The repeal of the Sedition Act should not be rushed into, it should either be amended or replaced by another Act.
As in any election, all parties will tell the people what they will do if they are elected. Since independence, the party that has governed has also not always kept all its promises.
Now, after the election in May 2018, a different party has come into power. Their manifesto included what some of their components parties have long been urging for.
Of course, civil groups, individuals and others are asking for the promises to be kept.
It is not possible for me to touch on all these promises. However, there is one subject I would like to touch upon and that is “sedition”.
Statements in the public domain indicate that the Sedition Act will be repealed sooner or later.
The repeal of the Sedition Act should not be rushed into.
It should either be amended or replaced by another Act. The most significant part of the Act that requires attention is Section 3(1) which relates sedition to words having a “seditious tendency” and it states that 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 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 Malaysia;
(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.
As I stated earlier, the repeal of the Sedition Act should not be rushed into.
It could be repealed later after it has been properly considered and studied. I myself have earlier on in my columns criticised the Act.
The law of Sedition is a very old law which has its purpose. However (a), (b) and (d) above should remain.
These three definitions portray the original concept of sedition. There is no need to do away with what is traditionally and universally seditious.
For better understanding, I quote below the statement by Fitzgerald in John J vs Sullivan:
“... the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action ...”
With regard to (c), this should no longer be in the Act.
This is because this is about the Institution for the administration of justice. No one has ever said it should be done away with. There are of course instances of statements which the Courts have found to be offensive.
There is already a remedy through contempt of court which has been judicially defined over the years. The way in which (c) above is worded is vague and too broad and there is no tradition of interpretation of this definition in our law.
With regard to (d) and (e), these two definitions should remain and should be retained for a while and if a new Act is to be introduced, it should be taken into consideration or while the Act is being studied with the view to amendment or being replaced.
There have been many statements made which are clearly seditious based on (d) and (e). There is no need for me to refer to any statements or actions.
These are all in the public domain. I do not know how many and what reports have been made but even if no report has been made it does not matter. The police would be aware of this.
All that is required is as long as a breach of the law comes to the attention of any police officer, he lodges a police report which would be sufficient to commence investigations. It is not unknown for police personnel in certain cases to lodge a report to commence investigations.
To mention one specific situation where action may not have been taken is the controversial preacher Dr Zakir Naik with regard to his style of propagating religion by putting down other beliefs.
He sought refuge in Malaysia because he insulted other religions in his own country.
Of course, various group have previously condemned Dr Zakir for being disrespectful to other religions.
The irony of it has been that not only is he freely committing acts of sedition, but he has also been granted permanent resident status when citizens have been threatened in the past for sedition for the slightest statements.
Even the Minister in Charge of Islamic Affairs Datuk Dr Mujahid Yusof Rawa has referred to him and said that his preaching style is not suitable for Malaysia.
With regard to (f), no one has ever said that Malay should not be the national language.
On the contrary, even many non-Malays who have attempted to promote the Malay language actively have not been appreciated.
Otherwise the word “to question” is vague. With regard to the issue other than language, this needs to be worded in a suitable manner or modified to allow judicial flexibility.
Next, I come to the aspect of intention and effect. Are the intentions of the speaker or publisher or the effect on the audience factors to be considered whether an offence has been committed?
English cases are of help. In Rex v. Aldred, Coleridge J said “... to look at all the circumstances surrounding the publication with the view of seeing whether the language used is calculated to produce the results imputed; that is to say, you are entitled to look at the audience addressed, because language which would be innocuous, practically speaking, if used to an assembly of professors or divines, might produce a different result if used before an excited audience of young and uneducated men”.
Cave J in Reg v. Burns went on to say: “A man cannot escape from the consequences of uttering words with (a seditious tendency) solely because the persons to whom they are addressed may be too wise or too temperate to be seduced (by those words).”
The reason why I say that the Act should be kept is that in the present environment there is still a need for the Act, in particular paragraph (d) and (e), to be retained and acted upon.
The non-action by the authorities as stated above remains a puzzle for the ordinary members of the public. It is therefore hoped that the Act will not be repealed immediately.
And that the relevant parts will be retained until these are no longer necessary in the broader interest of the country.