| Many jurists and scholars consider sedition properly to be an obsolete offence, one no longer valid in purpose or substance. Contemporary case law in common law jurisdictions has clearly established that only an intention to incite violent overthrow of lawfully constituted authority coupled with action(s) likely to achieve the prohibited result could constitute sedition, but even this narrowly defined offence has fallen into disuse. Laurence W. Maher concludes from his study of sedition in Australia that, “there is almost complete agreement in the common law jurisdictions that sedition should be made
obsolete.”[15] Lord Denning is less qualified in his remarks about the offence of seditious libel:“The offence of seditious libel is now obsolescent. It used to be defined as words intended to stir up violence, that is, disorder, by promoting feelings, of ill-will or hostility between different classes of His Majesty’s subjects. But this definition was found to be too wide. It would restrict too much the full and free discussion of public affairs...So it has fallen into disuse for nearly 150 years. The only case in this century was R. v. Caunt...when a local paper published an article stirring up hatred against Jews. The jury found the editor Not
Guilty.”[16][emphasis added]
In a decision of the Supreme Court of Canada, Mr. Justice Rand commented that the crime of seditious libel was founded in legal and social beliefs no longer held:“The crime of seditious libel is well known to the Common Law. Its history has been thoroughly examined and traced by Stephen, Holdsworth and other eminent legal scholars and they are in agreement both in what it originally consisted and in the social assumptions underlying it. Up to the end of the 18th century it was, in essence, a contempt in words of political authority or the actions of authority. If we conceive of the governors of society as superior beings, exercising a divine mandate, by whom laws institutions and administrations are given to men to be obeyed, who are, in short, beyond criticism, reflection or censure upon them or what they do implies either an equality with them or an accountability by them, both equally
offensive.”[17]Although there are some differences amongst scholars as to the exact origins of the offence, all agree that this offence came into being during a period when the divine right of rulers was not only accepted but believed to be necessary, when the rulers who dispensed laws were largely above question and criticism, and when criticism of rulers was considered sinful as well as unlawful. Some date the genesis of sedition from the Statute of Westminster, 1275, 3 Edw. I, c. 34. (repealed in 1887). De Scandalis Magnatum created penalties for publishing ‘false’ news or other statements that could create discord between the Ruler and his subjects. The language was broad and unrestrained, “...that from henceforth none be so hardy to tell or publish any false news or Tales, whereby discord, or accession of discord or slander may grow between the King and his people, or the Great Men of the
Realm.”[18]
Others date the original offence of seditious libel from l606, when the Chief Justice of the Star Chamber laid down in De Libellis Famosis, some defining characteristics of this offence. The Court of Star Chamber was created by Henry VII in 1487 to combat the evils of feudal anarchy and was the chief institutional tool by which the Tudors restored the authority of the national courts and repressed baronial disorder. One of the tools of the Star Chamber was censorship, a particular concern with the advent of printing. When the Court of Star Chamber was abolished in 1641, seditious libel continued as an offence in the common law courts. The language used in De Libellis Famosis is strikingly similar to Malaysia’s Sedition Act: intention was irrelevant as was absence of actual harm. Truth, according to Lord Coke, was not a defense because truth could be more injurious to the King or Ruler than
fiction.[19] In l606 seditious libel could be punished by imprisonment, fine, pillorying or loss of
ears.[20] These antecedents to the Sedition Act bestowed powers that were sweeping enough to be used arbitrarily by Rulers not accountable to ordinary citizens with none of the balancing of state powers and individual rights, nor the legal protections necessary to maintain that balance which have become cornerstones of modern democracy.The fact that sedition has often been used as a political tool and not for a legitimate public purpose is another factor contributing to its repudiation by common law courts. Authors, Gitobu Imanyara and Kibe Mungai, when reviewing Kenya’s now
repealed[21] Sedition Act, observed:"Sedition was always a political, rather than a criminal, offence. Thus, there was no vigorous effort on the part of the government to prove the culpability of an accused in
court.”[22] In England, sedition survived only as a common law offence of seditious libel and prosecutions since the Reform Act of 1832 have been rare. The last conviction in England for seditious libel occurred in
1909.[23] This was a prosecution of the printer of the Indian Socialist, a publication that advocated independence for India. The last prosecution for seditious libel initiated by the English crown was in l947 and this prosecution ended in an
acquittal.[24] In l991, a private individual sought to compel a magistrate to issue a summons for seditious libel and blasphemy based on the book Satanic Verses, against both the author, Salman Rushdie, and the printer. The Queen’s Bench Division, on judicial review of the magistrate’s refusal to issue the summons, found as a fact that Satanic Verses contained passages that promoted hostility and ill-will amongst the Queen’s subjects and had caused the breakdown of diplomatic relations between Britain and Iran, but did not disclose an intention to incite violence against constituted authority. The Court of Queen’s Bench unanimously upheld the magistrate’s ruling that the prosecution for sedition could not proceed. Lord Justice Watkins, giving judgment for the Court, relied on the statement of law contained in the decision of the Supreme Court of Canada in Boucher v. The
King[25] and stated that:“…the seditious intention upon which a prosecution for seditious libel must be founded is an intention to incite to violence or to create public disturbance or disorder against the sovereign or the institutions of Government. Proof of an intention to promote feelings of ill will and hostility between different classes of subjects do not alone establish a seditious intention. Not only must there be proof of an incitement to violence in this connection, but it must be violence or resistance or defiance for the purpose of disturbing constituted authority, meaning some person or body holding public office or discharging some public function of the
state.”[26][emphasis added] In Canada, no prosecutions for sedition have been initiated for over 50 years. The original Criminal Code sedition offence was based partly on the 1879 English Draft Code, itself a codification of the law of seditious libel prior to 1879. The last prosecution for sedition in Canada (Boucher v. The King) targeted a member of the Jehovah Witness religion, prosecuted for urging people to protest against the Quebec government’s ‘mob rule and Gestapo tactics’ by obedience to god. The Supreme Court of Canada set aside Mr. Boucher’s conviction and observed that the courts in all countries had rejected criminality based on the mere creation of ‘disaffection’, ‘discontent’, ‘ill-will’, or ‘hostility’.The Court stated:
“There is no modern authority which holds that the mere effect of tending to create discontent or disaffection among His Majesty’s subjects or ill-will or hostility between groups of them, but not tending to issue in illegal conduct, constitutes the crime, and this for obvious reasons. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence, of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with
illegality.”[27] In Boucher v. The King, the Supreme Court also rejected all of the definitions of ‘seditious intention’ found in Stephen’s Digest of Criminal Law, 8th ed. except where there was an intentional incitement to violent lawlessness against a constituted authority. Seditious libel as found in Stephen’s Digest of Criminal Law included actions:1. to bring into hatred or contempt, or to excite disaffection against, the King or the Government and Constitution of the United Kingdom, or either House of Parliament, or the administration of justice; or2. to excite the King’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State by law established; or3. to raise discontent or disaffection amongst His Majesty’s subjects; or4. to promote feelings of ill-will and hostility between different classes of such subjects, that is to vilify or bring into hatred or contempt or to excite disaffection or hostility against the Ruler or the administration of justice.Mr. Justice Rand, when rejecting the validity of sedition based on the creation of negative responses such as hostility, ill-will and hatred observed as follows:
“But constitutional concepts of a different order have necessitated a modification of the legal view of public criticism; and the administrators of what we call democratic government have come to be looked upon as servants, bound to carry out their duties accountable to the
public.”[28]
The leading decision on sedition in India reached a conclusion similar to that in Boucher v. The King. In Kedar Nath Singh v State of
Behar,[29] the Supreme Court found that without proof of “...acts that have implicit in them the idea of subverting the government by violent means”, the offence of sedition cannot be established. Chief Justice Sinha also eloquently concluded that the court, as the guardian of citizens’ rights, was duty bound to strike down unnecessarily restrictive legislation.“This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this
case.”[30]
In Australia, sedition, codified in 1920 as section 24C &D of the Crimes Act, has also fallen into disuse. 1986 amendments to these
sections[31] make intention a necessary element and require proof that the seditious act was carried out with the intention of causing violence or creating public disorder or a public disturbance. Notwithstanding these amendments, author L. W. Maher concluded: “…the law of sedition is anachronistic and an unjustified interference with freedom of expression and that abolition of sedition offences at both Commonwealth and State level is therefore to be preferred to any attempt to “modernise” the crime of
sedition.”[32]The last commonwealth prosecution in Australia occurred in l953 during what Laurence W. Maher described as the “anti-communist”
crusades.[33]
United States law has narrowed the offence of sedition to one in which there is an advocacy to use unlawful force coupled with the likelihood that such advocacy will produce the unlawful
force.[34] A recent U.S.
decision[35] interpreting the statutory offence of seditious
conspiracy[36] held that an intention to ‘overthrow’ the government coupled with an act of violence intended to achieve or contribute to the overthrow was not enough if the act of violence could not achieve the overthrow. The accused, in that case, were charged with seditious conspiracy alleged to have been committed by a number of means, including the murder of Meir Kahane and the planned assassination of Egyptian president Hosni Mubarak during his visit to the U.S. The accused apparently believed that the murder of Meir Kahane--rabbi and leader of a group opposed to Arabs living within the biblically defined borders of Israel--would be a blow against the West, and therefore would contribute to the overthrow of the U.S. government. The court dismissed the seditious conspiracy count based on the murder of Meir Kahane on the grounds that the murder of Kahane could not in itself further the goals of a seditious conspiracy and the fact that the accused believed it would was not determinative of the issue. The court concluded: “Were the rule otherwise, the seditious conspiracy statute would expand infinitely to embrace the entire agenda of anyone who violated it, whether or not that agenda also included an objectively non-seditious
plan...”[37] The original rationale for seditious prosecutions, namely to protect rulers from criticism and ridicule, no longer exists today. The offence of sedition (other than that involving incitement to violent lawlessness against constituted authority) has been resoundingly rejected in the jurisprudence reviewed as being incompatible with democracy and indeed antithetical to the rule of law. The same tests and considerations applied to the Malaysian Sedition Act would have the same result. The ambit of the offence of sedition involving incitement to violent lawlessness against constituted authority has not been extensively explored due, probably, to other criminal charges being laid when such elements are present. |
