The Sedition Act 1948 must be one of the most maligned laws in our statute books. Again and again, calls are made to abolish the Act. It appeared at one point that the Government would finally do so when in 2012, the Prime Minister himself stated that the Act would be abolished and replaced with a “National Harmony Act”. Nearly two years later, we are no closer to its repeal.
The offence of sedition originated in England sometime in the 17th century. According to Jeyaseelan Anthony in his book Seditious Tendency?: Political patronisation of Free Speech and Expression in Malaysia, sedition was born in a time when the absolute right of the ruler was divine and could not be criticised and questioned, let alone opposed. Criticisms and opposition towards the ruler was a sin and thus must be punished.
Our Sedition Act is a colonial vestige. It was enacted before the Federation of Malaya achieved independence and it was largely used by the British to deal with militant communists insurgents at the time.
The Act criminalises “sedition” by making it an offence to do anything that has a “seditious tendency” or to utter any seditious words. “Seditious” is defined in the Act as any act, speech, word, publication or other things that qualify as one having a “seditious tendency”.
A seditious tendency meanwhile is defined as, among others, a tendency to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government or 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 Government, the unlawful alteration of any matter established by law.
A seditious tendency can also be a tendency to bring into hatred or contempt or to excite disaffection against the administration of justice or to raise discontent or disaffection among the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or among the inhabitants of Malaysia.
A seditious tendency can also be a tendency to promote feelings of ill will and hostility between different races or classes of the population of Malaysia and to question certain constitutional provisions such as Article 152 and 153 of the Federal Constitution.
Clearly, the list of what can constitute “seditious tendency” is wide. Almost anything can and would have a “seditious tendency”, by the Act’s definition. Any criticism of the Government would be seditious. Any comment made can raise ill will and hostility within the population. What is said or done may even be justified, yet would still fall foul of the Act.
If a person is charged with sedition, the prosecution does not even have to prove that the words uttered or the act done is actually seditious. All it needs to do is to show that there was a tendency to be seditious. Even the intention of the accused is irrelevant, as long as the act committed or words uttered have a seditious tendency, it would be enough to fulfill the elements of the offence and to establish the guilt of the accused.
With such a wide definition and such an easy offence to establish guilt in Court, it is no wonder that the Act has been used to stifle political opposition and dissidents.
When the police cannot find an offence in other Acts of Parliament to investigate a person, they will fall back on the Sedition Act. That is why, for example, we see the Act being used against those who allegedly insult the Rulers, in the absence of lèse majesté laws specifically for that purpose.
This restriction on free speech does not uphold the spirit of democracy that forms the basis of our country’s constitutional framework. Freedom of speech and expression is protected by the Federal Constitution, and the interpretation of the law as it currently stands is that any form of restriction placed by the state on fundamental liberties must be reasonable. The criminalisation of those matters listed as “seditious tendency” in the Act should not measure up to the yardstick of reasonableness. The Act severely encroaches upon public enjoyment and the exercise of fundamental civil liberties, and has no place in our maturing and modern society.
We should be free from such archaic laws. Laws promulgated by our colonial masters that no longer can stand the test of time. Even the British have discarded the law; the last documented prosecution for sedition in the United Kingdom was in 1972. It is time for us to do the same.