I MANAGED to take a close look at the full text of the bill on the Sedition (Amendment) Act 2015 and its explanatory statement over the weekend. (It is available online at http://mltic.my/criminal/legislation/bill-of-the-sedition-amendment-act-....)
The final text of the bill passed by the Dewan Rakyat in the wee hours of Friday last week is, of course, different in view of changes introduced by the Home Ministry during the debate on it in the house. There were other changes proposed by the opposition, but these were not successful.
After a marathon 12-hour debate, the bill was passed by a vote of 108 to 79 at 2.30am on that day.
Our present sedition law, Sedition Act 1948 (Act 15), contains 11 sections. This latest bill seeks to amend some of these provisions and insert new ones as well. The most important change affects Section 3(1) of Act 15, which defines “seditious tendency”, presently set out in detail in six separate paragraphs, (a) to (f).
The words “or against any Government” in paragraph (a) have now been deleted. Consequently, it is no longer an offence for any person to bring “into hatred or contempt or exciting disaffection” against the government. It is, however, still an offence to do so against any ruler.
The bill also inserts an illustration in Section 3, stating: “A excites a person or a group of persons to demand for the secession of State B from Malaysia. Such act is seditious.” The illustration is aimed at making clear that any action by any person demanding the secession of Sabah or Sarawak from Malaysia is deemed “seditious” and is, therefore, an offence under Act 15.
During the debate, this proposed illustration was dropped.
Another equally important amendment is the deletion of paragraph (c) of Section 3(1). With this, it is no longer an offence “to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or any State”.
However, since an amendment only operates in future (and not retrospectively), it does not affect criminal proceedings already in place. Thus, it has no effect on criminal charges against cartoonist Zunar (who tweeted on Feb 10 about “lackeys in black robes”) and against PKR vice-president Nurul Izzah Anwar (who spoke in Parliament about judges who had “sold their souls to the devil”).
It should, however, be remembered that while calling judges as “lackeys in black robes” or accusing them of having “sold their souls to the devil” will no longer be regarded as seditious and constitutes an offence under the amended Act 15, uttering them may still constitute contempt of court, which is entirely under a different set of laws.
Section 3(1) of Act 15 has also been amended by the addition of a new paragraph (ea). As a result, it is now an offence for any person “to promote feelings of ill will, hostility or hatred between persons or groups of persons on the ground of religion”.
The explanatory statement states that this is in line with the government’s intention to protect the sanctity of religions professed by the multi-religious society in Malaysia.
Section 4(1) of Act 15 has also been amended. The current penalty (a fine not exceeding RM5,000 or a prison term of three years, or both, for a first conviction and five years for a subsequent offence) has been replaced by a minimum penalty of three years imprisonment and a maximum penalty of seven years.
A new Section 4(1A) has been inserted, providing for a higher penalty for offences under the act of causing bodily injury or property damage. In such cases, there is a minimum penalty of five years imprisonment and a maximum penalty of 20 years imprisonment. At the committee stage of the debate, this five-year penalty has been changed to three years.
Two new provisions, Section 5A and Section 5B, have also been added. Section 5A states that if a person is charged with an offence under Subsection 4(1A) and there is a certificate in writing by the public prosecutor stating that it is not in the public interest to grant bail to the person charged, the person shall not be released on bail.
Section 5B empowers the court to prevent a person charged under Section 4 (and then released on bail) from leaving Malaysia. This includes ordering the person charged to surrender his travel documents. If the person does not own one, the court can order the Immigration Director-General not to issue any travel document to the person.
During the committee stage of the debate on the bill, the proposed Section 5A was dropped. This means that the granting of bail is still left to the discretion of the court in any particular given case. However, Section 5B has been retained.
Apart from the above, there is also an amendment to Section 6 (relating to rules of evidence) and the insertion of a new Section 6A (which states that Sections 173A, 293 and 294 of the Criminal Procedure Code do not apply in respect of offences under the new Subsection 4(1A) of the act).
Section 10 is also amended to empower the court to order the removal of seditious publication made by electronic means, such as online publication.
A new Section 10A has also been inserted to enable the court to issue an order regarding seditious publication made by electronic means by an unidentified person.
Among the bill’s most vocal critics is former law minister Datuk Zaid Ibrahim, who was quoted as saying that Malaysia is now like Russia under Stalin.
“No other country in the world puts religion in the public sphere and makes it a central part of government policy. The noose is getting tighter. We are experiencing what the Russians endured when Stalin was in power. We might be looking at one of our own,” he had said.
An Institute of Journalists Malaysia spokesman had said the amendments to the Sedition Act “are open to abuse and misinterpretation”.
There has always been, and there will always be, strong opposition to the Sedition Act. The perception that the law (even as amended) will be open to abuse is unavoidable.
The Home Ministry’s task is to show that these criticisms are unfounded. Actions (now and in the future) speak better than words. It is going to be a difficult task, but not impossible. In some respect, the amendments (such as those affecting Section 3(1)) show a gentler face of the law.
Other amendments (such as the imposition of heavier penalties and the court order to remove seditious online publications) show its harsher side.
The writer formerly served the Attorney-General’s Chambers before he left for practice, the corporate sector and, then, the academia