Arbitrary Sedition Act makes ‘promoting atheism’ a crime, lawyers explain

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Source: The Malay Mail Online

KUALA LUMPUR, Nov 25 — The Sedition Act could be used by the government against those who promote atheism in limited situations due to the law’s broad definitions and the current state of Malaysia, lawyers have said.

Civil rights lawyer Syahredzan Johan ― Picture by Choo Choy May

Civil rights lawyer Syahredzan Johan said there is no specific legislation that makes atheism an offence under civil laws, further arguing that the Sedition Act cannot be used against someone for being an atheist.

“Being an atheist is not seditious, especially if it is done in private.

“Spreading atheism may be deemed as seditious in certain circumstances, such as if it is done by insulting or undermining other faiths, especially Islam. But that is because the Sedition Act is so wide and arbitrary and can be used in many ways,” he said, adding that this was why the Sedition Act should be abolished.

Syahredzan had cited the Sedition Act’s Section 3(1)(d) where seditious tendency is defined as a tendency to “raise discontent or disaffection” among those living in Malaysia; and Section 3(1)(e) where seditious tendency is a tendency to “promote feelings of ill will and hostility between different races or classes of the population of Malaysia”.

But Syahredzan also pointed out that the act of promoting atheism would be just like the promotion of any other religion or belief system or political ideology, saying: “Because of what constitutes ‘seditious tendency’, any form of promotion or propagation, if done in a certain way, can be seditious. The problem does not lie with atheism or atheists, but with a law such as the Sedition Act.”

Surendra Ananth — Picture courtesy of Facebook/Surendra Ananth

Lawyer Surendra Ananth argued that the government cannot use the Sedition Act against those who promote atheism, as it is protected under the Federal Constitution’s Article 11(1) and Article 10(1)(a) which guarantee religious freedom and freedom of expression.

“Article 11 guarantees the right to propagate a religion. I do not think it is seditious. However if promoted amongst Muslims it could contravene the anti-propagation laws,” the Bar Council Constitutional Law committee co-deputy chair told Malay Mail Online.

Surendra explained that he did not see any connection between the promotion of atheism and the “seditious tendency” factors listed out in Section 3 of the Sedition Act, but said the ridiculing and insulting of other religions could be deemed seditious by the government.

“Besides, any ordinary law must be interpreted in favour of constitutional rights. If promoting does include ridiculing and insulting, then it might it cause ill will and hatred amongst different classes of people,” he said, referring to Section 3(1)(e) as a provision that the government may use.

“However, I am still against the use of the Sedition Act as I think the Act itself is unconstitutional,” he said.

While believing that insulting and ridiculing are part and parcel of expression and should only be subject to defamation court cases if at all, Surendra said the insult and ridicule of other religions in multi-cultural and multi-religious Malaysia that is currently facing an insidious rise of extremism “might cause public order concerns”.

“Again, I am against criminal action in such cases, but ridiculing and insulting other religions in the current state of society might not, in my view, attract constitutional protection. Though I hope one day society will be matured enough to accept it.

“I am assuming here, but if you go out and promote a belief which necessarily means asking people to not believe in a ‘god’, whichever form it may take, might spark extreme reactions from religious conservatives, leading to the possibility of hatred and ill will. Again my view is that this is wrong and unconstitutional.

“To be clear, even if it’s insulting I still don’t think it’s seditious. My view always has been that insults cannot be criminalised. I’m just assuming how the government might use it,” he said.

Andrew Khoo- pic drawn from FMT News

Lawyer Andrew Khoo cautioned against the argument that a person promoting atheism would be considered to have committed a sedition offence under Section 3(1)(e), noting that expressing an opinion that others may disagree with is not necessarily intended to cause ill-will or hatred.

“You have to be very careful about allowing too wide a definition. Otherwise it will be considered legislative overreach, that you are using a law that wasn’t intended for these things and you are stretching the meaning of the word to capture what it was never intended to do.

“You are criminalising things that it was never intended to be criminalised,” the Bar Council Human Rights Committee co-chair said.

Khoo said the government should “protect the right” to both be an atheist and promote atheism if it respects freedom of religion and freedom of expression.

“To be an atheist, it’s not breaking any law. To express views about atheism, that’s freedom of expression, what law are you breaking? There are no civil laws that you violate either by being an atheist or speaking in support of atheism,” he said.

Even under a 1988 civil legislation in Selangor, Khoo said the provision that bars the influencing of Muslims should only cover a “very direct attempt” to try and influence a Muslim.

“To me it still doesn’t cover the right to make a general comment or to speak generally about atheism even in favour or in support of it.

“Because it’s not about trying to influence a Muslim. So you have got to be very clear that it’s a general comment, you are not even talking in relation to Islam — you are just talking about atheism, you are not saying atheism is good, Islam is bad; you are just saying this is what atheists believe and things like that. So I don’t see anything wrong with that,” he said.

Under Section 4(1) of Selangor’s Non-Islamic Religions (Control of Propagation Amongst Muslims) enactment 1988, it is an offence to persuade, influence or incite a Muslim to be inclined towards any non-Islamic religion, to be a follower of a non-Islamic religion or to forsake or disfavour the religion of Islam.

On Thursday, deputy minister Datuk Asyraf Wajdi Dusuki claimed that atheism is unconstitutional and that the Sedition Act can be used against anyone who spreads atheism.