Stand against incitement to hatred


  • Reflecting On The Law
  • Thursday, 28 Feb 2019

I wish to commend Tan Sri Razali Ismail, chairman of the Human Rights Commission (Suhakam), and Lawyers for Liberty executive director Latheefa Koya for speaking up against racism, hate speech and malicious misinformation about our supreme Constitution.

It has been reported that during the Semenyih by-election, some politicians questioned the appointment of non-Malays to the posts of chief justice, attorney general and finance minister. A racist criticism of this sort raises important issues of constitutional law and draws attention to laws against hate speech.

Article 153: Our Federal Constitution’s spirit is one of accommodation, moderation and tolerance. Equality is one of its cherished ideals in Article 8. Everyone has a place under the Malaysian sun.

Article 8 is, however, subject to important exceptions. One of them is Article 153, which safeguards the “special position of the Malays and natives of Sabah and Sarawak”. For their upliftment, reservations may be made in public services; scholarships, educational or training facilities; permits or licences for trade or business; and places in post-secondary education.

Despite the ethnic quotas in Article 153, it must be noted that our Constitution was not built on apartheid, racial segregation, exclusiveness or racial superiority. The forefathers of the Constitution subjected Article 153 to many limitations suitable to a diverse, multi-ethnic society.

First, there is nothing in the Constitution to bar a non-Malay from holding any official position within the administration, parliament or the judiciary. The only exceptions are relating to the King, the Sultans, posts in the Royal Malay regiment, religious posts and the office of mentri besar in the nine states that have Sultans (with discretion to the Sultan to appoint a non-Malay).

Second, Article 153(5) subjects Article 153 to Article 136, which holds that all persons of whatever race in the service of the Federation shall be treated impartially. The combined effect of Articles 153 and 136 is that reservations are permitted at entry point but once a person is in service, he/she must be treated equally.

Third, Article 153 protects not only Malays but also the natives of Sabah and Sarawak. Perhaps the critics forget that our current Chief Justice from Tuaran, Sabah, is as much, if not more, of a bumiputra than the critics themselves! Sabah and Sarawak will not be amused at such an attempt to marginalise the bumiputras of these states.

Fourth, Article 153 explicitly requires the Yang di-Pertuan Agong to safeguard “the legitimate interests of other communities”.

Fifth, in our 61 years, there have been many examples of non-Malays holding critical administrative, judicial and parliamentary posts.

In the AG’s office were Thomas Vernor Alexander Brodie (1955-1959) and Cecil M. Sheridan (1959-1963). In the CJ’s position was James Thompson (1957-1963). As finance minister, we had Tun Tan Siew Sin, who graced the portfolio for 15 years.

Oath: The reported assertion that the post of AG requires the taking of an oath under the Holy Quran is absolutely false. Only the Oaths of Office of the Yang di-Pertuan Agong and the Timbalan Yang di-Pertuan Agong in the Fourth Schedule have Islamic, religious elements. All other oaths are religiously free and require fidelity to the country, the Constitution and the office to be occupied.

It follows that there is no requirement of race and religion in the appointment of the CJ, AG or finance minister. It is a gross distortion of the Constitution and disservice to the country to fan racist or religious objections to these appointments.

Fireman Adib: The critics have also accused the AG of racial bias and inaction in investigating the tragic death of fireman Muhammad Adib Mohd Kassim.

This appears to be a malicious falsehood. An inquest has been ordered under Section 399(1) of the Criminal Procedure Code and the law is taking its course. Only those wishing to hide the truth and to capitalise on the tragic death will wish to sweep the facts under the carpet.

Hate speech: These are public expressions that spread, incite, promote or justify hatred, discrimination or hostility towards a specific group.

They contribute to a general climate of intolerance, which in turn makes attacks more probable against those groups. Communal riots and genocide are often triggered by hate speech.

In Malaysia, hate speech could be punished under several laws, including Section 505(c) of the Penal Code and Section 3 of the Sedition Act. The latter makes it an offence to promote feelings of ill-will, hostility or hatred between different races or classes or religions.

It was reported that Datuk Seri Nazri Aziz said that he was “stating facts” that the Malay community feared bias because the AG, chief justice and finance minister were not of their community.

A few observations are in order. First, “facts” are no defence under the Sedition Act. Second, neither is lack of criminal intention a defence. Tendency to arouse ill-will, etc, is sufficient.

Third, by painting the Malay community in such racist colours, the critics insult all Muslims and Malays. All of us who have worked in Malay organisations know that the Malays in general are a moderate lot and very inclusive. The very broad and non-ethnic definition of a “Malay” under Article 160(2) of the Constitution is a pointer to how inclusive the community can be.

I have worked for about 45 years in Malay educational institutions. My experience is that Malay parents, Malay students and Malay admin staff from the bosses to the driver, are deeply appreciative of any one of any race or religion who works with sincerity and dedication.

It is some politicians and fringe groups that manufacture threats from imaginary enemies and whip up “ethno-populism and jingoist nationalism” to arouse distrust of “others”.

We must all take a stand against such gutter politics and primordial tendencies. Our leaders must condemn hate speech strongly, publicly and consistently.

As US civil rights activist Reverend Jesse Jackson said: “Leaders of substance do not follow opinion polls. They mould opinion, not with guns or dollars or position, but with the power of their souls.”

Emeritus Professor Datuk Dr Shad Saleem Faruqi is holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are entirely the writer’s own.


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