*Disclaimer : this article is not an opinion piece on the laws of Malaysia-it is a purely factual summary of the present laws in Malaysia. The Tapir Journal will comply with relevant authorities to amend this article if necessary.
Ref: Zunar Cartoonist in The Malay Mail
6 days ago, a man in Perak was arrested.- His crime? Making a Facebook post insulting the Yang di-Pertuan Agong over the appointment of Anwar Ibrahim as prime minister. The man known as “Aa Bul” was probed under Section 4(1) of the Sedition Act 1948 and Section 233 of the Communications and Multimedia Act 1998.
This begs the question - what kind of statements will get you arrested in Malaysia?
This article will focus on the two most major pieces of legislation prohibiting certain statements in Malaysia, the Sedition Act 1948 and its reamended form, in 2015.
What can you not say?
The simplest and broadest way to know what not to say in Malaysia is to remember the 3Rs - Rulers, Religion and Race. These are covered under the Sedition Act 1948, the act originates from the British occupation of Malaysia and has been adapted to fit local contexts.
It's useful to remember that for any the following offences, according to section 11 of the Sedition Act 1948, any police officer not below the rank of Inspector may arrest any person suspected of committing these statements. No inducement of evidence is required to detain an individual under the Sedition Act 1948
Rulers
Ref: The Star
Under Section 3(1) of the Sedition Act 1948 one is not allowed to (a) “bring into hatred or contempt or to excite disaffection against any Ruler or against any Government”.
The meaning of ‘ruler’ here is thus defined as the Yang di-Pertuan Agong or the Ruler or Yang di-Pertua Negeri of any State in Malaysia. This means that anyone who utters any seditious words, conspires against the monarch, or publishes seditious publication will be guilty of the offence.
The Bukit Aman Investigation Unit is the unit responsible for investigating such statements against the monarch. Hence the reason for the term “Bukit Aman watchlist” appears all over social media.
Quite surprisingly while many have faced convictions based on Facebook posts, there seems to be a minimum threshold required for conviction. Case in point, political cartoonist Fahmi Reza has published numerous satirical cartoons of the monarchy including one where he drew the powerpuff villain Mojo Jojo in a royal gown and yet did not face any legal punishment for it.
Despite repeated probes and arrests he has never served time in jail. This signals that perhaps satirical art does not sufficiently pass the threshold.
However, it must be clarified that this does not mean one is banned from levying criticism towards the government on strict application of the Sedition Act. Section (2) of the act states numerous exceptions to what is a seditious statement. Among which is the fact that a member of the public is still allowed to “show that any Ruler has been misled or mistaken in any of his measures;” and to “point out errors or defects in any Government or constitution as by law established… with a view of remedying the errors or defects”.
It is also possible (with major exceptions) to “persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government” to lawfully change any matter. This means that it is still possible to criticise the government and to frame advise to the monarchy in a way that shows it has been misguided.
Race and Religion
The major exceptions in the previous paragraph with respect to convincing others to lawfully change any matter, is that one cannot “question any matter, right, status, position, privilege,
sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution.”
This is mentioned in Section (1)(f) of the sedition act and is expressly said in Section (2)(c) to be the only matter in which it is not permissible to persuade others of. The consequence of that, is the questioning of the contents of Articles 152, 153 and 181 of the Federal Constitution.
This means that the notion that Malay is the official language of the country (Article 152), the special position of Bumiputeras and their rights (Article 153) and the sovereignty, rights, powers and jurisdictions of each Malay Ruler within their respective states (Article 181) are safeguarded by the Sedition Act 1948. Therefore those that question these statutes can be punished under the Act.
This relates to race heavily as Article 153 states that the Yang Di-Pertuan Agong (YDPA) must exercise his constitutional functions to safeguard the special position of bumiputras (defined as Malays and natives of Sabah and Sarawak). Specifically this includes establishing quotas in (i) Federal public service positions, (ii) Federal Scholarships, (iii) Federal Trade or business licences and (iv) Tertiary education enrollment.
In terms of religion, the amended 2015 Sedition Act an offence to promote ill-will or hatred on the ground of religion.
What happens if you say these things? Can I go to jail for retweeting something?
Not even parliament is immune to the act, and the discussion of repealing affirmative action can lead to punishment under the sedition act. This even has precedence of extending to lawyers defending their clients. In 2002, leader of the opposition Karpal Singh was charged with seditious remarks during Anwar’s first corruption trial.
To put into context how rare this is, this is the only known charge of sedition in any Commonwealth country brought against a lawyer for remarks made in court in defence of a client. (although it was dropped in 2002).
Technically even a retweet of seditious material could make you liable under the act, Section 4 of the act was amended in 2015. It now states that those who “propagate” seditious publications can be charged. The meaning of “propagate” is unclear but some, including an article by The Star, claimed that these amendments were made with current forms of dissent in mind, such as critical postings on social media. This is because individuals can now be charged with sedition for retweeting or reposting content, without being the original publisher of that content.
In terms of the penalties involved, initially, on conviction of a first offence this would have resulted in a fine up to 5 thousand ringgit and/or 3 years of imprisonment and any repeat offence leading to a term not exceeding 5 years and a fine up to 5 thousand ringgit.
However the new 2015 amended Sedition Act removes the first offence rule and the possibility of being fined. Now, it simply states that one can be imprisoned for a term not less than 3 years but not exceeding 7 years.
In either case, any seditious publication found in the possession of the person or used in the evidence shall be forfeited.
What's likely to be the future in this space in Malaysia?
The current administration shows some promise for reducing censorship laws in Malaysia. Anwar himself in 2010 told Deutsche Welle that if his opposition coalition Pakatan Rakyat came to power it “would be committed to the reform agenda of free media, an independent judiciary, an economic policy that would be able to encourage investments and at the same time to cater for the welfare of the majority…”
As recently as April 2021, DSAI criticised Malaysia’s low ranking in the Reporters Without Borders’ (RSF) 2021 Press Freedom Index, placing blame on the then Perikatan Nasional government. Anwar benefitted from brave journalism himself throughout the days of his two convictions, with many protesting for his freedom being charged under the sedition act.
The current Home minister under DSAI’s cabinet, Saifuddin Nasution Ismail acknowledges that certain provisions in another censorship act, Security Offences (Special Measures) Act 2012 (Sosma) will need to be reviewed from time to time but has stated it does not require review at the moment.
Promisingly, yesterday Anwar decided to sue opponent Muhyiddin Yassin for defamatory remarks on the grounds that the latter had accused Anwar of receiving RM15 million as Selangor’s economic advisor when he in fact only took a symbolic sum of RM1.
This is good news as the parties have relied on private legal proceedings instead of the Sedition Act to silence opposition. More will need to be seen on how the press is treated in what seems to be arguably the most press friendly government in Malaysian history.