When Montesquieu Said Sedition Act Is Unlawful
The unexpected announcement made by Prime Minister shortly before the recent general election to execute a significant transformation in Malaysian legal system is surely still fresh in people’s memories. Among the reforms promised was to repeal the two controversial laws- Sedition Act 1948 and Internal Security Act 1960 (ISA) and both will be replaced respectively by National Harmony Act and Security Offences (Special Measures) Act.
Certainly, such unexpected and drastic legislative reforms to increase civil liberties were applauded by various stakeholders and human rights activists including the Bar Council. It was a welcoming remark as the 67-year-old Sedition Act was facing difficulties to find its place in the current society.
Referring back to the history of Malaya, in 1948, Sedition Ordinance was enforced by British administration as a tool for political sanction towards revolutionaries and combatting communist activities. In June 1948 for instance, when the British had brought emergency measures into law, several Hizbul Muslimin political party leaders were arrested under the law. Through the totalitarian rule, the non-militant movement led by Abu Bakar Al-Baqir centred at Maahad Ehya’ A-Syarif Gunung Semanggol, Perak later ceased.
Law Does Not Represent The Aspiration Of People
Unfortunately, the law remained in force in our legislation after independence as it was allowed by Article 162 of Federal Constitution.Since it was not passed by the Parliament, the law itself did not reflect the spirit to protect the basic needs and interests of the people. The matter was essentially contrary to the principle of liberty in Montesquieu’s The Spirit Of Law which outlined the signification of the word liberty as “for the privilege of being governed by a native of their own country, or by their own laws”. (Book XI Chap. II) On 26th of November 2014, the Prime Minister did not follow through with his promise but announced to ‘strengthen’ the law instead.
Though the latest amendment bill of the act was passed by Parliament on 10th of April 2015, it was passed after the 13th General Election where people were convinced by election promise to repeal the act. In other words, people who generally turned out and voted for the ruling party consisting of 133 Members of Parliament had done so believing that they would honour their promise to repeal the act.
Ambiguous Law Is Not Law
Furthermore, the current problem of ambiguity and uncertainty with regards to legal definition of “sedition” reflects the failure of the legislation to protect or even to comprehend the interests of the people, referring to “Taman Medan cross protest” as an explicit example where two main figures in our legal enforcement institution vehemently disagreed with one another.
Inspector-General of Police (IGP) Khalid Abu Bakar said that the protest against the church was not seditious and no charge would be taken against the protestors but Home Minister, Datuk Seri Ahmad Zahid Hamidi unequivocally took a different position, interpreting the protest as seditious.
So what does sedition mean in our country? The incident has uncovered a fundamental difference of understanding about sedition and now people are left scratching their heads over the definition of such crimes. By looking at previous cases, the law still fails to draw the boundaries between what remarks or publication that is tantamount to seditious tendency and what is not. In Public Prosecutor v Mark Koding  2 MLJ 120 the accused, then a Member of Parliament, was charged with sedition for a speech he made in the Parliament where he questioned the policy of government in allowing Chinese and Tamil schools to continue in this country.
He advocated the closure of Chinese and Tamil schools and suggested that such closure contravened Article 152 of the Federal Constitution. Mark Koding was later convicted for this offence after a full trial. Nevertheless, when several politicians later championed a similar idea, the Attorney General failed to take action without providing a sound reason.
How Could Citizens Protect Themselves From Punishment By Not Committing Crimes?
With the law here to stay, certain stakeholders still give the government the benefit of the doubt to amend the law to improvise the provisions touching on legal definition and burden of proof. But the amendment bill recently passed appears to increase punishments and transgress the rights of the accused.
In principle, the law which is vague is unlawful. Montesquieu in his The Spirit Of Law (Book XXIX Chap. 16) highlighted that: “When the law has once fixed the idea of things, it should never return to vague expressions…..The laws ought not to be subtle; they are designed for people of common understanding, not as an art of logic, but as the plain reason of a father of a family.”
He further wrote that: “The style should also be plain and simple, a direct expression being better understood than an indirect one. There is no majesty at all in the laws of the lower empire; princes are made to speak like rhetoricians. When the style of laws is inflated, they are looked upon only as a work of parade and ostentation.”
Instead of substituting the current penalty for offences with a minimum penalty of three years of imprisonment and to do away with the penalty of fine, the government must construct a comprehensive guideline to define the seditious offence or at least draw the line to make it as easy as possible for citizens to protect themselves from puni
shment by not committing crimes.
Executive And Judiciary Power United In The Same Person?
The previous cases have shown that only the executive body (Attorneys-General and police) have rights to interpret that ambiguous definition of the offence. It has now become public anxiety when the executive power is clearly replacing the power given to judiciary to determine the wrongdoings of citizens.
They make a pre-judgment before the case is even brought before the court- if the citizen is opined as guilty, then he or she will be charged and vice versa. The scenario is totally against the principle of liberty and democracy where Montesquieu firmly wrote that “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” (Book XI Chap. II)
Fail To Govern Plural Society?
The main reason given by Prime Minister for the law to stay is to keep Malaysia peaceful and harmonious. It was awkward to believe that more than fifty years after independence, Malaysia is still dependent on the 67-year-old law to govern a multiracial and multi-religious society. The reason gives a clear message of the failure on the part of the government to harmonise the differences of a plural society. Indeed, ever since the Sedition Act was implemented, the law did not in any way accommodate our multiracial and multi-religious citizens to understand one another better and to foster unity.
Quoting nineteenth-century legal theorist John Austin on the definition of law, he defined the law as “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” Rationally, by looking at the Sedition Act, what can be expected if the law that ought to be the guidance still needs to be guided? Definitely, the lacunas above reflect the failure of the law to meet the needs and interests of the people.
Written By: MUHAMMAD FAISAL BIN ABDUL AZIZ
SECRETARY GENERAL MUSLIM YOUTH MOVEMENT MALAYSIA (ABIM)