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Monday, May 12, 2008

What is sedition? (Part 1)

Posted by Super Admin
Sunday, 11 May 2008

Sedition is a law that makes it an offence to criticise leaders considered SUPERIOR BEINGS who are exercising a DIVINE (God-given) mandate, who are, in short, BEYOND CRITICISM. Criticising what these leaders do implies either that they are equal to other men/women or that they are accountable for their acts, both equally offensive, and therefore considered a crime under the Sedition law.


Raja Petra Kamarudin


Sedition is a crime of creating a revolt, disturbance, or violence against lawful civil authority with the intent to cause its overthrow or destruction. Because it is limited to organising and encouraging opposition to government rather than directly participating in its overthrow, sedition is regarded as falling one step short of the more serious crime of treason. (Britannica Concise Encyclopaedia)

Seditious Libel

In English law, Seditious Libel is a misdemeanour involving the publishing of any words or document, with a seditious intention. "A seditious intention means an intention to bring into contempt or excite disaffection against the government or to promote feelings of ill-will between the classes. If the seditious statement is published, the publisher is guilty of a seditious libel." [Black, Constitutional Law 543 (2nd edition 1897)]. The law of seditious libel is now severely circumscribed in the United States by the First Amendment to the Constitution. (Law Dictionary)

Sedition in Common Law jurisdictions

Many jurists and scholars consider sedition properly to be an obsolete offence, one no longer valid in purpose or substance. Contemporary case law in common law jurisdictions has clearly established that only an intention to incite violent overthrow of lawfully constituted authority coupled with action(s) likely to achieve the prohibited result could constitute sedition, but even this narrowly defined offence has fallen into disuse.

Laurence W. Maher concludes from his study of sedition in Australia that, “there is almost complete agreement in the common law jurisdictions that sedition should be made obsolete.” Lord Denning is less qualified in his remarks about the offence of Seditious Libel: “The offence of Seditious Libel is now obsolescent. It used to be defined as words intended to stir up violence, that is, disorder, by promoting feelings, of ill-will or hostility between different classes of His Majesty’s subjects. But this definition was found to be too wide. It would restrict too much the full and free discussion of public affairs...So it has fallen into disuse for nearly 150 years. The only case in this century was R. v. Caunt...when a local paper published an article stirring up hatred against Jews. The jury found the editor Not Guilty.”

In a decision of the Supreme Court of Canada, Mr. Justice Rand commented that the crime of Seditious Libel was founded in legal and social beliefs no longer held: “The crime of Seditious Libel is well-known to the Common Law. Its history has been thoroughly examined and traced by Stephen, Holdsworth and other eminent legal scholars and they are in agreement both in what it originally consisted and in the social assumptions underlying it. Up to the end of the 18th century it was, in essence, a contempt in words of political authority or the actions of authority. If we conceive of the governors of society as superior beings, exercising a divine mandate, by whom laws institutions and administrations are given to men to be obeyed, who are, in short, beyond criticism, reflection or censure upon them or what they do implies either an equality with them or an accountability by them, both equally offensive.”

Although there are some differences amongst scholars as to the exact origins of the offence, all agree that this offence came into being during a period when the divine right of rulers was not only accepted but believed to be necessary, when the rulers who dispensed laws were largely above question and criticism, and when criticism of rulers was considered sinful as well as unlawful. Some date the genesis of sedition from the Statute of Westminster, 1275, 3 Edw. I, c. 34. (repealed in 1887). De Scandalis Magnatum created penalties for publishing ‘false’ news or other statements that could create discord between the Ruler and his subjects. The language was broad and unrestrained,“...that from henceforth none be so hardy to tell or publish any false news or Tales, whereby discord, or accession of discord or slander may grow between the King and his people, or the Great Men of the Realm.”

Others date the original offence of Seditious Libel from l606, when the Chief Justice of the Star Chamber laid down in De Libellis Famosis, some defining characteristics of this offence. The Court of Star Chamber was created by Henry VII in 1487 to combat the evils of feudal anarchy and was the chief institutional tool by which the Tudors restored the authority of the national courts and repressed baronial disorder. One of the tools of the Star Chamber was censorship, a particular concern with the advent of printing. When the Court of Star Chamber was abolished in 1641, Seditious Libel continued as an offence in the common law courts.

The language used in De Libellis Famosis is strikingly similar to Malaysia’s Sedition Act: intention was irrelevant as was absence of actual harm. Truth, according to Lord Coke, was not a defence because truth could be more injurious to the King or Ruler than fiction. In l606, Seditious Libel could be punished by imprisonment, fine, pillorying or loss of ears. These antecedents to the Sedition Act bestowed powers that were sweeping enough to be used arbitrarily by Rulers not accountable to ordinary citizens with none of the balancing of state powers and individual rights, nor the legal protections necessary to maintain that balance which have become cornerstones of modern democracy.

The fact that sedition has often been used as a political tool and not for a legitimate public purpose is another factor contributing to its repudiation by common law courts. Authors, Gitobu Imanyara and Kibe Mungai, when reviewing Kenya’s now repealed Sedition Act, observed: "Sedition was always a political, rather than a criminal, offence. Thus, there was no vigorous effort on the part of the government to prove the culpability of an accused in court.” In England, sedition survived only as a common law offence of Seditious Libel and prosecutions since the Reform Act of 1832 have been rare. The last conviction in England for Seditious Libel occurred in 1909. This was a prosecution of the printer of the Indian Socialist, a publication that advocated independence for India.

The last prosecution for Seditious Libel initiated by the English crown was in l947 and this prosecution ended in an acquittal. In l991, a private individual sought to compel a magistrate to issue a summons for Seditious Libel and blasphemy based on the book Satanic Verses, against both the author, Salman Rushdie, and the printer. The Queen’s Bench Division, on judicial review of the magistrate’s refusal to issue the summons, found as a fact that Satanic Verses contained passages that promoted hostility and ill-will amongst the Queen’s subjects and had caused the breakdown of diplomatic relations between Britain and Iran, but did not disclose an intention to incite violence against constituted authority. The Court of Queen’s Bench unanimously upheld the magistrate’s ruling that the prosecution for sedition could not proceed.

Lord Justice Watkins, giving judgment for the Court, relied on the statement of law contained in the decision of the Supreme Court of Canada in Boucher v. The King and stated that:“…the seditious intention upon which a prosecution for Seditious Libel must be founded is an intention to incite to violence or to create public disturbance or disorder against the sovereign or the institutions of Government. Proof of an intention to promote feelings of ill-will and hostility between different classes of subjects do not alone establish a seditious intention. Not only must there be proof of an incitement to violence in this connection, but it must be violence or resistance or defiance for the purpose of disturbing constituted authority, meaning some person or body holding public office or discharging some public function of the state.”

In Canada, no prosecutions for sedition have been initiated for over 50 years. The original Criminal Code sedition offence was based partly on the 1879 English Draft Code, itself a codification of the law of seditious libel prior to 1879. The last prosecution for sedition in Canada (Boucher v. The King) targeted a member of the Jehovah Witness religion, prosecuted for urging people to protest against the Quebec government’s ‘mob rule and Gestapo tactics’ by obedience to god. The Supreme Court of Canada set aside Mr. Boucher’s conviction and observed that the courts in all countries had rejected criminality based on the mere creation of ‘disaffection’, ‘discontent’, ‘ill-will’, or ‘hostility’.

(Lawyers' Right Watch Canada)

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