How to avoid being seditious

Here are probably eight things you would have to consider before speaking in Malaysia to avoid having a ‘seditious tendency’.

By JoFan Pang, FMT

To kick-start this collaboration between MyConsti and FMT I’m sure many would appreciate a brief description of the Constitution.

Most would know that Malaysia is a nation which practices constitutional supremacy. That basically means that the Federal Constitution of Malaysia is the highest law of Malaysia and it defines our whole existence in this country. It defines the power of the Yang di-Pertuan Agong. It also sets out the three branches of government (Parliament, Executive, Courts) and states all of their roles and functions.

And when I said that the constitution defines our existence in this country I was not exaggerating.

From the very moment you step out of your house every morning (freedom of movement), say goodbye to your family (freedom of speech), gather with your colleagues at work and hang out with your friends at night (freedom of assembly) to performing your religious obligations (freedom of religion) as well as your very identity as a Malaysian citizen (citizenship).

All these freedoms are granted to you by the Constitution, and it is also through the Constitution where you seek protection for all these freedoms. These are what we call ‘constitutional rights’, what we all are entitled to have.

Hence, any action taken by authorities or laws legislated by parliament which we feel breaches our constitutional rights can be challenged in court.

Recently, we have witnessed many cases where people were arrested and charged under this mysteriously powerful law called the Sedition Act 1948 (‘Akta Hasutan 1948’). This law was enacted by the British in 1948 to combat the communist insurgency.

However the Act was never used to prosecute anybody until after Merdeka, when it was primarily used on opposition figures.

The most recent investigations and charges made under this Act will be the case of the five speakers in a particular forum and a woman who allegedly spoke against the Yang Di-Pertuan Agong on Facebook.

Even Zunar, the cartoonist was charged under this Act and is now appealing to the Court of Appeal.

So under this Act, you may be liable for a criminal offence by just, well, saying things. But what exactly are these things?

Section 4 of the Act provides that one would be liable for sedition if such words uttered (or published) have a “seditious tendency”.

Linguistically speaking, the sentence is worded in such a literal sense it is as if it is the same as claiming that “I’m hungry because I am experiencing a hunger tendency”.

But that is not true.

Stirring up emotions

The meaning of these two words is provided under Section 3. These two words essentially mean words that have a tendency to generally stir up emotions against the government or the Ruler or even towards the courts and to provoke racial tension.

As vague as this short phrase may be, its implementation, after 65 years have been quite settled.

For all you law students, relevant authorities interpreting the meaning of these words are PP v Ooi Kee Saik & Ors [1971], PP v Fan Yew Teng [1975], PP v Oh Keng Seng [1978] and PP v Param Cumaraswamy [1986].

For those who are older, you might have seen these high profile cases. For those of you who aren’t, at the very least, you have the luxury of Google.

Based on the four cases mentioned, these are probably eight things you would have to consider before speaking in Malaysia to avoid having a ‘seditious tendency’:

1. Seditious words have to be spoken by the accused. [PP v Ooi Kee Saik & Ors]

Yes, being Captain Obvious, I thought you may want to know that this is generally what all the prosecution has to prove to presume that you have intended to stir up hatred or contempt towards the relevant parties provided under Section 3.

2. Immaterial whether statement is true or false. [PP v Oh Keng Seng]

Because as long as the statement made is perceived to be able to cause the consequences discussed in Section 3, it has a seditious tendency and the accused will be guilty.

3. Constructive criticism towards government policy for change or reform is safe speech. But if court is satisfied that speech is clearly aimed at stirring up hatred, contempt or disaffection towards the government (or the YDPA), it shall be caught within s.3(1) of the Act. [PP v Ooi Kee Saik & Ors]

Basically it is okay to criticize the government and its’ policies but that criticism cannot stir hatred or excite disaffection towards these parties.

4. ‘Excite disaffection’ in relation to a government refers to the implanting or arousing or stimulating in the minds of people a feeling of antagonism, enmity and disloyalty tending to make government insecure. [PP v Param Cumaraswamy]

Well, we all have our insecurity issues, don’t we?

5. Section 6(2) provides that a person shall not be convicted under S4(1)(c) or (d) if he did not authorize the publication or has no reason to believe that the publication had a seditious tendency. [PP v Ooi Kee Saik & Ors]

So the only way publishers can get off the hook is to prove that they are completely unaware of it.

6. The courts must determine sedition tendency by using the general impression that a normal person has upon reading the statement. [PP v Fan Yew Teng]

This is probably the simplest yardstick to grasp “seditious tendency”

7. It is unnecessary for the prosecution to specify in charge which of the 6 tendencies under S.3 of the Act that the accused has violated. Judge may determine it in trial. [PP v Param Cumaraswamy]

Judges will honestly ask themselves if statement has tendency to cause those consequences. They would act like juries in our jurisdictions which does not have the jury system.

8. Words are seditious if they are likely to incite or influence the audience addressed or if they are likely to incite or influence ordinary people even though the audience addressed was unaffected by the words [PP v Param Cumaraswamy]

It does not matter even if the audience is generally fine with it, as so long as it is likely to influence other people, it is seditious.