Sedition: A loosely-worded crime punished by incarceration

In an ironic twist in the wee hours of this morning, the constitutional right of freedom of speech was effectively jettisoned by Parliament via amendments passed to the Sedition Act 1948.

Apr 15, 2015

KUALA LUMPUR: In an ironic twist in the wee hours of this morning, the constitutional right of freedom of speech was effectively jettisoned by Parliament via amendments passed to the Sedition Act 1948.

Effectively, that right was surrendered in favour of the right of the authorities to prosecute and incarcerate citizens for speaking on a whole host of subjects deemed seditious irrespective of criminal intent, ill-will or even the fact that the content of the matter spoken was true.

Under the Act as amended, a “seditious tendency” is now defined as a tendency to:

• bring into hatred or contempt or excite dissatisfaction against any Ruler;

• attempt to procure, the alteration, otherwise than by lawful means, of any matter as by law established;

• raise discontent or disaffection amongst the subjects of Agong or the Ruler of any State or amongst the inhabitants of Malaysia or of any State;

• promote feelings of ill will, hostility or hatred between different races or classes of the population of Malaysia;

• promote feelings of ill will, hostility or hatred between persons or groups of persons on the ground of religion;

• question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of the Federal Constitution, namely, Part III (citizenship) or Article 152 (national language),153 (reservation of quotas in respect of services, permits, etc. for Malays or natives of Sabah and Sarawak) or 181 (sovereignty of Rulers).

While Barisan Nasional lawmakers have been harping on the fact that criticism of government has been removed, a senior lawyer told FMT that the benefit from that removal might in effect be illusory.

“Criticism of government does not exist in isolation,” he explained. “It exists with regard to its policies.”

“Like it or not, in this country, many governmental policies do tend to centre around religion, race and language. Would criticisms of such policies still be immune?

“Also, what is the threshold test for loose terms like ‘hatred’, ‘contempt’, ‘dissatisfaction’, ‘discontent’, ‘disaffection’, ‘ill will’ or ‘hostility’? At what level do they become seditious?” he asked.

“A crime needs to be specific so that people know that it is a crime and they know that they can be punished if they commit it,” Puchong MP Gobind Singh Deo was quoted by the Malaysian Insider as saying today.

Home Minister Ahmad Zahid Hamidi, however, appeared to be unable to give specific examples of what was considered seditious, according to Gombak MP Azmin Ali. “It is up to the interpretation and definition of the court,” Zahid was quoted as saying.

The distrust of the law is exacerbated by the stiffness of the punishment for offences under the amended Act.

“Whereas punishment for an offence under the old section 4 could range from a fine not exceeding RM5,000 or an imprisonment term not exceeding three years or both for a first time offender, the sentence under the amended section 4 is mandatory imprisonment with a minimum term of three years and a maximum term of five,” FMT’s senior lawyer tells us.

“The discretionary maximum jail sentence under the old law has become the mandatory minimum jail sentence under the amended law,” he warned. “The discretion to impose a fine or a jail sentence of less than three years has been completely taken away from the courts.”

“Such incursions into the domain of judicial discretion are unwarranted,” he said.

“I suspect that if I were to say to you that we are in danger of turning into a police state where they lock you up for speech offences, that statement itself may be seditious,” he added.

“I may be said to be exciting dissatisfaction against the Agong. After all, our police are known as Polis DiRaja Malaysia.”--FMT