WE refer to an article by Boo Su-Lyn on the Malay Mail Online dated 23rd September 2016. Entitled “Being insensitive isn’t a crime”, she sets the chronology of events by emphasizing on – as what the pro-liberal news portals are doing – the arrest of Sidek Kamiso, a former journalist.
He is a suspect whom is believed to have breached the law under Section 233(1)(a) of the Communications and Multimedia Act 1998 (CMA 1998) for ‘improper use of network facilities or network service, etc’. Jeff Ooi, a Bukit Jelutong MP from DAP was also arrested for the similar offense.
This regrettable incidence follows the posting of Sidek Kamiso on his Twitter account which reads “Someone who made his career out of selling air jampi for any illness succumbed to his illness in a modern hospital in San Francisco. #irony”.Sometime after the posting was made, Jeff Ooi retweeted with the remark “Adios Haron Din. Let there be peace”.
Undoubtedly, the original Tweet was referring to the late Tuan Guru Haron Din in the context when the statement was made and its reference of a particular detail contained, which is of course not by chance.
Informational social influence
Unsurprisingly, Boo would set the scene which appears as nothing less than begging for mercy and play of sympathy in beginning her article alleging that the act conducted by the police was an “unnecessary, heavy-handed manner that made the police look like thugs”. Some columnists even accuse the authorities as committing “police bullying”.
Observing how intense the news reports and the columnists have been focussing on the instance of arrest and trying to gather public sympathy having complete disregard to what actually triggered such incidence, the public should be disappointed.
This is no different from a strategy known as informational social influence. It was stated that “we conform because we believe that others’ interpretation of an ambiguous situation is more accurate than ours and will help us choose an appropriate course of action”.
The pro-liberal news portal and the likes of Boo intend to impose on the public perception that the problem, if there is any – that the arrest is more serious thus deserving attention and public condemnation than the incidence which previously occurred leading to the arrest which was insulting the late Tuan Guru Haron Din, a respectable religious scholar across nations.
As a result, we observe the netizens and the public’s attention being diverted to the alleged act by “thugs” and of “police bullying” and then these reporters and columnists allow the natural prejudice of the public to direct the discourse without having sense of responsibility and integrity. Now the public are ever confused, acting upon misinformed knowledge.
Comparing Section 233 of the CMA with Section 4 of the Sedition Act
The way she conveniently left out the full text of Section 233 especially paragraph (1) and the way she selectively recite the words under the Section, invites us to question her motive and genuineness of her entire article.
Section 233 CMA 1998 states that;
Improper use of network facilities or network service, etc. 233.
(1) A person who—
(a) by means of any network facilities or network service or applications service knowingly—
(i) makes, creates or solicits; and
(ii) initiates the transmission of,
any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person;
(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address, commits an offence.
(extracted from the CMA 1998)
Furthermore, Boo attempts to compare between the communications made under Section 233(1) of the CMA 1998 and the concept of “hate speech” under Sedition Act 1948. On this, Suaram claims that the authorities treat both forms of communications under these two Acts of Parliament as similar.
In order to analyse Section 4 of the Sedition Act, one needs to refer to Section 3 of the same Act as to what constitutes a ‘seditious tendency’, a discourse which is conveniently left out by Boo.
Seditious tendency
3 (1) A “seditious tendency” is a tendency—
(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;
(b) to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established;
(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;
(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State;
(e) to promote feelings of ill will and hostility between different races or classes of the population of Malaysia; or
(f) to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution.
(extracted from the Sedition Act 1948)
One may conclude that there is a difference between the communication captured under Section 233(1) of the CMA 1998 and the “hate speech” under Sedition Act 1948 in terms of their nature and seriousness of the communication. By such difference, it is befitting to say that both sections are targeted at different kinds of communication or speech, which we believe the “hate speech” would be of more serious cases.
Therefore, would the attempt by Boo and Suaram to assert an impression that Section 233(1) is wrongfully enforced as a back door to curb with “hate speech” be considered wrongful? Yes.
And, would the attempt by Boo and Suaram to paint an impression that the police are treating the Tweet by Sidek Kamiso and Jeff Ooi as “hate speech” be considered wrongful? Yes.
It is because the police do not enforce the law under Sedition Act 1948 but instead under CMA 1998.
But do the police conduct the arrest and investigation based solely on the provision of CMA 1998?
Comparing Section 233 of the CMA with Section 298A of the Penal Code (PC)
It is reported that Jeff Ooi is investigated under Section 298A of the PC and he is also being investigated under Section 233 of the CMA. What does this imply?
It means that the investigation under Section 298A of the PC is paramount and would possibly constitute the main charge. We believe that Sidek Kamiso should have also been investigated under both Sections and not just Section 233 of the CMA.
So what does Section 298A say?
Causing, etc., disharmony, disunity, or feelings of enmity, hatred or ill-will, or prejudicing, etc., the maintenance of harmony or unity, on grounds of religion
298A. (1) Whoever by words, either spoken or written, or by signs, or by visible representations, or by any act, activity or conduct, or by organizing, promoting or arranging, or assisting in organizing, promoting or arranging, any activity, or otherwise in any other manner—
(a) causes, or attempts to cause, or is likely to cause disharmony, disunity, or feelings of enmity, hatred or ill will; or
(b) prejudices, or attempts to prejudice, or is likely to prejudice, the maintenance of harmony or unity,
on grounds of religion, between persons or groups of persons professing the same or different religions, shall be punished with imprisonment for a term of not less than two years and not more than five years.
Therefore, one could derive that the tweet by Sidek Kamiso and retweet by Jeff Ooi are more serious than what Boo describes as “If being offensive and annoying someone is a crime, then the police can start by locking up those who called me a “b***h” or a “s**t” because of my writings, or pretty much everyone else in the country who’s probably annoyed at least one person in their lifetime“.
Boo, a drama queen, is being too naive in illustrating what the provision is allegedly targeting. Such overdramatic illustration is nowhere near the instance which actually happened concerning the Tweet and Retweet as they were made against a prominent religious scholar and a former leader of an Islamist political party, along with the attempt to associate maliciously the late Tuan Guru Haron Din with his religious practices and alternative treatment by the word “air jampi” and to some extent his religion, Islam, a faith of which has the majority of believers in this country.
Therefore, wouldn’t it fit under Section 298A almost perfectly to cause, or attempts to cause, or is likely to cause disharmony, disunity, or feelings of enmity, hatred or ill will? Yes.
And does it appear similar or nearly similar between affecting a larger population of Muslims and Islam instead of a person being called “b***h” or “s**t”? No.
Not to mention, careful observation of the two provisions Section 233(1) of the CMA and Section 298A of the PC will transpire that the latter requires consequences of the communication or statement, by word or written, which is absent in the former. Section 233(1) is concerned only on the character of the communication or statement made, whether it is”obscene, indecent, false, menacing or offensive” with “intent to annoy, abuse, threaten or harass another person” and it is not concerned on whether the person is in fact annoyed, abused, threatened or harassed.
Clarification on the arrest of Sidek Kamiso
Further, since these perpetrators are being – for Sidek Kamiso’s case, should be – investigated under Section 298A of the PC, there shall be no issue whether the police needs a warrant of arrest. As clearly provided pursuant to the Third Column of the First Schedule under the Criminal Procedure Code (CPC), the police may arrest a person for the offense under Section 298A without a warrant. Meaning to say, it is a seizable offense and the police have the power under the CPC and the Police Act. Period.
Even if Sidek Kamiso’s arrest was executed only for the offense under Section 233 of the CMA, the law on the legality of arrest is very clear even though there is no warrant.
In the case of PP v Audrey Keong Mei Cheng 1997 4 AMR 358, the learned Registrar (acting as Magistrate) had rejected the application to further detain the Respondent on the ground that her arrest was unlawful. In upholding the submission of the learned DPP that at the stage of proceedings under Section 117 CPC, it was not the duty of the Magistrate to question the legality or otherwise of the arrest, Shaik Daud, JCA said (at p. 3589): “On our perusal of the provisions of Section 117 of the CPC we could not find anywhere in that section to show that before a Magistrate can act under that section the Magistrate has to be satisfied on the legality or otherwise of the arrest. We are of the view that at that stage of the proceedings the Magistrate is not to concern herself or himself on the issue of legality or otherwise of the arrest. It is not for the Magistrate to decide on the legality or otherwise of the arrest. To do so would require the Magistrate to embark on an inquiry which may in turn necessitate the calling of witnesses. That, to our mind, is not the purport of Section 117 of the CPC”.
So why are they making a fuss over such an issue? It is because technically and legally, the law is clear and there is no issue on the legality of the arrest but they attempt to sway the public’s emotion and prejudice towards targeting and aiming the police as acting like “thugs” and bullies by narrating that the police came in early morning and took Sidek Kamiso all the way from Petaling Jaya to Johor Bahru.
Alternatively, one with a sane mind would agree that this is the very character of law enforcement bodies as they are committed to ensuring public security and maintaining social harmony at all times without reservation. Further, it would be a mockery of justice and an evidence of ineffective legal system if the enforcement is delayed and we certainly do not wish such weakness to exist in our enforcement bodies.
Respect the sensitivity
Boo and the liberals are frequently being insensitive and showing disrespect for the late Tuan Guru Haron Din and to Muslims in general. Definitely, he had set a very high par for the Muslims in this country to follow and he had a clear vision on his cause – with PAS – to pursue and preserve the sanctity of Islam as the religion of the Federation throughout his life time.
Instead of acknowledging such sensitivity and respecting it, Boo demanded that we change our societal norms in revisiting what statement or communication constitutes offensive or otherwise in character. Boo deems insulting words against and ridiculing a person – and to some extent the religion of the person – especially on the grounds of religion are not fatal to the social harmony and unity of a multicultural society.
The instance of Sidek Kamiso, DAP’s Jeff Ooi & Ramasamy, Nawamee and Siti Kassim are proofs that our society is decaying into an uncivilized manner in public sphere. Instead of asking Muslims to be less sensitive, maybe it is time to show us some respect.
Danial Ariff Shaari & Muhammad Akmal Abdul Ghani
I-Peguam Activists
