Why the need to abolish the sedition act? Given the current situation in our country, it seems that we may need such an Act more than ever. I know, by these two sentences, most people would be thinking this is going to be another UMNO bashing article but I beg to differ. The purpose I am writing this article is to dissect this act and allows you, my fellow Malaysian’s, who have yet to form an opinion in regards to this Act.
The problem I have found with the argument made by pro-sedition Act groups is that they’re argument is purely emotional. Their case is built on fear. Let’s face it, such arguments are quite compelling. After all, the Nazi’s used it to exterminate the Jews, the KKK used it to lynch African Americans and recently the Israeli used it as an excuse to wage war against the Palestinians. However, take a second and you’d realize, that after everything is said and done, the justification for their action was more often than not, found wanting. Hence, it is necessary for us, citizens of this great nation to nip this in the bud before it gets out of hand.
BACKGROUND TO THE SEDITION ACT 1948
The Sedition Act 1948 was introduced by the British to curb dissent against the formation of the Federation on Malaya. See, the formation of the Malayan Federation came into being after the idea of Malayan Union was opposed by some Malay leaders who were linked to the royalty, courtesy of feudalism that has been the practice for a long time. Hence, if the Malayan Union was formed, these leaders will lose their standing in society and the benefits that comes with it.
The alternative, was the formation of the Federation of Malaya. However, this received opposition from the communist. Now, think about this for a second. Most of the Malay elites at that time were involved in the administration of the state. Thus, a protest by them would mean a symbolic absence of Malay representatives. However, majority of the Chinese and Malay’s who were in support or were part of the communist movement in Malayan were of the peasant or working class. Hence, they held less political sway over the citizens of the then Malaya. Therefore in the eyes of the British, held less political value.
Also, 1948 was a mere 3 years after the end of World War 2. The world, was still on edge and has been battered pretty bad. Fear and sufferings were everywhere. Thus, any form of legislation, immaterial of how repressive it may be, was welcomed. So long as it gave the people a sense of security. Therefore, when the Sedition Act was introduced in Malayan, it wasn’t considered a big deal. Remember, most of the lawyers and politicians were also from the elites and were predominantly British educated. Thus, it surmised that this law was introduced to quell dissent coming from the communist.
However, after 1969, the Sedition Act was amended to be more in line with Malaysian values. Of course this time it was met with dissent as it was seen as a front to the principles of democracy i.e. freedom of expression. Mainly because the scope of the act had been expanded to include article 152, 153 and 181. Opposition parties criticized the amendment simply because they saw it for want it was, a repressive law that seemed to subdue their freedom to speak freely. Of as we know, the 69 elections was a bloody affair, with all kinds of racially motivated statements coming from both sides and as usual, the Rakyat were caught in the middle. Thus, despite the nature of the law, many would have seen it as a necessary evil. Again, fear politics in play.
PROVISIONS OF THE SEDITION ACT
Section 3 (1), defined seditious tendency as a tendency to:
(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;
(b) to excite the subjects of the 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.
Section 3(2) on the other hand, state the exception to this Act. This includes, section 3 (2)(a), whereby a person’s action will not be deemed seditious if the Yang DiPertuan Agong was mistaken or misled or as per section 3 (2) (b), which states an individual points out the errors or mistake in any government except those pertaining to section 3(1) (a).
Also, at this point it is also necessary to state that article 10 (2) of the federal constitution permits the federal government to pass laws that may restrict the freedom of speech or expedite in the interest of security of the federation. Also, Article 10(4) also states that “Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law”.
It is these two legislations that gives credence to the sedition law.
PROBLEMS WITH THE ACT
Many may argue that based on the Malaysian constitution, the parliament does indeed have the right to limit freedom of expression. And given the background, this is justifiably so. But, we should also not overlook the fact that this is a criminal law, first and foremost.
Any lawyer will tell you, for an act to be considered criminal, there must be two elements. The unlawful act or the actus reus and the mental element, the mens rea. Only, and only when these two element occur simultaneously, is an action considered criminal. This is called the contemporaneity rule.
For example, Sir Edward Coke defined murder as “an unlawful killing of another human being with malice aforethought in the Queens peace’. This definition still holds true today. Therefore, the criminal acts for murder are the unlawful killing, the victim must be a human being and it must be done during the time of peace. The mental element is malice aforethought or intention. So, if the accused commits an act of killing with all the above elements, then he is libeled to be charged with murder.
However, when it comes to sedition, the act is clear. As long as someone says, does or publishes something that fits the description of section 3(1), they are immediately guilty. This is because, in the case of PP v Mark Koding (1983), the courts have ruled that the intention to cause harm is not a prerequisite. In other words, the intention of the individual in uttering those words are irrelevant. This contradicts section 3(2) of the Act for obvious reasons. If the intention of the said individual was to point out a mistake made by the government, it therefore becomes irrelevant. Hence, to me, section 3 (2) becomes redundant.
Another issue is the word seditious tendency, what is it’s definition? The very term tendency, in itself requires a discussion on the mental element of the accused. In other words, did the accused commit the said seditious act with the specific intention of exciting the public to revolt against a lawfully elected authority? Furthermore, in the case PP v Fan Yew Teng, 1975, the courts ruled that a definition of seditious tendency is not required. This was affirmed in the 1979 case of PP v Oh Keng Seng.
Thus, the national harmony act, which would replace the sedition act would be introducing the elements of intention and harm. The two very crucial elements that this law lacks.
Also an issue with this law is the requirement being placed on the prosecution. As any defence lawyer would tell you, the burden of proof is higher on the prosecution as their case involves a citizen, whose rights are guaranteed by the federal constitution losing his liberties. Therefore, the burden of beyond reasonable doubt is a justifiable standard. However, under this law, such a threshold does not exist. In fact, the prosecution does not even have to proof that the accused words did in fact cause actual harm, but he mere said those words. Therefore, one begs the question, if no harm was caused, what is he criminally liable for? What crime has he or she committed?
Lastly, the article 10 which guarantees freedom of expression, assembly and association is caveated as stated above by subsections 2 and 4. It has been argued by Human Rights advocates that these subsections lower the legal standard on passing such laws that inhibits the aforementioned freedoms. This is because the standard is not an objective one. This means there is no way of saying if the restrictions imposed by the parliament is actually necessary as there is no objective manner to ascertain it. Also, there is no objective means to test if there is a need for such restriction. Instead the said restriction can be imposed if the parliament deems it necessary.
This becomes a problem if our parliamentary composition is akin to that of pre-2008, where the government enjoyed a 2/3rd majority, thus, allowing to run riot on the federal constitution if it feels like doing so. Also, parliamentary voting in our country requires that its members vote along party lines. Hence, the party enjoying the majority can pass any legislation restricting this very freedom if it feel threatened. Again, fear.
The number of people being charged under this draconian act since March 11th 2014 has been steadily climbing. The number today is at 15 and it doesn’t seem to be stopping anytime soon. In fact, some facets of this sudden increase in prosecution has reached a level bordering sheer stupidity. Case in point, the charge levied against the much loved Associate Professor Azmi Sharom or the much respected activist, Haris Ibrahim. To make matters worse, none of them has a defense, due to the nature of this law. How is it that someone convicted of murder, may raise the defense of manslaughter, for example, but someone convicted of sedition has no defense to rely on?
Therefore, it is pertinent that we as citizens of this great nation stand up against the tyranny being levied against us. Let us come together and stop this, before the number of people being charged under Najibs’s “Ops Kangkung” turns into Mahathir Ops Lalang.