Malaysia: Repeal of archaic Sedition Act 1948 urged by IBAHRI, Clooney Foundation and other rights organisations in joint statement
Wednesday 31 May 2023
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In a letter co-signed by the International Bar Association’s Human Rights Institute (IBAHRI), the Clooney Foundation for Justice and seven other rights organisations, Malaysia’s Home Affairs Minister Datuk Seri Saifuddin Nasution Ismail, and the country’s Minister of Law Dato' Sri Azalina Binti Othman Said are called to repeal the Malaysia’s Sedition Act of 1948. The Sedition Act is so broad and imprecise that it is unclear what speech can be criminalised, leaving it susceptible to abuse. It criminalises speech with a ‘seditious tendency,’ including: ‘to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government’. None of the key terms, such as ‘hatred,’ ‘contempt,’ ‘discontent,’ or ‘disaffection’ are defined. Described by the letter’s signatories as an ‘archaic, colonial holdover’, Malaysia's Sedition Act is in violation of international standards on the rule of law and freedom of expression. Successive governments have pledged to abolish or reform the law but it remains in use today.
The letter in full appears below and can be downloaded here.
Datuk Seri Saifuddin Nasution Ismail
Minister of Home Affairs
Dato' Sri Azalina Binti Othman Said
Minister in Prime Minister's Department (Law and Institutional Reform)
Dear Honourable Ministers,
We, the undersigned press freedom, civil liberties, and international human rights advocacy organizations the Clooney Foundation for Justice, the International Bar Association’s Human Rights Institute, SUARAM, Lawyers for Liberty, Article 19, Center for Independent Journalism, ALIRAN, Undi18, and the Teoh Beng Hock Trust for Democracy, urge the introduction of legislation to repeal Malaysia’s Sedition Act 1948 and in the meantime urge your government to concede the unconstitutionality of the Sedition Act, which is currently subject to challenge in the Court of Appeals in connection with the criminal conviction of Wan Ji in the case Wan Ji Bin Wan Hussin vs. Public Prosecutor.
As described in the attached Annex, the Sedition Act violates international standards on the rule of law and freedom of expression. Further, courts and legislatures around the world have recently struck down or repealed this archaic, colonial holdover. But in Malaysia it remains on the books – and indeed is still being used – despite pledges by the Pakatan Harapan coalition as well as previous governments to repeal or reform the law.
Tomorrow, the Court of Appeals will hear further arguments on the Act’s constitutionality in Wan Ji’s case. The government should fulfil its promise to the Malaysian people, concede the Act’s unconstitutionality, and begin work to repeal the law.
Broken Promises
Wan Ji's case is a reminder that successive Malaysian governments have broken their promises to repeal the archaic Sedition Act, which has primarily been used to “suppress political dissent and restrict press freedom on the Internet.” Prime Minister Najib Razak, for example, repeatedly pledged to abolish the Sedition Act. Indeed, the government of Malaysia in 2013 agreed during its Universal Periodic Review to repeal the law.1 In 2015, Prime Minister Razak strengthened it instead.
Next, Pakatan Harapan promised to remove all draconian laws if it came to power. Its 2018 election manifesto stated: "This book contains Pakatan Harapan’s promises to the people of Malaysia on the steps we will take when we become the government. These are the policies and actions that we will implement to give this country the treatment that it needs, to REBUILD THE NATION and to FULFIL THE HOPE of the people... The Pakatan Harapan Government will revoke the following laws: Sedition Act 1948...”
In 2018, Pakatan Harapan assumed power. Months later, in advance of the country’s next UPR review, the government stated that it was “in the midst of conducting consultations with the relevant ministries and agencies to review the Sedition Act.”2 In October 2018, the Pakatan Harapan government imposed a moratorium on sedition cases but lifted it soon thereafter. Subsequently, the administration took no further actions on repeal.
In 2020, the new Perikatan Nasional administration stated that it was "committed to improving security laws including Sosma and the Sedition Act.” No reform followed.
And in 2022, Pakatan Harapan issued another election manifesto, stating that one of its priorities if re-elected would be "reviewing and repealing draconian provisions of acts that can be abused to restrict free speech such as the Sedition Act 1948, Communications and Multimedia Act 1998, and Printing Press and Publications Act 1984." And yet the Sedition Act remains intact. Not only that, the public prosecutor is opposing Wan Ji's petition requesting that the Federal Court evaluate whether the Sedition Act complies with freedom of speech, guaranteed under both the Malaysian constitution and international standards.
Rule of Law and Freedom of Expression Standards
Successive Malaysian governments have promised to repeal or reform the Sedition Act precisely because it does not comply with rule of law and freedom of expression guarantees.
As described further in the Annex below, for instance, international, regional, and national precedents require that criminal laws be sufficiently clear, so that individuals can understand what is criminal, and what is not.
The Sedition Act, however, is so broad and imprecise that it is unclear what speech can be criminalized, leaving it susceptible to abuse.
The Act criminalizes speech with a ‘seditious tendency,’ which includes (among other things) a tendency “to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government” and “to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State.” None of the key terms, such as ‘hatred,’ ‘contempt,’ ‘discontent,’ or ‘disaffection’ are defined. Meanwhile, Malaysian courts have allowed prosecutors to outsource their burden of proof by introducing evidence on the subjective reactions of particular individuals to certain speech – as opposed to hewing to a consistent standard.
These ambiguities have led to rampant abuse, as documented by leading watchdogs — some of the signatories of this letter. According to numbers released by the government in 2023, there have been 367 investigations launched under the Sedition Act over the previous five years,, with one of us finding that cases have spiked during times of heightened criticism of the government.
The Sedition Act further fails to comply with the widely-accepted requirement that any restriction on freedom of expression must be necessary and proportional. It has been interpreted, as in Wan Ji’s case, not to require a risk of violence but merely risk of an adverse reaction, which encompasses much more minute disruptions to public order and sets a low threshold for criminal prosecution and punishment. Indeed, various international, regional, and national bodies have held that there must be an imminent risk of violence for the prosecution of speech offenses. The Sedition Act falls far short of that.
Global Trends
The Sedition Act is a holdover from the British colonial era, and its wording is thus replicated in the sedition laws of various other former British colonies around the world, which have taken action to overturn or repeal their sedition laws precisely because of their vagueness and lack of proportionality.
In Pakistan, for example, the Lahore High Court recently struck down the country’s sedition law, emphasizing that sedition was “enacted to perpetrate and entrench British rule in the sub-continent,” and explaining that the provision was “archaic and antithetical to the instincts and traditions of a people under a constitutional democracy.” The court denounced the “broadly worded” nature of the provision, which gave “unstructured discretion” to the authorities. In 2022 the Indian Supreme Court stayed all pending sedition cases, noting that “it is clear that the Union of India agrees with the prima facie opinion expressed by this Court that the rigors of Section 124A of IPC [the sedition law] is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime.”
In other Commonwealth states, legislatures have repealed or limited sedition laws, with Australia amending criminal provisions referring to sedition to instead use the term ‘urging violence,’ New Zealand doing away with its sedition law altogether, and Canada restricting sedition cases to those involving the advocacy of violence. One of us has published a detailed report describing these trends.
In 2022, Malaysia’s neighbor Singapore repealed its sedition law, with the Ministry of Home Affairs noting that “[s]ome types of conduct covered by the Sedition Act 1948 should also not be criminalised in today’s context, such as exciting disaffection against the Government” – the exact same term used in Malaysia’s law.
Malaysia should likewise act to address a law “intended for a time when [it] was under the colonial regime.”
Conclusion
The Pakatan Harapan coalition has an opportunity to fulfill more than a decade of promises. The Sedition Act has no place in Malaysia.
Respectfully,
- Article 19
- ALIRAN
- Center for Independent Journalism
- The Clooney Foundation for Justice
- The International Bar Association’s Human Rights Institute
- Lawyers for Liberty
- SUARAM
- Teoh Beng Hock Trust for Democracy
- Undi18