Tuesday, March 31, 2009

The scope and application of the law of sedition

Disturbing the peace


The Star, March 31, 2009

A look at the scope and application of the law of sedition.

WHAT is sedition and what is not? This is the question on the minds of many people. Sedition is not like other offences which are committed from time to time by a broad range of people. It is a grave offence which embraces all those practices whether by word, deed or writing, which are calculated to disturb the tranquillity of the state and lead people to subvert the government.

The Sedition Act 1948 which was revised in 1969 provides for the punishment of sedition. The meaning of seditious tendency includes any attempt to bring into hatred or contempt or excite disaffection against the ruler or government or among the inhabitants. It is also about promoting feelings of ill will or hostility among different races or classes of population in the country or to attempt to alter by unlawful means anything established by law.

However, the earlier provisions were supplemented by a legislative exercise in 1970 envisaged by the white paper of the National Operations Council for further criminal sanction against any person who utters, prints or publishes words or statements that question any matter, right, status, position, privilege, sovereignty or prerogative established or protected in certain provisions of the Federal Constitution.

According to the then Attorney-General, the late Tan Sri Kadir bin Yusoff, this provision could have been incorporated in the Internal Security Act 1970, but it was considered desirable to extend the scope of what amounts to sedition. The result has been to limit, if not end, the similarity with English legislation.

Under English common law though, intention is the essence of the offence.

Therefore if the Act is done or the words are not used with such an intention, the offence of sedition would not be deemed to be committed, however defamatory the words may be.

On the contrary, this is not our position. Intention is irrelevant. Section 3(3) specifically provides that for the purposes of proving the commission of any offence under the Act, the intention of the person charged at the time he did or attempted to do the act is deemed to be irrelevant.

When statements are made pertaining to a ruler of a state, to the effect that the ruler could be sued in connection with the exercise of his powers in relation to the state government, the question that arises pertains to the nature of the offence committed.

Depending on the actual statements made and the message that in conveyed, it could be an offence of bringing into hatred or contempt or to excite disaffection against the ruler or even question the prerogative, powers or jurisdiction of the ruler.

The pending proceedings before the court will provide guidance in the future with regard to whether the statement made would constitute sedition or question the prerogative of the ruler under Article 181 of the Federal Constitution.

Until 1970, there were hardly any cases where the law on sedition had been tested in the Malaysian courts.

This is very much the case even today in relation to the sedition law as it exists, and the cases that have come before the courts over the years have usually been in relation to politicians as has been the case in other countries.

Article 181 provides that subject to the provisions of the Constitution, the sovereignty, prerogatives, powers and jurisdiction of the rulers as hitherto enjoyed shall remain unaffected.

It also provides that no proceedings whatsoever shall be brought in any court against the ruler of a state in his personal capacity, except in the Special Court.

Other instances

There have though been other instances where the words used touched on the subject covered by Section 152 of the Constitution which provides for the National Language to be the Malay language but with the caveat that no person shall be prohibited or prevented from using (otherwise than for official purposes) or from teaching or learning any other language.

In the case of Melan bin Abdullah vs Public Prosecutor in 1971, a speech had been reported in Utusan Melayu under the headline: Hapuskan sekolah-sekolah beraliran Tamil atau China di negeri ini. The sub-editor who used the heading was held to be guilty of sedition. This was soon after the amendments had been made.

However, some 10 years later, in the case of Public Prosecutor vs Mark Koding, a different view appeared to have been taken. In the course of his speech, the defendant, a Member of Parliament, had questioned the policy of the government in allowing Tamil and Chinese schools to continue in the country. He advocated the closure of Chinese and Tamil schools and the complete restriction of the use of the two languages on road signs.

Mohamad Azmi J. as he then was, took the view that such statements by themselves were not seditious.

Similarly, the call to allow road signs in other languages to be restricted was also not seditious, thus adopting what appears to be a more liberal approach compared to the Melan bin Abdullah case.

However, the Member of Parliament was nevertheless found guilty of sedition. This was because he had, after calling for the closure of Tamil and Chinese schools and restrictions on the use of these two languages on signboards, gone on to say that if the Constitution did not allow this to be done, the Constitution itself should be amended.

The public will no doubt await with anticipation and interest, the decision of the court on the words uttered and the context in which this was done.

The court is entitled to look at all the circumstances surrounding the statement made. As was said by Justice Coleridge in the old English case of King V Aldred decided a hundred years ago, there were times when a spark would ignite a magazine.

In doing so, his lordship went on to say that sedition law was a weapon that was not often taken down from the armoury where it was hung, but it was a necessary accompaniment to every civilised government. This is true even today.

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