A couple of weeks ago, Prime Minister Tun Dr Mahathir Mohamad talked about the Sedition Act. He calmly explained to all Malaysians that it isn’t meant to avoid criticisms about wrongdoing, it isn’t meant to shackle whistleblowers, and it’s completely not sedition if you tell the truth.
“If you say something factual, you cannot be punished for it,” said Dr Mahathir, “But, on the other hand, if we shut the mouths of everyone, to the point that people cannot even speak up against acts of crime, then there will be injustice in the country.” (“Be clear on what insult means”, Nation, The Star, Jan 11.)
Basically, it sounded like he could have been talking about anything – except the Sedition Act. Now, the Sedition Act is not unfamiliar to Pakatan Harapan. In its own manifesto, PH said that it would revoke the Sedition Act if it came to power, giving the reason that it is a law “inherited from the British colonial era without amendment to improve weaknesses”. And then after PH formed the government, it seemed to kind of casually forget this.
I have written about the Sedition Act before (“Lost in translation?”, Contradictheory, Star2, March 29, 2015). If you don't want to click on the link, here’s a summary of what I said then: I pointed out the problem that you can be guilty of sedition even if all you are doing is repeating what somebody else has said. And to top it off, it doesn’t matter if what you said was true, nor does it matter if you said it with the best of intentions. It’s like saying somebody’s dress is figure-hugging and hearing them respond with “Are you saying I’m fat?”
It’s all there in the Act. The Act talks about whether “things” have a “seditious tendency”. These include actions, speech, words and publications, for example, and whether they influence people to feel hatred, contempt or disaffection for the Rulers or the government. Whether the “things” are true or not doesn’t matter.
The Act also says, “The intention of the person charged at the time ... shall be deemed to be irrelevant”.
Why is it interpreted like that? It’s hard to say, but I think it does make it easier for the authorities to manage anti-government sentiments.
For example, it’s possible to be selective with the truth to manipulate a situation. So, technically, what somebody said might be fact, but might also be misleading.
Secondly, intent is something that can be very difficult to establish. You have to get into the mind of the accused and tease out what he or she intended by what he or she said or wrote.
For example, if all you wrote on a Facebook page is that somebody should be investigated for doing a Very Bad Thing, then you have sown the seeds of doubt in the minds of the audience. You might argue, I didn’t know it wasn’t true, I just wanted to see justice being done. What, people got upset by what I wrote? I didn’t know that would happen.
This is precisely the sort of annoying thing I have to face on social media almost every day. Somebody re-posts or retweets a rumour en masse to others with two button clicks and when you ask them why didn’t they just check it first, they shrug and say, “I just wanted people to know – just in case”.
(That’s really what we should have a law against: Indiscriminate and irresponsible retweets. The penalty would be to copy pages of Wikipedia by hand for the local library.)
But the thing is, it should be hard to put somebody in jail.
The system of justice we have now focuses on the presumption of innocence. In other words, people have to gather evidence and prove to the court that you are guilty. And people should be entitled to the best possible defence, and saying I am normally a good person who does good things should be taken into account.
Intent matters. The difference between murder and manslaughter is intent. Intent is the bedrock of whether we are kind to others because we want everyone to thrive, or because we want to later take advantage of them.
If we want to be able to prosecute people for saying hateful things that disturb society, you must show intent. Either make clear the context or show a pattern of previous behaviour. It’s the difference between an Internet troll and Karpal Singh.
The Sedition Act, in a way, does try to at least cover situations where you are trying to right a perceived wrong in society. But in a case like when artist Zunar (Zulkiflee Anwar Haque) drew cartoons making fun of alleged crimes in the previous government, it is clear there is still much leeway for interpretation there.
The facts do matter. In this world where politicians more than anyone seem to believe they can skate by on allegations, people who say horrible things should be forced to stand by their words and prove them. It’s an opportunity for the truth to shine instead of hiding out.
There are many who blame the PH government for being hypocritical for not keeping its election promise and maintaining the Sedition Act. I don’t disagree.
But the fact is that Dr Mahathir touched on the two things that perhaps could potentially make the Act fairer. He said it is OK if we told the truth. And it is OK if we want to stop injustice.
And I can’t think of why any Malaysian wouldn’t want to do both.