What is sedition? (Part 2)

The Sedition Act was introduced by the British Colonial masters in 1948, the same year that the autonomous Federation of Malaya came into being, with the intent of curbing opposition to colonial rule and to stifle Umno’s struggle for Merdeka which was launched in 1946. In short, the Sedition Act is an anti-Umno and anti-Merdeka law.

THE CORRIDORS OF POWER

Raja Petra Kamarudin

The United States Sedition Act of 1918

The Sedition Act of 1918 was an amendment to the Espionage Act of 1917 passed at the urging of President Woodrow Wilson, who was concerned that dissent, in time of war, was a significant threat to morale. The passing of this act forbade Americans to use "disloyal, profane, scurrilous, or abusive language" about the United States government, flag, or armed forces during war. The act also allowed the Postmaster General to deny mail delivery to dissenters of government policy during wartime.

Freedom of speech in the United States is guaranteed by the First Amendment to the United States Constitution, which states in part: "Congress shall make no law... abridging the freedom of speech, or the press". The United States Supreme Court upheld the Sedition Act at the time it was in effect in Debs v. United States, but subsequent Supreme Court decisions (such as Brandenburg v. Ohio in 1969) make it less likely that a similar law would be considered constitutional today.

The Espionage Act made it a crime to help enemies of the United States, but the Sedition Act made it a crime to utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the United States' form of government.

U.S. citizens, including members of the Industrial Workers of the World union, were also imprisoned during World War I for their anti-war dissent under the provisions of the Sedition Act. Anti-war protesters were arrested by the hundreds for speaking out against the draft and the war became illegal under this law.

In his 1941 book Censorship 1917, James Mock noted that most U.S. newspapers "showed no antipathy toward the act" and "far from opposing the measure, the leading papers seemed actually to lead the movement in behalf of its speedy enactment." And as mentioned in his book, "The Great Influenza" [John M. Barry], he noted that it was because of their willingness to so blindly follow and even lead this movement back then that explains why we today have so little information on specific numbers of deaths in particular locations caused by the 1918 influenza pandemic that swept this nation and the entire world at that time. They wished us not to know for fear that it might lower the morale of the civilians supporting the war effort and the morale of the troops fighting the war, even though hundreds, nay thousands of them were dying of the disease every day at the time. All they would ever say is, "There is no need to worry. There is no epidemic."

Congress repealed the Sedition Act in 1921.

Malaysia's Sedition Act 1948

The Sedition Act in Malaysia is a law prohibiting discourse deemed as seditious. The act was originally enacted in 1948 by the colonial authorities of British Malaya. The act criminalises speech with "seditious tendency", including that which would "bring into hatred or contempt or to excite disaffection against" the government or engender "feelings of ill-will and hostility between different races". The latter provision includes the questioning of certain portions of the Constitution of Malaysia, namely those pertaining to the Malaysian social contract, such as Article 153, which deals with special rights for the Bumiputera (Malays and other indigenous peoples, who comprise over half the Malaysian population).

The Sedition Act was introduced by the British Colonial masters in 1948, the same year that the autonomous Federation of Malaya came into being, with the intent of curbing opposition to colonial rule and to stifle Umno’s struggle for Merdeka which was launched in 1946.

In short, the Sedition Act is an anti-Umno and anti-Merdeka law. However, the law has remained on the statute books even though Malaya gained independence in 1957 and eventually merged with Sabah, Sarawak and Singapore in 1963 when Malaysia was formed.

The Federal Constitution of Malaya (and later Malaysia) permitted Parliament to impose restrictions on the freedom of speech granted by the Constitution. After the May 13 Incident, when racial riots in the capital of Kuala Lumpur led to at least 200 deaths, the government amended the Constitution to expand the scope of limitations on freedom of speech. The Constitution (Amendment) Act 1971 named Articles 152, 153, and 181, and also Part III of the Constitution as specially protected, permitting Parliament to pass legislation that would limit dissent with regard to these provisions pertaining to the social contract.

(The social contract is essentially a quid pro quo agreement between the Malay and non-Malay citizens of Malaysia; in return for granting the non-Malays citizenship at independence, symbols of Malay authority such as the Malay monarchy became national symbols, and the Malays were granted special economic privileges.)

With this new power, Parliament then amended the Sedition Act accordingly. The new restrictions also applied to Members of Parliament, overruling Parliamentary immunity; at the same time, Article 159, which governs Constitutional amendments, was amended to entrench the "sensitive" Constitutional provisions; in addition to the consent of Parliament, any changes to the "sensitive" portions of the Constitution would now have to pass the Conference of Rulers, a body comprising the monarchs of the Malay states.

These later amendments were harshly criticised by the opposition parties in Parliament, who had campaigned for greater political equality for non-Malays in the 1969 general election. Despite their opposition, the ruling Alliance (later Barisan Nasional) coalition government passed the amendments, having maintained the necessary two-thirds Parliamentary majority. In Britain, the laws were condemned, with The Times of London stating they would "preserve as immutable the feudal system dominating Malay society" by "giving this archaic body of petty constitutional monarchs incredible blocking power"; the move was cast as hypocritical, given that Deputy Prime Minister Tun Abdul Razak had spoke of "the full realisation that important matters must no longer be swept under the carpet...”

The Sedition Act would be unconstitutional, as the Constitution guarantees freedom of speech, without Article 10(2) of the Constitution, which permits Parliament to enact "such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence". Article 10(4) also states that "Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law".

These portions of the Constitution have been criticised by human rights advocates, who charge that "under the Malaysian Constitution, the test is not whether or not the restriction is necessarily but the much lower standard of whether or not Parliament deems the restrictions necessary or even expedient. There is no objective requirement that the restriction actually is necessary or expedient and the latter standard is much lower than that of necessity."

Section 4 of the Sedition Act specifies that anyone who "does or attempts to do, or makes any preparation to do, or conspires with any person to do" an act with seditious tendency, such as uttering seditious words, or printing, publishing or importing seditious literature, is guilty of sedition. It is also a crime to possess a seditious publication without a "lawful excuse". The act defines sedition itself as anything which "when applied or used in respect of any act, speech, words, publication or other thing qualifies the act, speech, words, publication or other thing as having a seditious tendency".

Under section 3(1), those acts defined as having a seditious tendency are acts with 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 the 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 as 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;

(e) to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia; or

(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 or Article 152, 153 or 181 of the Federal Constitution.

Section 3(2) provides certain exceptions, providing examples of speech which cannot be deemed seditious. It is not seditious to "show that any Ruler has been misled or mistaken in any of his measures", nor is it seditious "to point out errors or defects in the Government or Constitution as by law established". It is also not seditious "to attempt to procure by lawful means the alteration of any matter in the territory of such Government as by law established" or "to point out, with a view to their removal, any matters producing or having a tendency to produce feelings of ill-will and enmity between different races or classes of the population of the Federation". However, the act explicitly states that any matter covered by subsection (1)(f), namely those matters pertaining to the Malaysian social contract, cannot have these exceptions applied to it.

Section 3(3) goes on to state that "the intention of the person charged at the time he did or attempted (a seditious act) ... shall be deemed to be irrelevant if in fact the act had, or would, if done, have had, or the words, publication or thing had a seditious tendency". This latter provision has been criticised for overruling mens rea, a legal principle stating that a person cannot be guilty of a crime if he did not have the intent to commit a crime.

A person found guilty of sedition may be sentenced to three years in jail, a RM5,000 fine, or both.

Courtesy Super Admin, Malaysia Today Friday, 23 May 2008