The nine Australian men who created a stir during Sunday’s Formula 1 race in Sepang can be charged under one of several laws, but they can’t be prosecuted for wearing underwear bearing prints of the Jalur Gemilang.
Several lawyers have told FMT that Malaysia, unlike Australia, does not have a law that specifically criminalises desecration of the national flag.
“At best, we have the National Anthem Act, under which offenders can be arrested for not standing up when the national anthem is played,” said one of the lawyers, Rafique Rashid Ali.
He noted that the government once had a plan to amend the Penal Code so that it would cover desecration of the national flag. The proposed maximum punishment was a 15-year jail sentence.
“However, it was then withdrawn,” he said. Apparently the government decided that it would seek to amend another law for the purpose.
Rafique is of the view that the Australians behaved inappropriately. “Their action can be construed as desecrating the integrity of the flag,” he said. “This is a matter of decency, not so much of criminal intent or criminality.”
Another lawyer, Faiz Fadzil Noor, said the authorities could nevertheless use other laws to punish the Australians.
They could, for instance, charge them under the Penal Code for disruption of public order, he said.
On Monday, Sepang Police Chief Abdul Aziz Ali said the case would be investigated under Section 504 of the Penal Code for “intentional insult with intent to provoke a breach of the peace” and Section 14 of the Minor Offences Act for insulting behaviour.
Lawyer Faizal Abdul Rahman said it was now up to the Attorney-General to decide what charge or charges to bring against the Australians.
“The AG has to study the investigation papers and decide how their actions could, for example, be deemed as provoking a breach of the peace,” he said.
“Section 504 actually has a very wide interpretation. But we do not have specific sections to deal with flag-related offences.”
Faizal said he had yet to encounter a criminal case pertaining to treatment of the Malaysian flag.
Australia’s Flags Act states that the national flag “may be flown on every day of the year, provided it is treated with the respect and dignity it deserves as the nation’s most important national symbol”.
Australian police have said they would use tasers, pepper sprays or handcuffs against people who subject the flag to inappropriate use.
Sheith Khidhir Bin Abu Bakar and Ho Kit Yen