhammad Safwan Anang, Hishamuddin Rais and PAS’s Tamrin Ghafar were charged under Section 4(1)(b) of the Sedition Act 1948 on 29 May 2013 for allegedly uttering seditious words at a public forum.  Muhammad Safwan Anang was found guilty of sedition on 5 September 2014 and sentenced to 10 months’ imprisonment.

(s) Parti Keadilan Rakyat Vice President, Tian Chua, was charged under Section 4(1)(b) of the Sedition Act 1948 on 14 March 2013 for allegedly saying that the Lahad Datu incident was an UMNO conspiracy to frighten the people.

(t) Sugumaran Periasamy was charged on 22 August 2014 for a Twitter posting made in 2011.

APPENDIX B

(a) Malaysiakini journalist, Susan Loone was investigated on 4 September 2014 over her article on an interview with Penang state exco Phee Boon Poh and the mass arrests of the Pasukan Peronda Sukarela (“PPS”) on Merdeka day.

(b) Viktor Wong and Nasrul Omar were both investigated on 1 September 2014 under the Sedition Act 1948 and the Section 233 of the Communications and Multimedia Act 1998 for allegedly posting insulting remarks against the Royal Malaysian Police.

(c) Pandan MP Rafizi Ramli was investigated for:

(i) alleged sedition for disclosing a letter from a minister addressed to Bank Rakyat, in which the latter had demanded preferential treatment from the bank for carpet trader Deepak Jaikishan;

(ii) alleged sedition in March 2014 over remarks he made against right-wing groups. The groups had threatened to protest outside churches against the Christians’ use of the word "Allah" to refer to God; and

(iii) alleged sedition in May 2014  over a book he authored entitled “Reformasi 2.0: Fakta kes Anwar Ibrahim”.

(d) “Smallfield Benjamin” was investigated on 2 August 2014 for a post on FaceBook which is alleged to be insulting to Malays and Islam.

(e) Kelvin Yip was investigated on 2 August 2014 for allegedly complaining in a disrespectful manner about the “Azan” call to prayer.  

(f) Muslim preacher Ustaz Shahul Hamid Seeni Mohd was investigated on 31 July 2014 for a video clip on YouTube where Shahul is said to have insulted Indians and the Hindu religion.

(g) Sim Kwang Yung was investigated on 20 July 2014 for allegedly uttering seditious words in his Facebook account. 

(h) Phang Ah Ngang was investigated on 10 January 2014 for apparently asking a Muslim convert to remove her hijab if she wants to continue teaching at Sekolah Jenis Kebangsaan Cina (SJKC) Nan Ya in Teluk Sengat, Johor.

(i) Mohd Razlan Muhammad Rafii was investigated on 22 May 2014 when he allegedly threatened to burn down the DAP headquarters over the “UMNO celaka” remark made by DAP’s Seri Delima assemblyperson R.S.N. Rayer.

(j) National laureate Datuk Abdul A. Samad Said was investigated on 4 September 2013 for allegedly flying the Sang Saka Malaya flag.

(k) Melissa Gooi was investigated on 5 June 2013 for allegedly insulting the Yang di-Pertuan Agong.

(l) Ibrahim Ali was investigated on 23 January 2013 for allegedly calling Muslims to burn Malay-language bibles that contain the word “Allah” and other religious Arabic script.

(m) Ahmad Abdul Jalil was investigated on 2 November 2012 for a post in Facebook that allegedly insulted the Sultan of Johor.

(n) Ong Sing Yee was investigated on 6 September 2012 for allegedly stepping on a photo of Prime Minister Najib Tun Razak at Dataran Merdeka during the Merdeka eve celebration.

APPENDIX C

(a) Ibrahim Ali for allegedly inciting the burning of the Malay language bibles on 19 January 2013.

(b) Ridhuan Tee Abdullah and Zulkifli Noordin for allegedly disparaging the Hindu religion and insulting adherents of the religion on 18 February 2013 and 6 March 2013 respectively.

(c) The racial rhetoric of the Prime Minister in his allegation of a “Chinese tsunami” on 6 May 2013, followed by the Utusan Malaysia article entitled “Apa lagi orang Cina mahu?” on 7 May 2013.

(d) Datuk Mohd Noor Abdullah, a former Court of Appeal judge, for allegedly accusing a racial group of treason and warning of retribution by another racial group on 22 May 2013.

(e) The bloodletting of chickens in the streets of Kuala Lumpur allegedly by some members of Pertubuhan Permuafakatan Majlis Ayahanda Malaysia (Permas) and overt references to the racial riots known as “May 13” as an implied threat. 

(f) UMNO Penang public assemblies on 18 January 2014 at Seberang Jaya and 19 January at Bukit Mertajam where it is alleged some persons made menacing references to “May 13” with its implied threat of violence. 

(g) The persons involved in the burning of an effigy of a Christian priest in January 2014.

(h) Ridhuan Tee Abdullah for his allegedly seditious article published in Sinar Harian, page 40, titled “Kesabaran Umat Islam ada had” on 18 February 2014.

(i) The speakers at a seminar titled “Seminar Kalimah Allah dan Kristologi Nusantara” at Universiti Technology Mara on 6 May 2014.

(j) Tun Abdul Hamid Mohamad, the former Chief Justice, for allegedly stating on 6 September 2014 that only Malays truly fought for independence while the other races were consumed by self-interest.

(k) Kamaruddin Ambok for allegedly stating that non-bumiputras are allegedly “biadap dan kurang ajar” on 2 September 2014.

(l) Dato Hamidah Osman for allegedly stating, “Bila nampak seekor ular dan seorang India, pukul India dulu” on Twitter on 18 September 2012.

(m) Ridhuan Tee Abdullah was investigated on 18th February 2014 for allegedly posting a sensitive article published in Sinar Harian, page 40, titled “Kesabaran Umat Islam ada had”.