When Prime Minister Dato Sri Najib announced more than two years ago that the Sedition Act of 1948 would be repealed and replaced by a National Harmony Act, I welcomed the proposal on behalf of Yayasan 1Malaysia ( see The National Harmony Act: Rights and Restraints 23 July 2012).
In the last few months however some prominent Malaysians have publicly argued for the retention of the Sedition Act. While there is some merit in their arguments, they overlook the undeniable fact that the basic thrust of the Act runs counter to the spirit of the most fundamental law that governs the life of our nation, namely, the Malaysian Constitution. Our Constitution envisages a democratic polity that respects the freedom of expression. “A democratic way of life “is also one of the five cherished goals of our national charter, the Rukunegara. Our national vision, Wawasan 2020, also speaks of fostering a mature democracy as one of our nine strategic challenges.
The Sedition Act was conceived by the British colonial government as an instrument to suppress any challenge to the colonial authority which explains why the Act was formulated and enforced in a number of British colonies. Though it has been amended since Merdeka, the Act in essence takes a negative view of dissent and ideas that differ from those espoused by the powers-that-be. It is, to all intents and purposes, a law that seeks to protect and perpetuate the interests of the ruling authority.
Nonetheless, the supporters of the Sedition Act have some legitimate concerns. Will the repeal of the Act result in challenges to the position of Islam as the religion of the nation, or the status of Malay as the sole official and national language or the role of the Sultans as constitutional monarchs, all of which are protected in the Sedition Act? These concerns have come to the fore largely because of continuous and persistent attacks on these constitutional provisions in the alternative media. What has exacerbated the situation is the vile and vicious language employed by these peddlers of vitriolic venom.
If we are committed to inter-religious and inter-ethnic harmony and peace, we will have to ensure that the proposed National Harmony Act takes full cognizance of these concerns. Indeed, all those clauses incorporated into the Sedition Act following the 1971 amendments to the Constitution pertaining to 1) The Special Position of the Malays and the Natives of Sabah and Sarawak and the legitimate interests of the other communities. 2) The status of Malay as the sole official and national language and the right to use and study other languages 3) Citizenship and 4) the role of the Sultans as constitutional Monarchs, should be integrated into the new National Harmony Act.
The new law should also explicitly protect two other Constitutional provisions. One, the position of Islam as the religion of the Federation and related clauses and the freedom to practise one’s religion and two, the integrity of the Federation which would prohibit any advocacy of secession. Issues revolving around religion have become far more controversial today than they were in the past. While talk about secession is infrequent, it poses a serious threat to the State and therefore needs to be addressed.
It will be observed that most of the provisions of the Sedition Act based upon the 1971 Constitutional Amendments take into account the interests and aspirations of the different communities. So do the constitutional clauses on religion alluded to here. The Harmony Act should also reflect this just balance.
To grasp the significance of a just balance the drafters of the Harmony Act would do well to read the speeches of our leaders from both the government and the opposition when they debated and endorsed the 1971 Constitutional Amendments. What Tun Abdul Razak, Tun Dr. Ismail Abdul Rahman, Tun Tan Siew Sin and Tun V. T. Sambanthan from the government side and Dato Mohamed Asri Muda, Tun Dr. Lim Chong Eu and Tan Sri Dr. Tan Chee Khoon from the opposition benches had to say about the amendments in relation to national unity and harmony and how they should be implemented offer some gems of wisdom on the intricate balance between freedom and stability, rights and restraints, which are as relevant today as they were in 1971.
One of those gems is the clear distinction they drew between a position, a status or role, on the one hand, and the workings of an institution or policy or the conduct of an office holder or his decisions, on the other. What this means is that while demanding that the monarchical system be abolished would be totally wrong, raising questions about the conduct of a Ruler or his decisions would be legitimate. This is why former Prime Minister Tun Dr. Mahathir Mohamad was acting within the ambit of the Constitution and in the interest of the people when he amended the law in relation to the powers of the Rulers in 1983 and 1993. Likewise, an academic or lawyer who criticizes a decision made by a Ruler in a matter pertaining to the law is merely expressing his concern about the validity of that decision. He is not challenging the monarchical institution itself. In similar vein, those who expose abuses in the application of the provision on Special Position in the Constitution — as the 1971 parliamentary debate establishes – cannot be accused of seeking the abrogation of Special Position. In the context of current controversies, criticisms of the growing influence of exclusive, sectarian interpretations of Islam among religious bureaucrats should not be viewed as attacks upon the status of Islam itself.
Apart from drawing a clear distinction between an institution and its workings in the proposed Harmony Act, it is equally critical to ensure its effective implementation. The law has to be enforced in a fair and just manner. As I noted in my 2012 article, there can be no bias, no double standards. It is in that context that I suggested careful monitoring of its implementation by a panel of jurists, academics and activists for at least a period of time to ensure that the law does make a tangible contribution to national harmony.
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