Courts Can Uphold Interfaith Harmony Without Need For Sedition Laws

---

 
In an article that I came across recently, Nazri Aziz, the erstwhile Malaysian ambassador to the US, claimed that Malaysia must keep its sedition laws to check abuses of free speech.
Nazri, a former lawyer, is a firm believer in free speech. However, he said free speech has its limits. It would be too late if free speech leads to racial or sectarian riots, he said. “We need the Sedition Act because it is a preventive law,” he told Malaysiakini.
Free speech is a fundamental liberty, and is protected by Article 10 of the Federal Constitution. However, according to the constitution, this right is not absolute. It is subject to restrictions which Parliament may impose in the interest of national security, public order or morality.
Those restrictions have given rise to a raft of criminal laws that prohibit free speech. Apart from the Sedition Act 1948, there is Section 233 of the Communications and Multimedia Act 1998, and various sections of the Penal Code, the Printing Presses and Publications Act 1984 and the Peaceful Assembly Act 2012.
But many of these laws have come under criticism for curtailing free expression through the use of unduly broad and vague provisions, allowing for wide interpretation, and giving rise to potential misuse.
The enforcement of these laws is also entirely at the discretion of the attorney-general (AG), who in his other constitutional role as public prosecutor has the sole authority to bring criminal charges.
Of course, ordinary citizens may also pursue a private prosecution, but this again requires the sanction of the AG. In a recent case, the AG’s refusal to bring charges in respect of a complaint against two Muslim preachers for allegedly offensive comments about another religion resulted in the complainant being left with no remedy.
There is no doubt that Malaysia has gone through a sustained period of interfaith disharmony recently. To many, that would justify the continued existence of these laws. After all, the threat of prosecution and jail time should serve as a deterrent to religious intolerance.
I, however, take a different view. To my mind, the abuse of freedom of speech that leads to interfaith disharmony is a violation of Articles 3, 10, and 11 of the Federal Constitution.
Article 3 provides that Islam is the religion of the Federation; but allows for other religions to be practised in peace and harmony. Article 10 provides that every citizen has the right to freedom of speech and expression, while Article 11 allows every person the right to profess and practise his religion.
I view the provocation of interfaith disharmony as a constitutional tort which can be more effectively managed through judicial intervention. The courts have the authority to issue orders to curb such disharmony if a public interest litigant or body, such as an interfaith organisation, an NGO or the Bar Council, initiates a motion to preserve and defend interfaith harmony.
This approach negates the need for the Sedition Act and other similar legislation to address constitutional torts.
Singapore does it differently. It has enacted the Maintenance of Religious Harmony Act, which separates religion from politics and empowers authorities to issue restraining orders against those who incite religious hatred or hostility.
The legislation ensures that politics and religion remain distinct. Even promoting a political cause under the guise of religion is prohibited.
Importantly, it recognises the constitutional tort of inciting hatred or ill-will, a concept that should have been introduced into our country when the constitution was first conceived to pave the way for the repeal of the Sedition Act, a pre-Merdeka law, and other similar laws that have been enacted.
By definition, the term “tort” includes wrongful acts of both private and public nature. It extends to cover violations of rights protected under the Federal Constitution.
Based on the provisions cited above it will be seen that interfaith harmony forms the cornerstone of our semi-secular constitution which provides for Islam as the religion of the federation but allows other religions to be practised in peace and harmony.
No person or body should be allowed to criticise or demean another person on account of their religion. Those who do so violate the constitutional guarantees of free speech and expression, a constitutional tort, and can be held liable for doing so.
In my view, our founding fathers endowed judges with the judicial power to address this tort to ensure all constitutional rights and liberties are upheld. This can be deduced from the judges’ oath of office which grants them extended judicial power to preserve, protect and defend the constitution. This wide scope of judicial power was exemplified in the case of PP v Aluma Mark Chinonso.
Constitutionally empowered, a judge, upon receiving a complaint from any member of the public against a miscreant, is empowered to assess the complaint and, if a constitutional breach is found, provide the necessary remedy.
Malaysian jurists and the legal industry must study and understand the nuances of oath of office jurisprudence to sustain social justice, including interfaith harmony, which are essential pillars for economic growth with peace and harmony at the forefront.
No person can have greater constitutional rights than those provided by the constitution. Similarly, Malaysians should not be bullied into surrendering their rights and the protections afforded to them by the constitution.
Ultimately, the courts and the Malay rulers are vested with constitutional rights to protect all the citizens, irrespective of their race, creed or colour. - FMT
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

---