Freedom of speech, which includes constructive criticism of the government, should be allowed as such a right is guaranteed under the law, lawyers said.
They said the rights of citizens were not merely limited to voting come a general election and then to keep their arms folded to allow those elected to act at their whims and fancies.
Lawyer Muhammad Rafique Rashid Ali said criticism must be allowed to flourish in the public domain as a check and balance of a democratically-elected government.
“This right is enshrined in our Federal Constitution and must be allowed, provided there is no incitement of violence,” he told FMT.
Rafique said this in response to a Sept 5 Indian Supreme Court observation that sedition charges cannot be brought against a person for raising his voice against the government or its policies.
The clarification became necessary in view of the controversy generated after sedition charges were slapped on a number of people in India, sparking demands for the law to be scrapped.
A Times of India report said the bench declined to revisit a 1962 case as it had clarified under what circumstances the penal provision could be used.
The court, 54 years ago, held that a “citizen has a right to say or write whatever he likes about the government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the government or with the intention of creating public disorder”.
Rafique said the judgment seemed to be a glimmer of hope, especially since Indian and Malaysian legal jurisprudence are closely tied to English laws.
“Our courts are not bound by the Indian court decision, but we hope judges will take notice of the pronouncement,” he said, adding the judgment came from the highest bench of a reputable Commonwealth country.
Lawyers For Liberty Executive Director Eric Paulsen said the Malaysian Sedition Act should be removed from the statute books as it was a relic of a bygone era.
He said such laws had already been abolished in the United Kingdom, New Zealand and Australia. This legislation in Canada was hardly enforced.
“But our courts are taking an overly strict approach when it comes to interpreting what amounts to sedition,” he said, in an apparent reference to Batu MP Tian Chua, who was sentenced to three months’ jail and fined RM1,800.
The trial judge said he was satisfied that Tian Chua had uttered words of a seditious tendency like “bangkit” (rise) and “turun ke jalan” (take to the streets), with the intention to toppling a democratically-elected government.
Paulsen said Malaysian judgments had not moved on with the times and developments in other jurisdictions had not been taken into account.
He said the remarks by the Indian court revealed the sedition law could not be used to curtail civil liberties.
The courts have been keen to see the application of the sedition law from a government perspective, he alleged.
“The Indian judgment has given clear guidelines. However, in Malaysia, the definition of sedition is too wide and has made it easy for the prosecution to secure a conviction.”
V Anbalagan@FMT Reporters Online