PETALING JAYA: Lawmakers, lawyers, activists and policy makers are generally united in their opinion - it is time to repeal the 66-year old Sedition Act, and not replace it with a new one.
"If you want to keep peace and harmony, we already have the Penal Code, which also covers those who wish to overthrow the government through violent means. When you talk about people who wish to incite harm on others on the basis of race or religion, the Penal Code also covers that," said constitutional lawyer Syahredzan Johan.
Under Section 121 of the Penal Code, anyone who wages war against the Yang di-Pertuan Agong, a Ruler or the Yang di-Pertua Negeri of a state can face a death sentence or one of life imprisonment, while under Section 505 of the Penal Code, anyone who incites people to commit crimes against another group or class of people faces a maximum two year jail term, fine or both.
"When you talk about those who try to excite disaffection against the administration of justice, the courts can call people up for contempt. So the whole argument that the Sedition Act is needed to protect national harmony is wrong because harmony doesn't come from penalizing and punishing people. Harmony comes through tolerance and understanding, not through pain of punishment," said Syahredzan.
He added that if some laws were needed to preserve public order, any replacement law should strike a balance between protecting public order and upholding freedom of speech.
The Sedition Act 1948 states that a statement would be deemed seditious if it has a tendency to cause disaffection against any Ruler or the government, as laid down in Section 3(1)(a) of the Act.
Section 3 defines what constitutes words or actions with a "seditious tendency", an essential element of an offence of sedition, which is defined in Sections 4(1)(b) and 4 (1)(c) of the Act. Among other points, words or acts with "seditious tendencies" include those which could create disaffection against the administration of justice as defined under Section 3(1)(c).
Section 3(1)(e) also defines words or acts as having seditious tendencies if they can promote feelings of ill-will and hostility between different races or classes of the population of Malaysia.
With regards to offences, Sections 4(1)(b) and 4 (1)(c) state that anyone commits sedition if they utter any seditious words, or prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication, with "seditious" being defined as anything with a "seditious tendency".
Similar views were shared by both lawyer Fadiah Nadwa Fikri and Bersih 2.0 chairperson Maria Chin Abdullah as they both said the Sedition Act should be repealed, adding that legislation was not the way to create interracial harmony in Malaysia.
"We should allow a space to exist for us to talk about race and religion to foster harmony and love. You cannot legislate love. You have to give people the space to express themselves and protect their rights under the Constitution to do so," said Fadiah, who also said the Penal Code is sufficient to cover offences of racial incitement.
UndiMsia community mover Azira Aziz, when approached said that while there is no need to replace legislation like the Sedition Act, if one was planned, it should be narrowly drafted to act on hate speech.
"That is the only kind of discourse that should be condemned. However constructive criticism of the government is needed for any democratic government to improve and address core issues. The public has the right to tell the government what is not working, it is a basic human right," said Azira.
This view was also shared by lawmakers Kuala Terengganu MP Datuk Raja Kamarul Bahrin Shah Raja Ahmad and Lembah Pantai MP Nurul Izzah Anwar.
"There are enough laws in the country to cover any eventuality, to take care of hate speech and incitement to interracial violence . So there is no need to replace the Sedition Act once it is repealed," said Raja Kamarul.
Nurul Izzah added that sufficient provisions existed in the Penal Code to protect not only the royalty but also the harmonious relationship between the different communities in Malaysia.
"We must remove this Act which is a legacy of the colonial era. You don't need a replacement Act," said Nurul Izzah.
Meanwhile, National Unity Consultative Council panel member Datuk Saifuddin Abdullah said that while the Sedition Act should be repealed and if need be, replaced with the planned National Harmony Act which is currently being drafted, the planned Act would allow for criticism of the government and judiciary, and would uphold freedom of speech.
"The main difference between the two Acts is that while under the Sedition Act you can be found guilty without any proof of intention or harm, this is not so under the National Harmony Act. We are introducing the elements of intention and harm - and there are only three things you cannot incite hatred against. Race, religion and the Rulers," said Saifuddin.
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