Though the nitty-gritty details of the law have not been worked out, it appears that she is proposing a non-punitive, civil and expeditious approach to tackling hate-filled and mischievous comments against the 3Rs.
Most will agree that the harmonious co-existence of races, religions and regions forms the bedrock upon which our peace and progress have been maintained for 65 years. At the same time, it must be acknowledged that racial, religious and regional divides continue to haunt us despite 66 years of independence and 60 years of Malaysia.
Lately, racial and religious invectives have grown louder and the nation is cringing under their withering force.
To maintain inter-communal peace and harmony in our multi-religious and multi-racial society, there are plenty of laws to prosecute and punish persons who vilify other races and religions or arouse hatred, hostility or ill will between classes.
The main pieces of legislation are the following:
Sedition Act 1948: Sections 3(1)(d), 3(1)(e), 4(1)(b) and 4(1(c) deal with acts that have a “seditious tendency”. The concept of sedition is defined broadly and mens rea (criminal intent) is not needed to prove guilt. A seditious tendency is enough.
In 2015, the law was tightened further to empower the Public Prosecutor to call for denial of bail and to prevent the accused from leaving the country. The courts are empowered to order that seditious material on the Internet be taken down or blocked.
Penal Code: Section 298 criminalises words or acts with deliberate intent to wound religious feelings. Section 298A, which is applicable to the Federal Territories, punishes acts that cause disharmony, disunity, enmity, hatred or ill will. Sections 505(b) and 505(c) punish statements that are likely to cause fear or alarm or incite any class to commit offences against any other class.
Sections 499, 501 and 502 deal with criminal defamation. Section 508 criminalises acts that induce a person to believe that he will be rendered an object of divine displeasure.
Printing Presses and Publications Act 1984: This Act grants the Minister wide powers, after a hearing, to suspend or revoke the printing permit of any publication that is prejudicial to public order.
Communications and Multimedia Act 1998: Section 233 of this law forbids any online content that is menacing or offensive.
Election Offences Act 1954: Section 4A makes it an electoral offence to promote ill will between races and classes. Section 9(1) forbids “undue influence”, and this is defined broadly to encompass a threat of temporal or even spiritual injury. Thus, if a political party promises a spiritual reward or spiritual punishment to the voters, that may amount to an election offence.
Wide-ranging though the above laws are, they have some defects.
Poor enforcement: Justice is not in legislation but in administration. It is not the severity of the law but the certainty of its enforcement that compels most people to obey the law. Selective enforcement of the law has given some political leaders, MPs, the elite, the powerful and the rich the impression that they enjoy immunity from the law.
Delays: As all the offences under the above laws are of a criminal nature, it is necessary, in compliance with due process, that once a complaint is received, there must be a thorough investigation and, if necessary, an arrest, a charge, a remand, and the permission of the Attorney General under Article 145(3) to prosecute.
If after the trial there is a conviction, an appeal may lie. The whole process is a long-drawn affair. This is undesirable because, in cases of ill will and hostility, urgent action is needed to douse the flames of hatred before they spread. Racial and religious hostilities feed on themselves, and the destructive feelings they unleash can multiply.
Root cause: Most prejudices are born out of ignorance. Singapore scholar Kevin Tan has argued that putting culprits in jail may do nothing to change their views about a particular race or religion. A less punitive and softer approach may give the offenders a chance to change their views without facing criminal prosecution. Requiring offenders to undergo discussion, debate, education and rehabilitation may improve their understanding of the cultures or communities they abhor and help them to adjust to the norms of an inclusive and tolerant society.
According to Tan, since the objective of the law is to protect and promote harmony, punishment should not be the only method to enforce change. Instead, healing and mutual understanding may help to rehabilitate the offender in society.
In light of the above, the following recommendations are proposed:
Race and Religion Harmony Act: Conflicts are unavoidable in any vibrant society. What is necessary is to reconcile them expeditiously and with the least friction. Despite a plethora of penal laws, it is time to consider a new statutory, institutional framework for reconciling race and religious conflicts. A Race and Religion Harmony Act (or a National Harmony Act) should be drafted after wide consultation with affected interests.
The law must have three aims. First, to investigate complaints of hate speech or ill will against any community; second, to try to bring about conciliation through meetings, discussions and education; and third, only if conciliation fails, must the matter be referred to the criminal courts for enforcement of the penal provisions.
A special Tribunal or Board: Due to the delays inherent in criminal justice, a special Race and Religion Harmony Board or Tribunal must be established as a civil tribunal to investigate and reconcile race and religious disputes. The Tribunal should have the power to appoint local conciliation committees with the power to receive, investigate and resolve complaints by conciliation. The National Unity Ministry could play a constructive role in referring complaints to the Tribunal and enforcing its decisions.
The proceedings before the Tribunal must be of the nature of a civil proceeding. The Tribunal must act expeditiously as delays will defeat the purpose of its creation. As with the 2015 amended Sedition Act, the proposed new Harmony Act should allow the Tribunal to impose restraining orders upon people causing feelings of enmity, hatred, ill will or hostility between different religious groups.
Examples of such an approach existed in the Race Relations Act (1965) of the United Kingdom. Close to home, Singapore’s Maintenance of Religious Harmony Act (2019) adopts a pre-emptive approach and permits prompt and effective action.
Criminal sanctions should apply only if the orders of the Tribunal are contravened.
Also, sanctions, when imposed, need not be custodial in nature. Injunctions, damages, community service orders, and friendly seminar sessions may be better alternatives.
Limit the application of sedition law: Prof Thio Li-ann distinguishes between vertical and horizontal dimensions of the Sedition Act. Adapting her view to the Malaysian context, the Sedition Act should be limited to incitement to violence against the state and its institutions, including royalty. But inter-group antagonisms, including wounding religious and racial feelings and inciting ill will and hostility against races and religions, should be regulated by a separate law like the Race and Religion Harmony Act with provisions for non-punitive measures, persuasion and rehabilitation. In the long term, this approach may build bridges where walls exist.
It must be observed, however, that the law is not the only factor or force that influences society. We need other reforms.
In our schools, colleges, and universities, in the civil service, and in Parliament, there is insufficient knowledge of the carefully crafted ethnic compromises of our nation’s basic law – our supreme Constitution. The basics of the Constitution must, therefore, be taught at all levels.
The Constitution must be amended and enriched with the Rukun Negara as its Preamble. Knowledge of the Rukun Negara’s five principles is widespread. But very few know its five sterling objectives – achieving and fostering national unity; preserving a democratic way of life; creating a just society in which the prosperity of the country can be enjoyed together in a fair and equitable manner; ensuring a liberal approach towards our rich and varied cultural traditions; and building a progressive society that will make use of science and modern technology.
Our education system needs to be revamped to build bridges rather than fortify walls.
Finally, whether the law can, by itself, foster religious and racial harmony in a deeply divided society is open to question. But given the noticeable deterioration of harmonious community relations, we have no other choice but to try.Emeritus Prof Datuk Dr Shad Faruqi is Holder of Tunku Abdul Rahman at the Faculty of Law, Universiti Malaya. The views expressed here are the writer’s own.
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