Of activities detrimental to Parliamentary democracy

  • A Humble Submission
  • Monday, 10 Aug 2015

RECENT events have brought into focus a specific provision in the Penal Code – Section 124B, the offence of committing “an activity detrimental to parliamentary democracy”.

The offence carries a maximum sentence of 20 years’ imprisonment.

The authorities have been using this particular provision to investigate, arrest and detain, curiously enough, people who are in some ways connected to issues relating to a particular state owned firm. These include media owners and editors, civil servants and activists. There is even an arrest warrant issued against the editor of a news blog, and the authorities will attempt to extradite her from her country.

All of these people, engaged in different things, have all been investigated for allegedly committing activities deemed detrimental to parliamentary democracy.

Section 124B is an offence under Chapter VI of the Penal Code. Chapter VI offences are what is known as “Offences against the State”. Such offences allow the authorities to utilise the Security Offences (Special Measures) Act 2012, better known as Sosma.

When Sosma and certain Penal Code offences were introduced in Parliament back in 2012, serious concerns were raised by the Malaysian Bar and civil society.

Sosma and the new Penal Code offences were then packaged as part of the “anti-terror” legislations to deal with terrorism, but with offences such as Section 124B included in the package, clearly these laws go beyond offences relating to terrorism.

The authorities could invoke Sosma against the people who are now being investigated under Section 124B. The law, unfortunately, gives them powers which include detaining a person up to 28 days without having to obtain a remand order.

If upon completion of investigations the public prosecutor proffers charges against those who have been investigated, Sosma may also be invoked.

A Sosma trial has different procedures and evidential rules compared to the usual criminal trial.

What then constitutes “activity detrimental to parliamentary democracy”?

According to Section 130A of the Penal Code, it is “an activity carried out by a person or a group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means”.

The words used to interpret the offence are at best, vague and imprecise. What does “designed to overthrow or undermine parliamentary democracy” mean? What is “unconstitutional”? These words were not judicially defined at the time of writing.

To quote the memorandum prepared by the Malaysian Bar in relation to these laws, the creation of the offence “seem designed to curtail and criminalise legitimate democratic activity alongside the activity of overthrowing or attempting to overthrow parliamentary democracy by violent means. The definition of ‘activity detrimental to parliamentary democracy’ has too broad a scope; it should only criminalise violent conduct.”

The result is that the authorities are placing their own interpretation of what constitutes activities detrimental to parliamentary democracy.

But how can reporting on an issue possibly be construed as attempting to overthrow parliamentary democracy? How can peaceful protests be interpreted as unconstitutional? How can carrying out responsibilities mandated by Parliament possibly be detrimental to parliamentary democracy?

In fact, one could even argue that all these people are engaging in activities which strengthen parliamentary democracy, instead of detrimental to it.

The serious concerns raised by the Malaysian Bar and civil society back in 2012 are unfortunately vindicated. These provisions are being used in ways which go beyond what Parliament would have intended when the law was passed.

> The views expressed are entirely the writer’s own.
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