Malaysia on the wrong side of history in Karpal’s conviction for sedition


Jeyaseelen Anthony, The Malaysian Insider 

Karpal Singh’s conviction for sedition recently has thrown Malaysia back into the days of the Court of Star Chambers in the 17th century where people were convicted and imprisoned for critisicing the British monarch and the British Empire.

The law on sedition came about during a period when kings and queens were believed to have divine powers and they were believed to be god sent and as such the laws dispensed by them were unquestionable and criticism of rulers were seen as sinful and unlawful and therefore they cannot be challenged. Today, this believe is no longer true, foolish and an abberation.

In India prominent Indian freedom fighters and nationalist like Mahatma Gandhi, V.O. Chidambaram Pillai ( better known as “ Kappalotiyar Tamilzhan) and Balgandhar Tilak were arrested charged for sedition for speaking against the British in India. Mahatma Gandhi for example was imprisoned several times after being convicted for sedition.

The  intention of the British was clearly to  suppress  and  punish  per se  any  individual  who  attempts  to  create  feelings  of  disaffection,  hatred  or  contempt  to its rule.   The  crime  of  sedition  was  the  most  effective  weapon  used by  the  British  to suppress  dissent  and  to  fulfill  its  colonial  agenda  in  India.

The Sedition Act is draconian because the truth or falsity of the words uttered or written, are immaterial and will not provide a defense. Even if the words are uttered by the speaker with the most, noblest intention again this will not provide him with a defence. It is therefore an absolute liability offence where intention is irrelevant. In Public Prosecutor v Mark Koding, Justice Azmi Kamaruddin in the course of his judgment said:

“… it is immaterial whether the accused intention or motive was honorable or evil when making the speech.”

All the judge has to do is to see whether the words are likely to create disaffection against the government, the ruler or the people. If in his honest judgment he finds it is likely to do that then the statement is seditious. The Malaysian courts have adopted the meaning of “disaffection” in the Australian case of Burns v Ransley, which means disloyalty, enmity and hostility. In other common law jurisdictions like Canada, Australia and India it has been established sedition could not be established without proof of acts that have implicit in them the idea of subverting the government by violent means and inciting others to violence and disorder. Unfortunately the trend in Malaysia gleaned from the cases decided, does not require any proof of incitement to violence or unlawful behaviour. In essence the Malaysian courts have rejected the common law requirement.

It is quite clear that prosecutions under the Sedition Act are carried out to suppress dissent and its reach even extends to what is said by Members of Parliament, in Parliament. This is rather shocking as the electorate expects the people whom they have voted into Parliament to speak on their behalf without fear or favour. The question is, how are the representatives of the people expected to perform their parliamentary duties if their mouths are gagged by the Sedition Act? This is definitely an affront to the principle of parliamentary democracy. No other parliament in the world is subjected to such a restriction.

It is unfortunate to see that Malaysia has gone down the same road that the British had taken decades ago and with the convictions of Karpal Singh, Lim Guan Eng and Uthaya Kumar of Hindraf for sedition, they will go down in history undoubtedly as the Mahathma Gandhi’s of Malaysia.

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