Declan joins Pusat Rakyat LB’s army of forever interns and this is his first article for the most awesome blawg in this universe! Declan writes about Tian Chua’s sedition case, one of Pusat Rakyat LB’s strategic litigation case.
On 13 May 2013, a forum was held at the Kuala Lumpur and Selangor Chinese Assembly Hall by Solidariti Anak Muda Malaysia and Solidariti Mahasiswa Malaysia, YB Tian Chua gave a speech on poverty, corruption, racism and unity of different races. Towards the end of the speech, YB Tian Chua said:-
“Dan kita sebagai pemimpin wajib untuk dengar and wajib untuk ikut. Kalau rakyat sudah bersedia untuk bangkit, untuk turun ke jalan raya, setiap pemimpin baik kita Pakatan Rakyat atau sesiapa pun, ini kita harus ikut, ini bukan isu Pakatan menang atau Barisan menang. Ini adalah hak rakyat yang harus pertahankan…Ayuh, kita bangkit, bangkit, bangkit,bangkit lawan rasis, bangkit lawan rasuah, bangkit lawan kezaliman… ”
YB Tian Chua was charged under the Sedition Act 1948. The Public Prosecutor alleged that words uttered had the tendency to urge Malaysians to rise up and change the government. But what is seditious tendency? Seditious tendency is to “bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State”. Disaffection in this instance “does not mean absence of affection and regard but refers to disloyalty enmity and hostility.”
Should our liberty to free speech be limited? Article 10 of the Federal Constitution guarantees freedom of speech, assembly and association. However, Article 10 does not give carte blanche to Malaysians with regard to these rights and it is agreed in Mat Suhaimi that freedom of expression is not absolute – there are certain grounds on the limitation as provided in Article 10(2), such as necessity, public security, public order or morality etc.
It should be noted that the Sedition Act 1948 was brought into Malaya during the communist movement in 1950’s and subsequently it was amended in 1971 after the 13th May racial riot, “to ensure racial sensitivity will not be provoked and to prevent harm to certain vulnerable groups”. Under Article 10, Parliament is authorised to pass laws that restrict our fundamental liberties. Yet, its power is not unlimited, the provisos are only permissible under grounds prescribed in Article 10(2). In Dewan Undangan Negeri Kelantan v Nordin Salleh it was held that the validity of restriction that affects the fundamental liberties can be challenged and examined in court.
When limiting free speech on the grounds of public order, public order or security, there should be other tests, such as legality, necessity and proportionality. On the point of proportionality, in Sivarasa Rasiah v Badan Peguam Malaysia, per Gopal Sri Ram FCJ, stated that, “provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively .. although the article says “restrictions”, the word “reasonable should be read into the provision to qualify the width of the proviso”. His Lordship also concluded that the burden of proof is on the state to justify the proviso. Furthermore, the Sivarasa Rasiah case also gave recognition to the principle of basic structure, that is, the Parliament cannot make laws that offend the basic structure of the Constitution, unless it is sanctioned in the Constitution, the law can be struck down as unconstitutional.
From the above, the state has the burden of proof to answer whether it is reasonably necessary and expedient to maintain the Sedition Act 1948, and the nexus between citizen exercising their constitutional rights to freedom of speech and public disorder and public immorality.
Past judges seemed to have foretold the future society of Malaysia, in Melan Bin Abdullah, Ong Hock Thye CJ, said, “I can only express the hope that as and when the justification no longer exists for banning fair comment on matters of public interest, the 1970 amendments to the Sedition Act will be removed.” Malaysia as a mature multi-lingual, multi-racial, multi-religious society, the society now is very different from the society then in the 1950’s and 1970’s. Is it necessary to have such law as such to act as a tool to control our social behaviour this day and age?
The law should respond to social changes and as such, Malaysia as a maturing democratic society, restrictions on fundamental rights should be reduced rather than strengthened. It is unfortunate that the current use of the 1948 Act appears to criminalise speeches that is critical of government institution and policies. Rather than this, the state should look into the speeches that are really intended to incite public disorder, or racial hatred or violence, with fair comment of the government and its policies, being protected speech.