Tuesday, 8 February 2011

Malaysia's Sedition law’s overreach !

REFLECTING ON THE LAW By Prof SHAD SALEEM FARUDI



The Sedition Act is open to many criticisms for its breadth and for its far-reaching implications on political life in the country. Some of its provisions do raise enthralling issues of constitutionality.

THE sedition charge against Sri Muda assemblyman Shuhaimi Shafiei draws our attention to the catch-all provisions of the controversial Sedition Act 1948.

Definition: Section 2 and 3(1) of the Act state that any act, speech, words or publication are seditious if they have a tendency towards any of the following:

> To bring into hatred or contempt or to excite disaffection against any Ruler or government.
Disaffection does not mean absence of affection but refers to disloyalty, enmity and hostility: PP v Param Cumarasamy [1986].

> To excite subjects to seek alteration other than by lawful means of any matter by law established.
> To bring into hatred or contempt the administration of justice in the country. In Lim Guan Eng v PP [1998], an opposition leader who complained that justice was selectively administered was convicted of this charge.

But in PP v Param the defendant’s criticism of the Pardons Board for not applying uniform standards in considering applications for mercy was held not to constitute sedition.

> To raise discontent or disaffection among the subjects. In PP v Ooi Kee Saik [1971] an opposition leader had accused the Government of gross partiality in favour of one race over another.

> To promote ill will and hostility between races or classes.

> To question the provisions dealing with language, citizenship, the special position of the Malays and natives of Sabah and Sarawak and the sovereignty of the Rulers. In Melan Abdullah v PP [1971] the editor-in-chief of Utusan Melayu had published an MP’s speech with the sub-heading “Abolish Tamil or Chinese medium schools in the country”.

Application of the law: In Param Cumarasamy it was held that intention to incite to violence, tumult or public disorder is not a necessary ingredient of the crime.

As long as the words were intentionally published and they had a tendency to cause ill will, etc, the offence is complete.

The prosecution need not prove that the act, speech or publication actually caused hostility, ill will or disaffection. It is no defence for the accused to argue that his words were, in fact, true and honest: PP v Ooi Kee Saik [1971].

Sedition can be committed either in public or in private. On the same set of facts the speaker, the printer and the publisher of a speech may all be prosecuted as in Ooi Kee Saik’s case.

Under Article 63(4) and (5) of the Federal Constitution, Members of Parliament are not exempt from the law of sedition for their parliamentary words or actions: Mark Koding v PP [1982]. 

Safeguards: Section 3(2)(a) of the Sedition Act says that a speech is not seditious if its tendency is only to show that any Ruler has been misled or mistaken in any of his measures.

Section 3(2)(b) states that a speech is not seditious if its tendency is to point out errors or defects in the implementation or administration of government policies with a view to remedying the errors or defects.

What this means is that implementation of government policies and programmes can be questioned.
But the existence of rights, privileges, powers, etc, cannot be put to debate.

Except in relation to sensitive matters, it is permissible to try to seek by lawful means the alteration of any matter established at law.

There is a defence of innocent and non-negligent dissemination in section 6(2).

No person shall be convicted if the publication was printed, sold or distributed without his consent, knowledge and without any want of due care: Melan Abdullah v PP [1971].

Under section 7, innocent receivers of seditious publications are protected if they surrender the publication as soon as the nature of the content has become known to them.

The offending passage must be read in context and as a whole: Mark Koding v PP [1982].
The presiding judge is entitled to look at the audience addressed.

Language which may have a tendency to incite youths may not have such tendency with professors or divines.

The judge is entitled to take note of the contemporary situation. In times of war, emergency or discord, a tendency to bring about one of the undesirable results may be more easily imputed than in times of peace and harmony: PP v Oh Keng Seng [1977].

Constitutionality: Though the Sedition Act has stood the test of time since 1948, it is not immune from judicial review.

Some of it’s provisions do raise enthralling issues of constitutionality.

If the Sedition Act is an Act to combat subversion, then it suffers from a number of manifest defects.
> Every law made under Article 149 must contain the recital prescribed in Article 149(1).

The Sedition Act contains no such recital. Absence of a recital amounts to a violation of a mandatory procedural requirement.

The alternative approach could be that the absence of a mandatory recital relegates the Act to the status of an ordinary law under Article 10 that is bereft of the special scope of Article 149.

> Under Article 149(1) subvesive action must be taken or threatened by “any substantial body of persons”.
Actions of lone dissidents are not within Article 149’s contemplation. Yet the Sedition Act criminalises individual acts of dissent or disaffection.

> In section 2 of the Act, the definition of “publication” includes all written or printed matters and any visible representation.

This means that even a purely private, non-printed, non-circulated matter that is left in a person’s drawer (but discovered by the police in a search under section 8(1) can be regarded as a “publication”.

This means that the Act goes for an overkill. Its prohibitions show no necessary nexus or connection with the action or threat of a substantial body of persons to do the prohibited things in Article 149(1)(a) to (f).

> In sections 2 & 3 of the Act, sedition is not to be judged by actual facts or by criminal intention but by a speculative and subjective “tendency”.

However, in Article 149(1), “tendency” alone is not enough. The alleged action must be of a nature so as “to cause”, “to excite”, “to promote”, “to procure” or be prejudicial to public order, etc.

If the Sedition Act is a law under Article 10(2) and 10(4), then its restrictions must fall within the borders of the explicitly enumerated grounds in these Articles.

It is arguable that many of the provisions of the Act, e.g. section 3(1)(a) on exciting disaffection against any government go far beyond the permissible limits.

In PP v Pung Chen Choon [1994] it was held that where a law authorises restrictions in language wide enough to cover restrictions both within and outside the permissible limits, the law cannot be upheld.

In the same case it was provided that in order to determine whether a particular piece of legislation falls within the orbit of permitted restrictions, the objects of the law must be sufficiently connected to the eight restrictions enumerated in Article 10(2)(a).

The connection must be real and proximate, not far-fetched or problematical.

There is emerging jurisprudence in the case of Shamim Reza that, as in India, parliamentary restrictions on fundamental rights must be “reasonable” in order to be valid.

The concept of sedition in Malaysia is much broader than in the UK, Ireland, India and Australia.

On ideal democratic standards, the law is open to many criticisms for its breadth and for its far-reaching implications on political life in the country.

For this reason it is ripe for review. Whether the technique for law reform will be legislative or judicial remains to be seen.

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM


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