I REFER to the article “Crafting the law on Unity” (Sunday Star, July 27) which touched on the move to repeal the Sedition Act, 1948 and replace it with a new set of laws for the purpose of promoting national unity and racial harmony.
The first question to ask is whether it is wise to repeal a law which has withstood the test of time since colonial days in maintaining law and order, national unity and racial harmony.
The racial riot of May 13,1969 taught us some lessons, and the National Operations Council, which was the emergency authority at the time and the National Consultative Council, identified one of the causes of the incident.
They came to the conclusion that because of misrepresentations of certain major issues by certain groups of the community, riots erupted in Kuala Lumpur.
If not for the swift action taken by the Government to control the situation, it could have resulted in a much bigger national disaster.
The misrepresented issues were in relation to four provisions of the Federal Constitution which were classified as “sensitive issues” and they are as follows:
(1) The special position of the Malays and natives of any of the states of Sabah and Sarawak and the legitimate interests of other communities. (Article 153 of the Federal Constitution);
(2) The national language of the country (Article 152 of the Federal Constitution);
(3) The citizenship provisions as specified in Part 111 of the Federal Constitution; and
(4) The sovereignty, prerogatives, powers and jurisdiction of the Rulers as described in Article 181 of the Federal Constitution.
Action was taken to amend the Federal Constitution to the effect that the above provisions could not be amended by the normal procedure of getting the agreement of the two-third majority of members of Parliament but should also obtain the consent of the Conference of Rulers.
Article 63 (4) of the Federal Constitution was also amended, giving the effect that even in Parliament, no one is allowed to question the above issues.
In view of the sensitivities of the above issues, the Sedition Act, 1948 was amended by adding section 3 (l)(fgJi) to the effect that the questioning of any of those issues would constitute “seditious tendency” and any person who questions any of such issues commits an offence punishable under section 4 of the Sedition Act.
As reported, there is now the proposal to repeal the whole of the Sedition Act, 1948, including the parts dealing with the sensitive issues and the following laws will replace it – National Harmony and Reconciliation Bill, National Harmony Reconciliation and Commission Bill and the Racial and Religious Hate Crimes Bill.
Since the most relevant and significant provisions relating to the “sensitive issues” are being repealed by the proposed new laws, the objective of promoting national unity and racial harmony will be defeated.
The immediate consequence is that everyone will be free to question any of those issues and there will be a chaotic situation which as in the past may go out of control.
It is alleged that the Sedition Act 1948 is colonial and draconian. This is a sweeping statement. Not all laws enacted during colonial period are draconian.
If we compare closely, the provisions of the Sedition Act, 1948 and those of the proposed three laws, we will find that the proposed laws are more draconian.
There are more contentious elements and more offences in the proposed laws, involving complex processes.
In fact, the fundamental difference between the two laws is simply that the Sedition Act, 1948 prohibits the questioning of the “sensitive issues”, while the proposed laws allow the issues to be debated and are open for public discussion, on the grounds that there must be equality and freedom of speech. This is a very dangerous approach as there are a number of other weaknesses in the proposed Bills.
The issue of “discrimination” as embodied in the Bill as an example will instead of promoting harmony cause confusion and havoc.
Complaints of discrimination will emanate from many sources, the non-Malays against the Government and the Malays, and the Malays against the non-Malays. The laws will open a floodgate of complaints by various groups who will use the opportunity to create problems.
The proposed Commission and Tribunal under the Bill will be bogged down with many controversial cases which will in fact cause tensions among the races, instead of creating harmony. The whole purpose of the laws will be defeated and counterproductive.
It appears that those who drafted the proposed Bills are emphasising on the need to prove “intention” in the commission of the crime. Legally, this is a moot point.
It should be noted that it is an accepted practice everywhere that although “intention” is an essential ingredient in a criminal offence, in the matter of public interest and in preserving public order, certain acts can be prohibited under a penalty without the necessity to prove intention. That is the reason why section 3 (3) of the Act provides that there is no necessity to prove intention in view of the seriousness of the offence and also the public interest.
As a safeguard in order to avoid abuse of power and miscarriage of justice, the Sedition Act, 1948 provides that no person shall be prosecuted for an offence without the written consent of the Public Prosecutor and that no person shall be convicted of any offence under the Act on the uncorroborated testimony of one witness.
In this regard, it is wrong and unfounded to allege that because of the requirement to get the consent of the Public Prosecutor before anyone is prosecuted for an offence under the Act, that “selective prosecution” is being practised.
This principle and procedure are practised in all Commonwealth countries and are meant to prevent abuse and to avoid miscarriage of justice. There is nothing abnormal about it.
The establishment of Commission and Tribunal under the new laws with powers to conduct enquires and accompanied by laborious procedures are not necessary and will only incur substantial expenditure, wastage of public funds and will create unnecessary anxieties and tensions among the various races which may even lead to public disorders.
The issues can be dealt with in the normal administrative and consultative processes and in that way the issues will be solved in a more amicable way without causing much tension.
Racial and religious issues have to be handled delicately and with care. Eminent community leaders at various levels of society can play a major role in solving them. Complex legal procedures should be avoided as the conflicts will be even more entrenched in the legal process and will remain unsolved even after a decision is made .
The Sedition Act, 1948 and the Penal Code are adequate for the purpose of maintaining law and order and for promoting national harmony and unity.
Certain provisions of the proposed law are unconstitutional. For example, the Commission and Tribunal established are given the powers of a High Court and will decide on issues of the status and powers of the Ruler, Islamic religion, special position of the Malays and the legitimate interests of other commutates, official language, citizenship in the cases of complaints brought before the Commission and Tribunal. This is clearly unconstitutional.
The proposed law also provides that even the Government is not allowed to act or issue a policy which tends to cause unfair discrimination and that the Government can be brought before the Tribunal, and if found guilty, can be sanctioned accordingly. This is unusual and is clearly unconstitutional.
It appears that the main purpose of introducing the new law is to create racial harmony and that is why the Bills are called National Harmony Laws.
The proposed thrust in the laws is supposed to balance the rights of equality, freedom of speech and the various sensitives.
We are of the view that the proposed laws will in no way achieve the objective but instead will unnecessarily create disharmony among our multiracial and multi-religious society.
Thus, the draft Bills in their present forms should not be considered.
TAN SRI ABDUL AZIZ ABDUL RAHMAN
Pemikir Supreme Council and
Malay Consultative Council Member
We're sorry, this article is unavailable at the moment. If you wish to read this article, kindly contact our Customer Service team at 1-300-88-7827. Thank you for your patience - we're bringing you a new and improved experience soon!