The United Kingdom & Eire Malaysian Law Students’ Union (KPUM) condemns and notes with serious alarm the decision of the police to summon C4 Centre’s founding director, Cynthia Gabriel, in relation to a statement titled “Anti-Corruption Rhetoric Will Never Purify the Unelected Perikatan Nasional Government” issued on March 14th 2020. The statement questions the legitimacy of the present government led by Prime Minister Tan Sri Muhyiddin Yassin, and calls upon Malaysians to “stop legitimizing this unelected government”.
The right to freedom of speech and expression is the cornerstone of a healthy democratic society. Our Federal Constitution enshrines this right under Article 10(1)(a). The right allows citizens to freely express their opinions, and is of vital importance in holding accountable their elected representatives and others wielding public power. The rule of law requires any restrictions on our fundamental rights to be clear and narrowly defined, and to be necessary and proportionate in meeting a legitimate public interest.
Ms Gabriel has been summoned under section 4 of the Sedition Act 1948 and section 233 of the Communications and Multimedia Act 1998 (CMA 1998). These statutory provisions are deeply problematic for the reasons set out below.
Section 4 of the Sedition Act 1948
Section 4 of the Sedition Act 1948 criminalises the act of publishing ‘any seditious publication’. In the absence of a definition of “sedition” itself, “seditious” is widely defined — a publication has a “seditious tendency” if it has a tendency “to bring into hatred or contempt or to excite disaffection … against any Government” (Section 3(1)(a) of Sedition Act 1948). Upon conviction, first time offenders are liable to a fine not exceeding RM 5,000 or imprisonment for a term not exceeding 3 years or to both. For a subsequent offence, the maximum term of imprisonment is 5 years. The court may direct for the forfeiture and destruction of the ‘seditious publication’.
The concept of “seditious” is inherently oppressive, and indeterminate. The notion of sedition itself “was born in a time when the absolute right of the ruler was divine and could not be criticised, let alone opposed”.Sedition has no roots, and no place, in a democratic society.
Its vague definition is contrary to the rule of law. The indeterminacy of ‘seditious’ translates into a broad discretion for public authorities to intimidate, harass, and charge activists for criticising the government of the day. We highlight the grave record of abuse of powers under the colonial-era law– under the previous BN government, the Sedition Act 1998 was repeatedly used “to instill fear and silence in political opponents and critics”.As conviction only requires the publication to have a tendency to “excite disaffection” against the government, prominent human rights lawyers have noted that “this would mean that even if you ‘expose’ corruption or criticise a government agency – it could be sedition. Even if the words are true, that would be no defence because all the prosecution would look for is the mere tendency of sedition”.
Section 233 of the CMA 1998
Section 233 of the CMA 1998 criminalises the act of making comments which are “obscene, indecent, false, menacing or offensive in character”, and “with intent to annoy, abuse, threaten or harass another person”. Once convicted, the offender is liable to a fine not exceeding RM 50,000 or imprisonment for a term not exceeding 1 year or to both.
In a similar vein to the Sedition Act, section 233 of the CMA 1998 lacks a narrow and clear definition, contrary to the rule of law. Section 233 of the CMA 1998 is “deeply problematic for its over-broad definitions accompanied by heavy punishment that infringes upon the constitutional right to freedom of expression”. Further, “[c]riminalising content that could potentially challenge and attempt to hold the government to account is grossly disproportionate to any legitimate aim of protecting public order”.
The police have an appalling track record for using section 233 of the CMA 1998 to intimidate activists who have voiced out against previous governments. In 2015, the whistleblower website, Sarawak Report, was blocked for being critical of the former Prime Minister, Najib Razak.Other websites such as Tabunginsider, Medium, Asia Sentinel and Malaysia Chronicle have also been blocked under the CMA 1998. In 2016, Fahmi Reza was charged under this section for his post which depicted the former Malaysian Prime Minister as a clown.
More recently, Patrick Teoh was probed under this section after posting comments on the Johor Crown Prince.Similar to the instant investigation on Ms Gabriel, the police decided on 20 May 2020 to investigate Kuala Langat MP, Datuk Dr Xavier Jayakumar, under both Section 4(1) of the Sedition Act 1948 and section 233 of the CMA 1998. The investigation relates to Datuk Jayakumar’s video about the government and the one-day parliamentary sitting.
These statutory provisions are antithetical to our fundamental principles of freedom of expression, the rule of law, and democracy. Their abuse by the police to sanction the exercise of the constitutional right to free speech and expression creates a “chilling effect” which discourages individuals and organisations from openly criticising the government. Contrary to the rule of law, the broad definitions undermine the need for clarity and for narrowly prescribed and justified restrictions on our fundamental freedoms. Our democracy is threatened by the use of public power, through police action, to stifle citizens’ ability to hold their government to account.
KPUM demands that the Royal Malaysian Police immediately retract its summons against Ms Gabriel, and to cease its intimidation of individuals who exercise their constitutional right to freedom of expression. We further call upon the government to repeal the Sedition Act 1948 in its entirety, as well as section 233 of the CMA 1998. Their provision of excessive powers allowing public authorities to suppress speech and expression have no place in a democratic society. The exercise and protection of these fundamental freedoms are non-negotiable, and we condemn any attempt to stifle them.
On behalf of the Union,
Tan Kian Leong
Shukri Ahmad Shahizam
Deputy President 2019/2020
Vice President (Malaysia) 2019/20
Nur Kamilia Binti Rozlan
Human Rights & Activism Officer 2019/2020
Kesatuan Penuntut Undang-undang Malaysia di United Kingdom dan Eire (KPUM)/United Kingdom and Eire Malaysian Law Students Union.
 Focus Malaysia, “Cops to question C4 Centre chief for sedition over article”, 5 June 2020 [Accessed on 6 June 2020]
 C4 Centre, “Anti Corruption Rhetoric Will Never Purify the Unelected Perikatan Nasional Government”, 14 March 2020 https://c4center.org/press-statement-stop-legitimizing-unelected-government [Accessed on 5 June 2020]
 Syahredzan Johan” Sedition Act: An outdated colonial vestige, 24 February 2014 https://www.thestar.com.my/opinion/online-exclusive/a-humble-submission/2014/02/24/a-humble-submission-sedition-act [Accessed on 6 June 2020]
 Human Rights Watch,”Malaysia: Sedition Act Wielded to Silence Opposition”, 14 September 2014 https://www.hrw.org/news/2014/09/14/malaysia-sedition-act-wielded-silence-opposition [Accessed on 6 June 2020]
 Tan Yi Liang,” Lawyers on Sedition Act 1948: ‘Truth’ not relevant” 4 September 2014 https://www.thestar.com.my/News/Nation/2014/09/04/What-is-sedition [Accessed on 6 June 2020]
 Malaysiakini, “CIJ blasts continued use of Sec 233 of the CMA despite Saifuddin’s pledge” 6 June 2020 https://www.malaysiakini.com/news/528994 [Accessed on 6 June 2020]
 Steven Thiru,” Misuse of the Communications and Multimedia Act must end” 1 March 2016 https://www.malaysiakini.com/news/332239 [Accessed on 6 June 2020]
 Article 19, “Malaysia: Communications and Multimedia Act must be urgently revised” 24 March 2017 https://www.article19.org/resources/malaysia-communications-and-multimedia-act-must-be-urgently-revised/ [ Accessed on 6 June 2020]
Aliran,”Four rights groups slam arrest, remand of Patrick Teoh” 12 May 2020 https://aliran.com/civil-society-voices/four-rights-groups-slam-arrest-remand-of-patrick-teoh/ [Accessed on 6 June 2020]
 MalayMail, “Police to call Dr Xavier over alleged statement with elements of sedition” 20 May 2020 https://www.malaymail.com/news/malaysia/2020/05/20/police-to-call-xavier-over-alleged-statement-with-elements-of-sedition/1868083 [Accessed on 6 June 2020]