Wednesday, 2 April 2014

Disturbing legal implications on sedition and 'fatwa' in Malaysia

Kassim Ahmad & Karpal Singh Two recent cases raise the issue of what amounts to sedition and why one can’t question or challenge a ‘fatwa’.

THE recent conviction of Karpal Singh under the Sedition Act and the charging of Kassim Ahmad under the Federal Territories Syariah offences law raise some disturbing questions with serious implications as to where we are headed as a democratic nation.

First, let us look at the Sedition Act. The trouble with this law, a remnant of British colonialism, is two-fold. First, its basic premise is that criticism of authority should be controlled. This in itself is already an affront to democracy.

Second is its open-ended nature. Just what exactly amounts to sedition, for example. However, up until the Karpal Singh case, I thought there was one defence in the Sedition Act that was pretty strong.

Something is not seditious if you are pointing out that the object of your criticism has done something wrong, especially in the context of their constitutional limitations. This appears so clear to me that it seemed unlikely any court could find a way around it.

Alas, that is exactly what seems to have happened to Karpal. He basically said that the decision made by the Sultan of Perak of choosing a new Mentri Besar for the state in 2009 could be questioned in court.

I can’t for the life of me see what is seditious about that. Is the Sultan limited by the Constitution and the law in the discharge of his powers? Yes, of course he is. And if there is a dispute as to whether he acted lawfully or not, could he not be questioned? Again, of course he should, for we live in a constitutional and not an absolute monarchy.

And lastly, if there is to be a questioning of the acts of a member of the royalty, is there a lawful manner with which this can be done? Again the answer is yes, because we have the Special Court which was designed specifically for the royals and inserted into our Constitution by the Government.

Even within the authoritarian nature of the Sedition Act, there seem to be limits as to what can be deemed seditious. I thought those limits were clear enough. It appears that I am wrong.

What is of concern is that even when an act clearly falls within the allowable limits of a law, this does not appear to make any difference at all. Thus, the reach of a poor law becomes even greater and all that much more oppressive.

The second thing I want to talk about is the charging of Kassim Ahmad. This case raises some serious problems with some of the Syariah laws we have in this country.

According to the Syariah Offences law of the Federal Territories, it is an offence to question and speak in contradiction to a fatwa made by the mufti.

This fatwa need not be gazetted, that is to say made into law, just its mere exclamation is enough to give it weight of law. Needless to say, fatwas which have been gazetted can’t be questioned either.

Firstly, one wonders why one can’t question or challenge a law? If a fatwa is gazetted and made into law, what makes it different from any other law? Why can’t it be challenged? I can criticise the Contracts Act so why can’t I criticise any other thing which affects my life?

But what is really disturbing is the fact that a fatwa, which is after all merely an opinion, can carry the weight of law even without going through the legislative process of debate and voting. This in effect means that one person’s words suddenly become akin to a law for we cannot challenge it and if we do we can face a fine and jail.

This is frightfully undemocratic and can lead to some horrific scenarios. What if a mufti passes a fatwa saying that any sort of dissension against the civil government is wrong?

According to the Federal Territories law, any challenge of fatwa can be punished. What kind of democracy are we living in if a person’s statement by itself can have such authority?

Much has been said about how Malaysia is edging towards a more liberal and open democracy. Laws have been repealed or changed and steps (albeit baby steps) have apparently been taken.

What these two events show is that there are still some very undemocratic laws in existence, they are still being used and any hope that we are becoming more democratic is hopelessly naïve.

Brave New World by Azmi Sharam

> Azmi Sharom (azmisharom@yahoo.co.uk) is a law teacher. The views expressed are entirely the writer’s own.

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