Sedition Act amendments and impact

IF you have been following the news, you would likely have read that in the early hours of April 10, the Dewan Rakyat passed the Sedition (Amendment) Bill 2015, which amends the Sedition Act 1948 in a significant manner.

The Bill will now have to be passed by the Dewan Negara, and by June, the new law will likely come into force.

There is a lot of literature on the objectionable provisions of the Sedition Act. Its wide and arbitrary definition of what constitutes “seditious”, the lack of intention as an element to be proven and the manner of prosecution are just some of the criticisms levelled at the Act.

It is immediately clear that the amendments were made with social media users in mind. For example, the word “publish” in the original Act has been amended to also include the words “cause to be published”. This is presumably to cater to social media users who creatively might try to argue that they did not “publish” the offending tweet or Facebook update as the publisher ultimately would be Twitter of Facebook. Such arguments can no longer be used with the insertion of the words “cause to be published”.

The amendments also empower the Sessions Court to make what is known as a “prohibition order” for publications which are likely to lead to bodily injury or damage to property, appears to promote feelings of ill will, hostility or hatred between races or classes of persons or appears to promote feeling of ill will, hostility or hatred between people on grounds of religion.

It seems that the Sessions Court does have some discretion in granting the order. However, the threshold will be low as the Bill uses words such as “likely” or “appears”.

For seditious publication by way of electronic means, a prohibition order shall require the person making or circulating the seditious publication to remove the said publication. So if a person posted a Facebook update, the order will require the person to delete the post. What is more worrying is that the person making or circulating the seditious publication will also be prohibited from accessing any electronic device. So, if a person tweeted something seditious and the Sessions Court issues a prohibition order against the person, the person will be then prohibited from using a smartphone, tablet, desktop and any other electronic device.

The Bill also makes it an offence to “propagate” seditious publication. Propagation is, however, not defined in the Bill. The normal meaning of the word would be to reproduce, disseminate or spread the publication. For social media users and those using smartphones, this would mean that a person would be liable if the person shared on Facebook or WhatsApp, or retweeted a seditious publication, even if the person is not the maker of the said publication nor had any seditious intent. 

Other amendments introduced by the Bill are of more general application. For instance, fines can no longer be imposed on a person convicted of an offence under the Act. Instead, there will now be a minimum sentence of at least three years for a conviction.

Judicial discretion in sentencing is to ensure that the Court is given the room to determine the most appropriate sentence for the convicted person, taking into account the aggravating and mitigating factors surrounding the case. These new provisions, thus, take away judicial discretion.

The Bill also empowers the Court to prevent a person who is charged with sedition from leaving Malaysia. If the Public Prosecutor makes an application, the Court shall order the person to surrender his travel documents such as his or her passport or order the Director-General of Immigration not to issue any travel documents to the said person. The use of the word “shall”, would mean that the Court has no discretion on the granting of such an order once an application is made.

The Bill further creates a new offence – an “aggravated” offence where the seditious act causes bodily injury or damage to property. The sentence upon conviction is a minimum of three years’ imprisonment and maximum 20 years’ imprisonment. The words used are imprecise and one can envisage situations where an agent provocateur causes some minor bodily injury or damage to property purportedly because of some seditious utterances, and the utterer of those words being held liable for an aggravated offence.

These amendments can be see to severely restrict freedom of speech and expression. They also interfere with the independence of the judiciary.

So does this then mean that we should self-censor, for fear of running foul of the law?

Freedom of speech and expression is a constitutionally guaranteed right. It is part and parcel of our democratic values and we should not part with these values so easily. To take the words of Edward Snowden: “If you sacrifice your values because you’re afraid, you don’t care about those values very much.”

> The views expressed are entirely the writer’s own.
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