It’s time to repeal the Sedition Act
7 June 2012
The Sedition Act has reared its ugly head again. This time it is against Irene Fernandez and former Perak Menteri Besar, Nizar Mohamed. We have seen how the Sedition Act was used against Karpal Singh, a prominent lawyer and politician, when he was charged for insulting the Sultan of Perak for saying that His Majesty should not interfere with matters concerning the state and that he can be sued for doing so.
Jeyaseelen Anthony, CPI
Some may wonder what sedition is all about as the word sounds very serious and terrifying. No doubt it is a serious and terrifying offence as one may be imprisoned for merely voicing out different views and opinions. Worst still one may even be branded as a criminal, not for committing crimes like theft and murder but by only having different views or opinions that may be interpreted as being anti-establishment by the powers that be. The prime minister has announced recently that the Sedition Act will be reviewed. This article posits that the Sedition Act 1948 should not be reviewed but repealed. The question is why?
I say this because, any piece of legislation which imprisons people for holding different views and opinions is to say the least, draconic. Such a law should not be a part of any legal system. To understand why this is so, one needs to inquire into history to look at the origins of the offence of sedition.
The offence itself is made in England. It is part of the common law of England. It was created to protect the British monarch and the British Empire from being criticized or vilified. The law on sedition came about during a period when kings and queens were believed to have divine powers and they were believed to be god-sent and as such the laws dispensed by them were unquestionable and criticism of rulers were seen as sinful and unlawful. Today, this belief is no longer true and is seen as foolish. Therefore a law which was created with such a purpose in mind may not be suitable or relevant in present times.
The common law provides that one is only deemed to have uttered or published words which are seditious if those words incite people to violence. Therefore words which do not incite others violence does not amount to sedition. Although this was the case in Britain, its colonies were visited with legislation against sedition which was more draconian. In India for example the British colonial courts through several cases decided that the common law on sedition as applied in England will not be applied in India. That means words which merely criticized the British colonial government in India over its unfair policies and practices amounted to sedition.
That explains why prominent Indian freedom fighters and nationalist like Mahatma Gandhi, V.O. Chidambaram Pillai and Balgandhar Tilak were arrested charged for sedition for speaking against the British in India. Mahatma Gandhi for example was imprisoned several times after being convicted for sedition. The intention of the British was clearly to suppress and punish per se any individual who attempts to create feelings of disaffection, hatred or contempt to its rule, irrespective of the whether or not disorder follows or is likely to follow. Clearly, this was the most convenient way to successfully prosecute freedom fighters and nationalist. The crime of sedition was the most effective weapon used by the British to suppress dissent and to fulfill its colonial agenda in India. A further qualification of incitement to violence and public disorder to prove the offence of sedition would have definitely been an hindrance.
The law on sedition that was applied in India is the same as ours in Malaysia.
The Sedition Act 1948 was enacted by the British to suppress communist elements within the Communist Party of Malaya and its propaganda which was active in Malaya during the emergency period. The communist officially surrendered to the Malaysian government in 1989. Although communism is no longer a threat, nevertheless the Sedition Act has been used against members of the opposition, Members of Parliament, journalist and other NGO leaders pursuing campaigns that imply some criticism of the government policies and its institutions. Some of these individuals have been fined and one occasion even imprisoned under the Sedition Act. The current Chief Minister of Penang, Lim Guan Eng for e.g. was charged and convicted for sedition and was imprisoned.
The British left Malaya in 1957 however the Sedition Act never left with them. It was actually adopted into the Malaysian legal system by a constitutional amendment. It is unfortunate that we are still being dictated by colonial laws like the Sedition Act, which is considered obsolete in many commonwealth countries due to its history of being an instrument of oppression. The Sedition Act is a piece of legislation that can be easily abused and manipulated by the powers that be because of the uncertainty contained in its provisions. The provisions of the Act are couched with archaic and vague language in particular Section 3(1) (a) – (f) which lays down the situations where words can come within the meaning of ‘seditious tendencies’. They are as follows:
(a) bring hatred or contempt to the government or to excite disaffection against any ruler or against any government.
(b) to excite its subjects to procure the alteration of the government by unlawful means
(c) to bring into hatred or contempt or excite disaffection against the administration of justice
(d) to raise discontent or disaffection amongst the people
(e) to promote feeling of ill-will and hostility between the different races
(f) to question any matter, right, status, position, privilege, sovereignty or prerogative protected by the Federal Constitution.
The uncertainty of its provisions is implicit in words like “bringing into hatred or contempt or to excite disaffection against any ruler or against any government” in Section 3. The language used here is broad and vague enough to catch anything and everything particularly the tendency to question or criticize any government about their policies or actions. There seems no line drawn between legitimate criticisms and criticisms that lead to incitement to violence and disorder. It seems that any criticism aimed at any government or its institutions are capable of having seditious tendencies under the Act.
Of grave concern is the fact that the Act can be used quiet easily to stifle legitimate criticisms against the government and its institutions. Cases have shown that this is possible. For e.g. Dr Ooi Kee Saik a opposition politician, was charged and sentenced to pay a fine under the Sedition Act for having lamented during his speech about the domination of one particular race (the Malays) in the army, police, educational institutions and business and that these policies do not augur well with the government’s policy on racial integration and he accused the government of gross partiality in favour of one race. The court found that the issues raised by Dr Ooi amounted to bringing the government into hatred or contempt, or exciting feelings of disaffection against the government.
It is clear that Dr. Ooi was only calling for greater racial integration between the various races in Malaysia in order to prevent racial imbalance in the institutions of government and that he was only pointing out to the government that they should do away with policies that do not promote racial integration which is a recognized objective of the government. He did not incite any members of his party or the general public to violence. In fact many government ministers today have time and again called on the government to maintain better racial balance in the various institutions of the government. It is difficult to understand how Dr Ooi’s statements could be considered as seditious.
The wanton use of the Sedition Act can also be seen in the prosecution of Param Cumaraswamy, a prominent lawyer and a human rights activist, who was charged for having uttered seditious words at a press conference, where he made statements calling upon the Pardons Board to recommend to the King that the death sentence of a man charged for possession of a firearm be commuted to life imprisonment as it had done in another more serious case, where the accused a influential politician and a serving Minister was guilty discharging a firearm and committing murder. The accused also urged the Pardons Board to exercise their powers fairly and uniformly so that people would not be made to feel that the Board was discriminating between the rich and the poor in terms of severity of sentence.
The prosecution alleged that the utterance of these words above by the accused have a tendency to raise discontent or disaffection amongst the subjects of the Yang Dipertuan Agong or any ruler of any state and to bring into hatred or contempt or to excite disaffection against any ruler or against any Government.
Param Cumaraswamy, was acquitted and discharged after being called to enter his defense on the grounds that the alleged seditious statements did not have the tendency to incite or to raise disaffection among the people and it did not refer to the King but only to the Pardons Board. In hindsight, Param Cumaraswamy should not have been prosecuted in the first place since it is obvious that he was only seeking reprieve for his client by calling on the Pardons Board to act according to good conscience so that it would not be seen to be discriminatory. His plea was for a good cause and as such there was nothing seditious in his plea.
Even more worrying is the fact that the truth or falsity of the words uttered or written, are immaterial and will not provide a defense. Even if the words are uttered by the speaker with the most, noblest intention again this will not provide him with a defence. It is therefore an absolute liability offence where intention is irrelevant. In Public Prosecutor v Mark Koding, Justice Azmi Kamaruddin in the course of his judgment said:“..it is immaterial whether the accused intention or motive was honorable or evil when making the speech”
All the judge has to do is to see whether the words are likely to create disaffection against the government, the ruler or the people. If in his honest judgment he finds it is likely to do that then the statement is seditious. The Malaysian courts have adopted the meaning of “disaffection” in the Australian case of Burns v Ransley, which means disloyalty, enmity and hostility. In other common law jurisdictions like Canada, Australia and India it has been established sedition could not be established without proof of acts that have implicit in them the idea of subverting the government by violent means and inciting others to violence and disorder.