kheru2006 (kheru2006) wrote,

Seditious, injurious comments

IN relation to seditious and injurious comments, first and foremost, it must be appreciated that we all have different perceptions of things. In other words, what is in reality may not be the way we see it. A lot depends on our background, upbringing, culture, religion and other factors. Furthermore, social precepts evolve with time, and things which were considered treason or seditious in the 1900s are, today, considered acceptable practice.

For example, Mat Salleh of Sabah was considered a pirate in the 18th century by the British, but today, he is considered a hero. Another example is questioning how the government carries out its policies. Today, this is considered part of the democratic process. But, those who resort to debating issues in the public fora, including social media, should also be aware of the need to exercise their freedom of speech and expression responsibly, in case they overstep established boundaries and end up committing offences.

For example, Mat Salleh of Sabah was considered a pirate in the 18th century by the British, but today, he is considered a hero.

Nothing is wholly free or without restraint. A distinction must be drawn between campaigns that invite mature discussion and debate, and campaigns that affect national sovereignty, national security and public order.

As His Lordship the late Raja Azlan Shah J (as he then was) stated in PP vs Ooi Kee Saik (1971) 2 MLJ 108, quoting the following passage from A.K. Gopalan vs State of Madras AIR (1950) SC 27 with approval:

“There cannot be anything as absolute or uncontrolled liberty wholly free from restraint; for that would lead to anarchy and disorder…”

In other words, there must be a limit to everything. Nothing is wholly free or without restraint. In this regard, a distinction must be drawn between campaigns that are conducted in a civil manner, and which invite mature discussion and debate on issues of concern, and campaigns that affect national sovereignty, national security and public order. The latter category would necessarily encompass attacks against each other’s religion, race and culture, the institution of the constitutional rulers and the Yang di-Pertuan Agong, as well as calls for the secession of Sabah and Sarawak from the Federation of Malaysia.

The point that must be recognised is that no government can stop its people from discussing matters that affect their constitutional and legal rights. That goes for the accountability and transparency of any elected government in any country in the world.

It must also be recognised that measures should be taken to respect the ideals established by the Federal Constitution — in letter and in spirit — whether they are concerning religion, citizenship of non-Malays, the special rights of the Malay/Bumiputera and Orang Asal, the special position and privileges of the rulers, or the rights conferred on Sabah and Sarawak.

All these rights must be respected and implemented, unless and until the Federal Constitution is amended by a vote or referendum of the people. This is because all these are elements of the “social contract” and constitute the basic pillars of the Federal Constitution and Malaysia.

Datuk Ibrahim Ali’s case

It should be recognised that statements, such as those made by Ibrahim, and actions, such as those of the church group that precipitated that statement, do not contribute to the enhancement of social order and national unity.

In the Ibrahim case, the Attorney-General’s Chambers (A-G’s Chambers) has explained the facts in the Chambers Media Statement, dated Oct 27. The police report that was made on Jan 21 last year against Ibrahim alleged that he had called on Muslims to seize and burn copies of “Al-Kitab”, which contained the word “Allah” or other Arabic words, and also contained writing in jawi, during a press conference after the Perkasa Convention in UiTM Penang. This supposed instigation was reproduced in the Free Malaysia Today portal, dated Jan 19 last year.

To understand whether the statement was seditious or not, we must look at the full statement he made, as well as the context in which it was made.

As has also been explained, Ibrahim made his statement in reaction to a mass media report regarding a police report that had been lodged about the distribution of copies of these Bibles to students, including Muslim students, in front of SMK Jelutong on Jan 17 last year.

Both police reports and the allegations made were investigated by the police. Decisions were then made, based on the evidence submitted. In the case of the persons who were distributing the Bibles, they were not prosecuted because there was no proof that they intended to give those Bibles only to Muslim students.

Based on the facts, they really did not know the boys concerned were Muslims. Therefore, it was decided not to prosecute them. But no one has questioned this non-prosecution, although clearly, the Bibles were distributed by these persons outside the school. Everyone accepted that the elements of Section 298A of the Penal Code and Section 5 of the Syariah Criminal Offences (Penang) Enactment 1996 were not fulfilled.

Moving on to the non-prosecution of Ibrahim’s actions, perhaps, our clarification in the media statement should have been made clearer.

The A-G’s Chambers agrees with the comments made by certain parties that an offence under Section 4 of the Sedition Act 1948 is not dependent on intention. The action of making a statement with a seditious tendency (as that term is defined in the Act) is enough. We are well aware of decisions, such as that in Public Prosecutor vs Ooi Kee Saik & Ors (1971) 2 MLJ 108, where His Lordship Raja Azlan Shah J stressed this very point.

The oft-cited dicta of His Lordship Raja Azlan Shah J states that “what the prosecution has to prove and all that the prosecution has to prove is that the words complained of… were spoken by (the) accused… Once that is proved, the accused will be conclusively presumed to have intended the natural consequences of his verbal acts and it is, therefore, sufficient if his words have a tendency to produce any of the consequences stated in Section 3(1) of the Act...”

However, it is also equally well established by case authorities that the alleged actus reus (action) element must be examined in its full context. In Ooi Kee Saik, His Lordship Raja Azlan Shah J highlighted that “the dividing line between the lawful criticism of government and sedition is this — if upon reading the impugned speech as a whole, the court finds that it was intended to be a criticism of government policy or administration, with a view to obtain its change or reform, the speech is safe.

“But, if the court comes to the conclusion that the speech, used naturally, clearly and indubitably, has the tendency of stirring up hatred, contempt or disaffection against the government, then it is caught within the ban of paragraph (a) of Section 3(1) of the Act…”

Applying this legal reasoning to Section 3(1) of the Sedition Act 1948, an offence would only be committed if the conclusion of the reasonable man was that the words or language had been used naturally, clearly and indubitably, and had the tendency to promote feelings of ill will and hostility between the different races or classes of the population of Malaysia.

However, if upon reading the impugned speech as a whole, it is clear that it was intended to be an appeal to stop the propagation of a religious doctrine or belief among persons professing the religion of Islam, as provided under Article 11(4) of the Federal Constitution, and not merely a call to burn Bibles, can the attorney-general come to any conclusion other than that the speech would be considered “safe” and non-seditious in nature?

That is the effect if we do not read the authorities in full. At the end of the day, even if it is said that it is for the court to decide, the attorney-general still has to decide whether to charge a person. This must be done based on the evidence after a complete investigation. If we go merely on what is being demanded in the media, nine-10ths of Malaysians would be charged first and we, then, leave it to the court to decide. The first to be charged would be the politicians. Should people be charged merely on the basis that police reports have been made? That is not what the Federal Constitution intended in Article 145 in relation to the attorney-general’s prosecutorial discretion.

In Ibrahim’s case, a careful examination of his statement will show that he had very carefully qualified himself in several ways.

First, he expressly clarified that his intention was not to create religious strife by stating: “Ini bukan sentimen ataupun nak menimbulkan kekecohon agama tetapi ini mempertahankan kesucian agama Islam yang telah jelas dalam undang-undang.” With these words, how is it to be proved that his words, “naturally, clearly and indubitably... had the tendency to promote feelings of ill will and hostility”?

Second, he clarified that the offending item was not the Bible, generally, but only this particular edition of the Bible, because it was “dalam versi Bahasa Melayu (yang) ada kalimah Allah, ada tulisan ayat-ayat jawi” and“tulisan jawi yang boleh mengelirukan”. He never said to burn all Bibles. If he had said that, he would have been charged with sedition.

Third, he clarified at the outset that his statement was directed specifically at the group that had distributed these particular Bibles to the students, which included Malay students. It should also be clarified that when the A-G’s Chambers referred to the failure to satisfy the “intention” element, the A-G’s Chambers was referring specifically to the offence under Section 504 of the Penal Code and not Section 4 of the Sedition Act 1948.

That is the difference of Ibrahim’s case. If the case came before a court, all these factors would also need to be considered by the judges, too. We cannot run away from that fact. In relation to the suggestion by certain quarters that Ibrahim should be charged under Section 505 of the Penal Code, this necessarily refers to paragraphs (b) and (c) of Section 505, which state: “Whoever makes, publishes or circulates any statement, rumour or report — (b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the state or against public tranquility; (c) with intent to incite or which is likely to incite any class or community of persons to commit any offence against any other class or community of persons.”

But, Section 505 also provides the following exception: “Exception — it does not amount to an offence within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it without any such intent as aforesaid.”

Based on this, would it be wrong to threaten to take action against criminals? The answer is clearly “no”. If the people were distributing Bibles deliberately to Muslims, then their actions would be criminal. Therefore, how could Ibrahim be considered to have a committed a crime in that context? It should also be realised that with the “intent” requirement under Section 505, it would be more difficult to prove a case under Section 505 than the Sedition Act 1948.

Based on the facts of the case and for the reasons explained earlier, the intention element would not be satisfied for an offence under either Section 505(b) or Section 505(c). Further, if there were reasonable grounds for believing that there was an attempt to propagate a religious doctrine or belief among persons professing the religion of Islam contrary to Article 11(4) of the Federal Constitution, the actions would fall within the exception as well.

Challenges from corruption

At the 47th anniversary celebration of the Malaysian Anti-Corruption Commission on Oct 1, His Royal Highness Sultan Nazrin Muizzuddin Shah of Perak provided a stark reminder of the insidious threat that corruption posed to democracy, social order and national harmony. As Tunku Abdul Aziz Ibrahim stated in his recent article, corruption eroded public trust in government; it impoverished the nation; it retarded economic progress and social development; it created inefficiencies; and it distorted decision-making processes. It kills the very soul of the nation, and its values and value systems. It leaves in its wake millions of victims.

The Carnegie Endowment for International Peace report, “Corruption — The Unrecognised Threat to International Security” (in June), highlighted that systemic corruption had a large bearing on international security.

Systemic corruption, whether in the public or private sector, evokes indignation in populations, making it a factor in social unrest and insurgency. This includes the string of popular uprisings that have toppled governments, from Tunisia to Kyrgyzstan, and escalated the crisis in Ukraine. This has led to the current international concern of foreign fighters flocking to Syria and Iraq, supposedly to help overthrow the incumbent corrupt regimes. It has also inspired the rise of the Islamic State agenda in the Middle East.

At issue is not garden-variety corruption, but public-sector criminality and crony capitalist networks, where the country harbours endemic corruption that pervades the political system, or when the critical levers of government action are captured, resulting in a veritable repurposing of the state to the material benefit of a few elite networks.

In terms of security threats, the Carnegie report concluded that such high-level organised corruption underestimated the agency of ordinary people — their perceptions of corruption and the increasing tendency of populations to lash out violently against governing systems they can no longer tolerate. Further, according to the report, every country that harboured an extremist insurgency today suffered from kleptocratic governance. The motivational literature of those extremist movements is littered with references to corruption.

As mobile and electronic communications give citizens more access to information and each other, levels of outrage — and mobilisation — are likely to keep rising. In addition, the report stated that the loss of state legitimacy was a crucial factor in many crises. Although transnational criminal groups attract law enforcement attention, their nefarious activities do not violate public expectations.

Citizens have quite different presumptions of their governments. So, when governments systematically behave in criminal ways, their legitimacy founders. Profound disenchantment results, and the very fabric of society begins to fray, with unpredictable consequences. The report cited the example of Nairobi residents exchanging grim remarks about the “Shabab bribe” (double the normal rate) that allowed attackers from terrorist group al-Shabab to infiltrate the Westgate Mall in a siege in September last year that claimed more than 60 lives.

The Carnegie report also pointed out that corruption did not fuel these threats alone. It combines with other risk factors, such as ethnic, religious or linguistic rifts in a population, or severe economic disparities, to increase the likelihood of a security challenge.   Tommorow Part 6 — Challenges from economic and other disparities and inequalities.

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