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| IV MALAYSIAN NATIONAL LAW |
| IV.1 History of the Sedition Act, 1948 of Malaysia |
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The
original Malaysian Sedition Act was adopted in l948[38]
by the British colonial government to deal with threats precipitated by the
‘communist insurgency’. When Malaysia gained its independence on August 31st,
l957 the Sedition Act continued as a Malaysian statute by the operation
of Article 162(1) of the Federal Constitution (the Constitution).[39]
Post
independence Sedition Act amendments, adopted during the State of
Emergency declared May 15, l969,[40]
criminalized a broader range of expression than the original Malaysian Sedition
Act. During the 22 months that
Parliament was suspended, many statutes, including the Constitution were
amended to give the governing council even greater powers to prevent rebellion
and suppress criticism against the government.
In l970 pursuant to the Emergency
(Essential Powers) Ordinance No. 45/1970, the Sedition Act[41]
was amended to prohibit as a ‘seditious tendency’ any tendency to question new
provisions of the Constitution dealing with citizenship, national language,
special rights to Malays and the sovereignty of the Rulers and any tendency to
promote ill-will amongst Malaysians.[42] Section 5(1) of the Sedition Act
which had prohibited the preferment of a charge more than six months after the
alleged publication was repealed.
Constitutional amendments made during l970
narrowed Parliamentary privilege so that Parliamentarians were no longer
protected from Sedition Act charges based on anything said or any vote
taken in Parliament relating to citizenship, national language, special right
to Malays and the sovereignty of the Rulers.
These amendments, by imposing penal sanctions, prohibit elected
representatives from questioning an entire category of legislation affecting
all aspects of Malaysian society.
While sedition has become obsolete in most other countries to
accommodate the growth of democracy, Malaysia’s Sedition Act has
broadened.
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| IV.2 The Sedition Act |
| To assess the broad reach of
Malaysia’s Sedition Act reference must first be made to the provisions
of the statute. |
| 2. Interpretation |
| “seditious” when applied to or used in
respect of any act, speech, words, publication or other thing qualifies the
act, speech, words, publication or other thing as one having a seditious
tendency; |
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3. Seditious tendency.
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(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; or
(e) to promote feelings of ill-will and
hostility between different races or classes of the population of Malays; or
(f) to question any matter,
right, status, position, privilege, sovereignty or prerogative established or
protected by the provisions, of Part III of the Federation Constitution or
Article 152, 153 or 181 of the Federal Constitution.
(2)
Notwithstanding
anything in sub-section (1) an act, speech, words, publication or other thing
shall not be deemed to be seditious by reason only that it has a tendency—
(a)
to show that
any Ruler has been misled or mistaken in any of his measures:
(b)
to point out
errors or defects in any Government or constitution as by law established
(except in respect of any matter, right, status, position, privilege, sovereignty
or prerogative referred to in paragraph (f) of sub-section (1) otherwise than
in relation to the implementation of any provision relating thereto) or in
legislation or in the administration of justice with a view to the remedying of
the errors or defects;
(c)
except in
respect of any matter, right, status, position, privilege, sovereignty or
prerogative referred to in paragraph (f) of sub-section (1);
(i)
to persuade the
subjects of any Rulers or the inhabitants of any territory governed by any
Government to attempt to procure by lawful means the alteration of any matter
in the territory of such Government as by law established; or
(ii) to point out, with a view to their
removal, any matters producing or having a tendency to produce feelings of
ill-will and enmity between different races or classes of the population of the
Federation, if the act, speech, words, publication or other thing has not
otherwise in fact a seditious tendency.
(3)
For the purpose of
proving the commission of any offence against this Act the intention of the
person charged at the time he did or attempted to do or made any preparation to
do or conspired with any person to do any act or uttered any seditious words or
printed, published, sold offered for sale, distributed, reproduced or imported
any publication or did any other thing shall be deemed to be irrelevant if in
fact the act had, or would, if done, have had, or the words, publication or
thing had a seditious tendency.
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| 4. Offences |
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(1) Any person who--
(a) does or attempts to do, or
makes any preparation to do, or conspires with any person to do, any act which
has or which would, if done, have a seditious tendency;
(b) utters any seditious words;
(c) prints, publishes, sells,
offers for sale, distributes or reproduces any seditious publication; or
(d) imports any seditious
publication,
shall be guilty of an offence and shall, on conviction,
be liable for a first offence to a fine not exceeding five thousand dollars or
to imprisonment for a term not exceeding three years or to both,....
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| 5.
Legal
Proceedings |
| (1) No person shall be prosecuted for an
offence under section 4 without the written consent of the Public
Prosecutor. In such written consent the
Public Prosecutor may designate any court within Malaysia to be the court of
trial.
These
sections of the Sedition Act give rise to a number of concerns. Section 2 creates the tautology that the
word ‘seditious’ when paired with a verb or a noun qualifies the noun or verb
as having a seditious tendency. Section
3(1) describes ‘seditious tendency’ as including a number of extremely broad
categories of consequences that could render otherwise legal acts, illegal. The language used in section 3 is broad and
imprecise enough to catch everything from a ‘tendency to question’ certain
topics, to a ‘tendency to raise discontent amongst inhabitants’, to a tendency
to excite Malaysians to alter the law by lawless means. Section 3(1)(b) is the only section that could
be said to ‘define’ a ‘seditious tendency’ with sufficient particularity to
enable a person to either know in advance of being charged the behaviour
prohibited or to prepare and present a full answer and defense. Section 3(1)(b) is the only section that
prohibits acts that would fall within the definition of sedition as interpreted
in most other common law jurisdictions.
Section
4(1)(b) specifies only the means by which the offence of sedition can by
committed: publishing, printing,
selling, possessing, distributing or reproducing any seditious publication or
uttering any seditious words. As the
acts listed in section 4 become criminal only when done in relation to a
seditious publication, it is imperative to know what ‘seditious’ means in order
to know what constitutes the offence. Case law has failed to provide the definition missing from the statute.
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IV.3 Malaysian Jurisprudence |
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Malaysian courts have interpreted
sedition so broadly that a conviction appears to be the almost inevitable
result of a prosecution. It is clear
from the jurisprudence that no defense lies in either: truth, lack of intention
to offend, presence of an innocent or honourable intention, absence of
consequent harm, or even in lack of possibility or potential for consequent
harm. To prove a charge based on
uttering seditious words, the prosecution apparently need only prove that the
words or ‘equivalent’ words were spoken and need not prove that the words had
or could have had any of the consequences referred to in section 3 of the Sedition
Act.
The
decision of the High Court in P.P. v. Ooi Kee Saik & Ors[43]
established that both the absence or impossibility of section 3 consequences
and the truth or falsity of the words uttered are immaterial and will not
provide a defense. These interpretations, later cited with approval in l998 by
Malaysia’s Court of Appeal,[44] were
summarized by Raja Azlan Shah, J.:
“In my view what the prosecution have to
prove and all that the prosecution have to prove is that the words complained
of, or words equivalent in substance to those words, were spoken by accused No.
1 at the dinner party. Once that is proved the accused will be conclusively
presumed to have intended the natural consequences of his verbal acts and it is
therefore sufficient if his words have a tendency to produce any of the
consequences stated in section 3(1) of the Act. It is immaterial whether or not the words complained of could
have the effect of producing or did in fact produce any of the consequences
enumerated in the section. It is also
immaterial whether the impugned words were true or false.”[45]
Counsel
in the Ooi Kee Saik case urged the court to follow the common law
principles of sedition established by English courts and articulated by the Kedar
Nath Singh[46]. The Indian Supreme Court held that sedition
could not be established without proof of “…acts that have implicit in them the
idea of subverting the government by violent means”.[47] Raja Azlan Shah, J. rejected interpretations
of sedition requiring an intention to incite violence , tumult or public
disorder with the non sequitur:
“Our sedition law
would not necessarily be apt for other people but we ought always to remember
that it is a law that suits our temperament.”[48]
Malaysian case law has interpreted sedition
to be essentially an absolute liability offence. The decision in P.P. v.
Mark Koding[49]
held that even an innocent or noble intention will not provide a defense. Mohamed
Azim, J. giving judgment in the case
held:
“Thus, it is immaterial whether the accused’s
intention or motive was honourable or evil when making the speech.”[50]
The test of what is seditious is not
based on evidence, information or other considerations that could be known by
the accused in advance of conviction. It is not necessary for the prosecution to submit any evidence on the
issue of whether the words did or could have a ‘tendency’ to provoke any of the
consequences found in section 3 of the Sedition Act. At the end of the trial the judge apparently
decides whether the words are seditious free from the clutter of evidence and
restricted only by the confines of his “honest judgment”. In the words of Mr. Justice Chan in P.P.
v. Param Cumaraswamy:
“...a judge has to ask himself if it is in
his honest judgment that the statement was likely to create dissatisfaction
among the people. If it is likely to do
that then the statement is seditious. If in his honest judgment he does not
think that the words were likely to create dissatisfaction among the people,
then he has to find that the words are not seditious.”[51]
Relying
on a l868 decision,[52] Chan
J. in the Cumarswamy case ‘defined’ the word ‘discontent’ (s. 3(1) (d))
as meaning, dissatisfaction. Citing the
case of Burns v. Ransley,[53] Chan
J. defined the word ‘disaffection’ (section 3(1) (a), (c)&(d)) as meaning
‘disloyalty, enmity and hostility’. The
decision in Burns v. Ransley, a seditious libel action against an
Australian communist, is no longer good law in Australia. That decision was
made, according to author Laurence Maher, when “the High Court allowed itself
to be manipulated by anti-communist hysteria”.[54]
Malaysian case law repeats the tautologies of the Sedition Act in
purporting to define ‘disaffection’ as disloyalty, enmity, or hostility and
‘discontent’ as dissatisfaction.
A leading Malaysian lawyer, Raja Aziz Addruse, summarized the extent to which Malaysian jurisprudence has deviated
from both the Malaysian Constitutional guarantees of freedom of expression and
the common law offence of sedition. He
stated:
“Unlike the common law
offence of sedition (which requires the prosecution to prove the offence by
cogent evidence such as a rousing to rebellion, tumult, or rioting), the
offence created by the Act is committed by a person whose spoken words are
regarded as having a seditious tendency. Not prepared to test the constitutionality of the provisions of the Act
by reference to their reasonableness as restrictions imposed in the interest of
national security, public order, or incitement to violence, the courts have
perpetuated the vagueness of the offence. They have described it using the phrase “freedom of speech ends where
sedition begins.” In the end, a finding
of guilt on a charge of sedition depends on subjective judgment.”[55]
The
sweeping ambiguities created by the Sedition Act are compounded by the
jurisprudence and have resulted in the creation of an offence to which there is
no defense. A sedition conviction, it
appears, can occur in the absence of both mens rea and an actus rea. The charge is essentially that the accused
committed sedition by a means (in the case of Karpal Singh, by speaking) on a
date and at a place that are specified. The consequence that did or could have rendered the words seditious and
therefore criminal is neither specified nor does the occurrence or likelihood
of occurrence of that consequence have to be proven. What constitutes a seditious tendency will be determined after
the conclusion of the trial based on the ‘honest judgment’ of the judge. The
accused can know what is seditious and what constitutes the crime only after
that final determination has been made by the trial judge and so is estopped
from defending the charge.
Malaysian
jurisprudence, by ignoring contemporary standards and principles and by ignoring
both the rights guaranteed by and the legislative restrictions imposed by the
Malaysian Federal Constitution, has taken sedition back to its 1606 origins in
the Court of Star Chamber. Malaysia’s
Sedition
Act allows for absurdities of the kind satirized in the children’s story The
Emperors’ New Clothes. In Malaysia,
remarking on the nakedness of an unclothed emperor could well result in a
sedition prosecution.
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