Sedition Act amendments outrageous and ill-thought out

The Centre for Independent Journalism (CIJ) is outraged at the amendments proposed by the government to the Sedition Act.

In particular, CIJ is especially appalled at the amendments allowing the court to make a prohibition order, prohibiting persons from making or circulating any prohibited publication,and from accessing any electronic device.

CIJ stresses that the freedom of expression is guaranteed in Article 10 of our Federal Constitution. Restrictions by Parliament can only be made if they clearly meet the standards of legitimacy, necessity and proportionality.

The proposed amendments seem to fail all the requirements to constitute a legitimate restriction to freedom of expression.

Firstly, even if the amendment is passed into law, it is so imprecise and vague that it cannot constitute a legitimate law, let alone a good law. The amendment states that the court can prohibit a person from accessing any electronic device. It does not specify what electronic device can be banned – this can range from a person’s mobile phone, to tablet, to computer, to even an Astro dish, radio, television.

Further, the clause does not specify how long this order can last, raising alarming questions on whether such an order could be made indefinite. As stated in the 2011 UN Special Rapporteur on Freedom of Expression report, “cutting off users from Internet access, regardless of the justification provided [sic] [is] disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights”

Secondly, there is no legitimate reason for this clause. The Constitution clearly states that restrictions can be made for specific reasons such as national security, public order or public morality.

The Sedition Act and its amendments contain broad and imprecise offences such as promoting feelings of “ill-will” and “hostility” between different races. The new amendments also introduce the new offence of promoting feelings of ill-will, hostility or hatred of persons on the ground of religion. This is deeply problematic for three reasons. One, freedom of expression includes expression of views and opinions that offend, shock or disturb. Promotion of ill-will and hostility is not a strong enough test for restriction of expression.

Two, the act does not require demonstration of intention to incite violence, hatred or even discrimination, which is an important criteria for laws that restrict potentially inciteful expression.

Three, there is no need to demonstrate a direct link between the feelings of ill-will, as such, and a threat to national security, public order or public morality. This is clearly unconstitutional and also goes against international standards of human rights law.

The amendment to allow the court to order denial of access to electronic devices is neither necessary nor proportionate.

The denial of access to online content is a severely draconian measure, and could potentially affect a person’s access to the full spectrum of their fundamental human rights, from their ability to earn a living, to participating in community and social activities, to their ability to access information.

What the government has proposed is extremely dangerous to the freedom of expression landscape in Malaysia. Not only will the law have an impact on the spaces available for critical and democratic discourse, it will also result in potentially overreaching, crippling and unintended consequences, due to the gaps in this ill-thought out law.

The restrictions that have been added to the Sedition Act are reflective of the problems with the Act in itself, which is so vague and wide, that it would be impossible to ensure that this Act is used only to protect national security, public order or public morality.

There is very little in the Act itself that can function as a check and balance to ensure that it actually does what its proponents say it will do – to keep Malaysia peaceful and safe. In fact, it appears to be endangering the fabric of our nation as ordinary citizens are being threatened with minimum jail terms and harsh action merely for discussing issues that are important for genuine and long-lasting understanding between different religious, ethnic and social groups.

The government clearly has no genuine interest in promoting genuine harmony and understanding, and has reneged on multiple promises to make Malaysia a more open and democratic country which respects human rights.

We call on the government, yet again, to fulfil its promises and repeal the Sedition Act entirely. For the avoidance of doubt, we also make clear that any repeal of the Sedition Act should not be followed by the introduction of a new Act with very similar provisions, but with a different name.

Sonia Randhawa and Jac Kee
Directors