Sometimes Sorry is Irrelevant

Pondering why the Attorney General Chambers of 1Malaysia (1AG) has not yet charged Datuk Nasir Safar under the Sedition Act 1948 and its relevance to the Federal Court decision of Lim Guan Eng v PP [2000] 2 CLJ 541.

No less than the special officer for our 1PM (1Prime Minister) of 1Malaysia (that’s right people, it’s not Malaysia anymore, you’re in 1Malaysia now), had the gall to remark “Indians came to Malaysia as beggars and Chinese especially the women came to sell their bodies“, in public, at an event ironically titled, ‘Rapat 1 Malaysia‘ held in Malacca on 2 February 2010. This, of course, during the 1PM’s no doubt expensive marketing campaign that is 1Malaysia, which personally is humourous, because the use of the number 1 implies that there is also a 2 and 3 then 4 and so forth. So we are actually being sold a 1Malaysia whilst we actually remain stuck around the 4Malaysia mark.

So now Datuk Safir Nasar has purportedly apologised for his remarks.

Before we consider that, it needs no pointing out that for 1PM to have something like a 1RacialBigotz as his special officer begs the question of firstly how racial bigots like him could work in such high office is startling. Secondly, that he has the audacity to declare his closely held views so nakedly at a public event is disturbing. You can bet his mouths off far more offensive remarks in private. Thirdly, you cannot help but wonder how many more of Datuk Nasir Safar’s ilk are there working in 1PM’s 1Office. This instance should provide sufficient reason for a witch hunt to be carried out in his 1Office of such rebels to the 1Malaysia marketing campaign.

Now let’s consider what he said from a legal perspective. The most appropriate act would be the Sedition Act 1948. We can start with section 3(1) of the Act. This provision defines what a ‘seditious tendency’ is. The relevant parts are as follows:

3. Seditious tendency.

(1) A “seditious tendency” is a tendency –

…

(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State;

(e) to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia; or

Does the remark “Indians came to Malaysia as beggars and Chinese especially the women came to sell their bodies” satisfy that criteria? Of course, and you don’t need to be as clever as the Attorney General to think so.

Firstly, what he said is according to our own history books is completely untrue. What we were taught was that the British brought the Indians to work in the estates, as labour, and in security and the Chinese to work on the tin mines. Secondly, there was no necessity under any circumstance to make such an untrue and offensive remark. It is offensive because it is so blatantly untrue. Third and relatedly, that remark was specifically crafted to denigrate our Malaysian brothers and sisters racial heritage. It is not necessary to press how suitably those remarks fit the criteria of a ‘seditious tendency’. It also clearly does not fulfil the exceptions contained in section 3(2) of the Act.

Section 3(3) is of importance to what Datuk Safir Nasir said when he ‘apologized’. Let us listen to his magnanimous apology again:

“I would like to again openly apologise to all Malaysians for the remarks that are seen as racist. I really did not intend it that way..”

I don’t know what other way he could have intended it. As a compliment? As a friendly pat on the back? As a ‘Hey, you my brother forevah?’ As part of fostering closer and harmonious relations? By disparaging against other Malaysian’s racial heritage? Did he have in mind MCA (Malaysian Chinese Association) President Dato’ Sri Ong Tee Keat’s Chinese maternal lineage or MIC President Datuk Seri S. Samy Vellu’s Indian heritage when he made those remarks? In what way did Datuk Nasir Safar intend his words to be taken? If he thinks those very words had no racial element, then Datuk Nasir Safar is so racist to the extent he cannot even tell when he is being so. That statement is normal for someone like him and his company. He, of course, does not explain because there can be no other explanation. So is his intention of any relevance?

Let’s hear what section 3(3) of the Act has to say about it:

(3) For the purpose of proving the commission of any offence against this Act the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact the act had, or would, if done, have had, or the words, publication or thing had a seditious tendency.

So according to the law, whether you did not intend your remark to have a ‘seditious tendency’ or not, as famously declared once, is ‘irrelevant’. So what is the cost of uttering remarks that have a ‘seditious tendency’? For this we go to section 4 of the Act:

4. Offences.

(1) Any person who –

…

(b) utters any seditious words;

…

shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both, and, for a subsequent offence, to imprisonment for a term not exceeding five years; and any seditious publication found in the possession of the person or used in evidence at his trial shall be forfeited and may be destroyed or otherwise disposed of as the court directs.

Pretty costly for a few misguided words! Poor chap cannot hope to raise a plea of intoxication if he wanted to. He’s Muslim after all and good trustworthy Muslims never drink. But was his apology even sincere? Let’s take a harder look at it:

“I have clarified that I did not intend to make racist remarks or insult any races. But there those who feel otherwise and I have apologised for any offence.”

That’s your typical UMNO apology-while-insulting-you-in-the-face-again-apology. Like sorry ‘cos you’re stupid ‘cos you didn’t understand that I did not intend to insult any races when I said, ‘Indians came to Malaysia as beggars and Chinese especially the women came to sell their bodies‘. But if you feel I did then okay lah I apologise lah. but I didn’t intend it. Not at all. Sorry okay? Sorry! I said it already, so drop it!

Datuk Nasir Safar thinks by apologising for ‘any offences’, I presume he is also referring to the Sedition Act 1948, he is now absolved. I don’t think so. I saw some readers on Malaysian Insider state they don’t think so. In fact, if you ask just about any Indian or Chinese, you can bet they don’t think so as well.

But who gives a damn what any of us thinks?

The law states that is is not so. It is not open to debate.

If you want to see just how low the bar has been set as to what amounts to ‘a seditious tendency’, read Lim Guan Eng v PP [2000] 2 CLJ 541 (Federal Court bench of Eusoff Chin CJ, Wan Adnan Ismail CJ (Malaya) and Zakaria Yatim FCJ (of Ayer Molek fame) but just to give you a flavour of what Lim Guan Eng was convicted for, here is the reproduction of the second charge against him in that case:

Bahawa kamu pada 19.1.1995 jam lebih kurang 9.40 malam, di Dewan Permai Sari, Tingkat Tiga, di Hotel Emperor, Jalan Munshi Abdullah, di dalam Daerah Melaka Tengah, dalam Negeri Melaka, telah memberikan ucapan dalam ceramah dengan menyebut kata-kata yang menghasut iaitu:

(a) Bahawa kamu menyatakan yang kamu tidak puas hati dengan Undang- Undang di Malaysia kerana ‘double-standard’ yang menyebabkan kes rogol yang melibatkan Tan Sri Rahim Thamby Chik tidak dihadapkan ke Mahkamah dan Peguam Negara telah menyatakan Tan Sri Rahim Thamby Chik tidak terlibat dalam kes rogol perempuan bawah umur.

(b) Bahawa kamu menyatakan yang kamu tidak puashati Mahkamah memberikan keputusan supaya gadis yang terlibat dalam kes rogol itu ditahan selama tiga tahun.

Sebenarnya Tan Sri Rahim Thamby Chik patut dimasukkan ke Penjara dan sebaliknya orang yang melanggar Undang- Undang dibebaskan

Yang mempunyai kecenderungan bagi mendatangkan benci atau penghinaan atau bagi membangkitkan perasaan tidak suka terhadap pentadbiran keadilan dalam Malaysia dan oleh yang demikian, kamu telah melakukan satu kesalahan di bawah seksyen 4(1)(b) Akta Hasutan, 1948 (Akta 15) dan boleh dihukum di bawah seksyen 4(1) Akta yang sama.

(The charge of which Lim Guan Eng was convicted of under section 4(1)(b) of the Act was for complaining that double standards were being applied to the allegation of rape against Tan Sri Rahim Thamby Chik when the Attorney General declared he was not involved and pressed no charges. He was also convicted for complaining that the Court was wrong to jail the underaged complaining (at the time) for 3 years instead and adding that Tan Sri Rahim should have been jailed instead of her.)

Now let’s also have a listen to how Lim Guan Eng was sentenced. The Court of Appeal in that decision enhanced his sentence on appeal that was meted out by the High Court. This is what the Court of Appeal said in justifying it:

In our judgment the imposition of a fine on the appellant, having regard to all the circumstances of the case, is a mere tap on the wrist because it plainly lacks any deterrent effect. Taking into account all the circumstances of the case, including the seriousness of the case, including the seriousness of the offence and the requirement of deterrence, and after striking a balance between the interests of the public and the interests of the appellant, we came to the conclusion that a term of eighteen months imprisonment would be the appropriate sentence to be passed upon the appellant.

Note that in mitigation his counsel submitted that this was Lim Guan Eng’s first offences and he still got the deterrent sentence even though he was not a repeat offender. But they are judges and of course wise and knew what they were doing. We are mere lawyers and generally far stupider than judges. The judges no doubt knew that Lim Guan Eng would do so because he was in the Opposition. Needless to say the Federal Court approved the suitableness of the sentence.

Now the RM 5,000.00 and/or 3 month’s imprisonment question is what is 1AG going to do about it?

What investigation does he need to carry out? His remarks were unanimously carried out in the press.

His case is virtually proven and he would have no trouble whatsoever finding corroboration as demanded under section 6(1) of the Act. It’s probably all on the tape recorders and video, if it was filmed. This is one of those almost too damn easy cases. Do it with his eyes closed sort of thing. If, of course, you knew what you were doing.

Perhaps, just perhaps, it’s just not all about the law or the facts.

But then what do I know?

I’m not the Attorney General.