Police face-off Bersih protestors

The current session of the lower house (Dewan Rakyat) of the Parliament of Malaysia has just adjourned until mid-May. During that session, international attention focussed mainly on two issues, both of which entailed tension within, and possibly the collapse of, the Pakatan Rakyat (“PR”) Opposition alliance: the fate of jailed Opposition leader Anwar Ibrahim, now serving his second sentence for “carnal intercourse against the order of nature”; and the possibility (now postponed) that the federal Parliament, at the insistence of PAS, the Islamic opposition party and PR component, would legislate to permit hudud punishments (including amputation, stoning and crucifixion).

Less attention was given at the time to the passage through the Dewan Rakyat of laws that clearly demonstrate renewed efforts to entrench authoritarian rule in Malaysia, although that is now changing. When placed alongside the authorities’ palpable disregard for existing legal protections for citizens who engage in democratic criticism and dissent, as we see in the crackdown on Malaysians who express dissatisfaction with Anwar’s conviction, it now seems that Malaysia is experiencing not just a return to rule by authoritarian laws, after a brief but perhaps illusory respite, but also rule by authoritarian lawlessness.

Three and a half years ago, to widespread amazement and acclaim, Malaysian Prime Minister Najib Razak (PM Najib) announced his government’s intention to put Malaysia more firmly on the path to democracy and respect for human rights. He proposed to do this by ending the legal fiction that Malaysia was in a state of emergency, and repealing the draconian laws that had caused Malaysia to feature so often at the lower end of international human rights rankings. To that end, amongst other legislative measures, from September 2011 to the middle of 2012 his government did the following. It repealed the Internal Security Act (“ISA”), which had permitted detention without trial and had often been used against legitimate political opponents rather than suspected terrorists, and replaced it with the Security Offences (Special Measures) Act (“SOSMA”), a law that substituted preventive detention with a shortened period of investigative detention followed by either a criminal trial or release of the suspect, and specifically provided that no one could be arrested solely for political belief or activity. The government liberalised print media laws by removing the requirement for annual renewal of newspaper licences that had contributed so much to self-censorship, and by restoring the power of the courts to review government decisions to revoke or suspend printing and publication licences. And it replaced the section of the Police Act that mandated police permission (rarely granted to government critics) for public gatherings with a Peaceful Assembly Act (“PAA”) that purported to recognise and regulate the constitutional right to freedom of assembly. There was also some relaxation of the laws prohibiting student politics.

In July 2012 PM Najib also promised to repeal the Sedition Act – feared by Opposition politicians, journalists, social activists and progressive lawyers because of its nebulous definition of “seditious tendency” and the government’s well-documented proclivity to use it to silence unwelcome criticism – with a more benign sounding “National Harmony Act”.

Malaysian’s initial enthusiasm for PM Najib’s reforms soon turned to disappointment and then shock and condemnation. The more hard-line Malay-supremacists within his own United Malays National Organisation (“UMNO”), and the assorted ethno-nationalist and Islamist vigilante groups that hover on the fringes of the party, lamented the loss of the ISA and openly speculated that without preventive detention and the Sedition Act, there would be no way to preserve the sanctity of Islamic institutions, the supremacy of the Malay Rulers and the sovereignty of the Malay race (the concept of Ketuanan Melayu). On the other hand, progressive and democratic voices in the Opposition PR coalition, civil society, journalists, academia, and the Malaysian Bar, protested loudly and clearly that the law reforms were a fraud: SOSMA replaced detention without trial with procedures that ensured detention without an adequate trial; the PAA placed more restrictions on public gatherings than the law it replaced; liberalisation of the media laws barely scratched the surface of the problem of direct and indirect government interference with the press; what little was revealed about the proposed National Harmony Act suggested it would be simply a rebranded Sedition Act; and the UMNO-led government apparently had no intention of removing other repressive laws such as the Official Secrets Act and the Societies Act, nor – perhaps most importantly of all – of cleaning up the deeply flawed electoral system that has ensured its own repeated return to power since independence from Britain in 1957.

That debased and discredited electoral system delivered another UMNO victory in the May 2013 general elections, with the opposition winning the popular vote (50.9-47.4%) but UMNO and its Barisan National (“BN”) coalition partners retaining control of the Parliament (133-89 seats). In the aftermath of the bitterly fought election, Najib’s ostensible agenda of democratic transformation was trounced by embattled UMNO warlords fearful of losing power in the next election cycle and needing to shore up electoral support by appealing to their ethnic powerbase in terms of UMNO’s historic mission to rescue Malays from the threat of immigrants, infidels and other outsiders.

Elsewhere I have explained how in the aftermath of the 2013 election UMNO revived and strengthened criminal provisions in the Penal Code and the Prevention of Crime Act (“PCA”) to prime them for use against political opponents and socio-political activists and critics, under cover of combatting both ordinary crime and local and international terrorism. Crucially, the 2013 amendments to the PCA reintroduced preventive detention. The Bill for a Prevention of Terrorism Act (“POTA”) that has received approval in the Dewan Rakyat on 7 April also permits 2 year periods of preventive detention, and, like the old ISA and the amended PCA, ousts the jurisdiction of the courts to review detention decisions except on narrow procedural grounds. Given the authorities’ well-documented track record (chronicled in the annual reports of domestic and international human rights bodies) of using criminal and anti-subversion laws against critics who are not by any sensible definition either “criminal” or “terrorist”, the combined effect of these legal changes is ominous for democracy. The new criminal-anti-terrorism regime is complex and convoluted and requires separate treatment. This comment will confine itself to consideration of the Bill to amend and extend the Sedition Act.

Amanda Whiting is a legal historian at Asian Law Centre, The University of Melbourne. She is writing a history of the Malaysian legal profession, and a separate but related history of sedition in Malaysia. This article is part one of a three part piece analysing the Bill to reform the Sedition Act. Part 2 and Part 3 are available HERE and HERE.