Sedition Act (Malaysia)
Encyclopedia
Sedition
In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority. Sedition may include any...
. The act was originally enacted by the colonial authorities of British Malaya
British Malaya
British Malaya loosely described a set of states on the Malay Peninsula and the Island of Singapore that were brought under British control between the 18th and the 20th centuries...
in 1948. 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
Constitution of Malaysia
The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation...
, namely those pertaining to the Malaysian social contract, such as Article 153, which deals with special rights for the bumiputra
Bumiputra
Bumiputera or Bumiputra is a Malay term widely used in Malaysia, embracing indigenous people of the Malay Archipelago. The term comes from the Sanskrit word bhumiputra, which can be translated literally as "son of land"...
(Malays
Malay people
Malays are an ethnic group of Austronesian people predominantly inhabiting the Malay Peninsula, including the southernmost parts of Thailand, the east coast of Sumatra, the coast of Borneo, and the smaller islands which lie between these locations...
and other indigenous peoples, who comprise over half the Malaysian population).
History
The law was introduced by the British in 1948, the same year that the autonomous Federation of MalayaFederation of Malaya
The Federation of Malaya is the name given to a federation of 11 states that existed from 31 January 1948 until 16 September 1963. The Federation became independent on 31 August 1957...
came into being, with the intent of curbing opposition to colonial rule. The law remained on the statute books through independence in 1957, and the merger with Sabah
Sabah
Sabah is one of 13 member states of Malaysia. It is located on the northern portion of the island of Borneo. It is the second largest state in the country after Sarawak, which it borders on its southwest. It also shares a border with the province of East Kalimantan of Indonesia in the south...
, Sarawak
Sarawak
Sarawak is one of two Malaysian states on the island of Borneo. Known as Bumi Kenyalang , Sarawak is situated on the north-west of the island. It is the largest state in Malaysia followed by Sabah, the second largest state located to the North- East.The administrative capital is Kuching, which...
and Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
that formed Malaysia.
The Federal Constitution of Malaya and later Malaysia permitted Parliament
Parliament of Malaysia
The Parliament of Malaysia is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the House of Representatives and the Senate. The King as the Head of State is the third component of Parliament....
to impose restrictions on the freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
granted by the Constitution. After the May 13 Incident
May 13 Incident
The 13 May Incident is a term for the Sino-Malay sectarian violences in Kuala Lumpur , Malaysia, which began on 13 May 1969...
, when racial riots in the capital of Kuala Lumpur
Kuala Lumpur
Kuala Lumpur is the capital and the second largest city in Malaysia by population. The city proper, making up an area of , has a population of 1.4 million as of 2010. Greater Kuala Lumpur, also known as the Klang Valley, is an urban agglomeration of 7.2 million...
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
Social contract (Malaysia)
The social contract in Malaysia refers to the agreement made by the country's founding fathers in the Constitution. The social contract usually refers to a quid pro quo trade-off through Articles 14–18 of the Constitution, pertaining to the granting of citizenship to the non-Bumiputera of...
. (The social contract is essentially a quid pro quo
Quid pro quo
Quid pro quo most often means a more-or-less equal exchange or substitution of goods or services. English speakers often use the term to mean "a favour for a favour" and the phrases with almost identical meaning include: "give and take", "tit for tat", "this for that", and "you scratch my back,...
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
Parliamentary immunity
Parliamentary immunity, also known as legislative immunity, is a system in which members of the parliament or legislature are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior court of justice or by the parliament itself...
; 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
Conference of Rulers
The Conference of Rulers in Malaysia is a council comprising the nine rulers of the Malay states, and the governors or Yang di-Pertua Negeri of the other four states...
, 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
Malaysian general election, 1969
General elections were held in Malaysia on 10 May 1969, although voting was postponed until between 21 and 27 June in Sabah and Sarawak. It resulted in the return to power, with a reduced majority, of the ruling Alliance Party, comprising the United Malays National Organization , the Malayan...
. Despite their opposition, the ruling Alliance (later Barisan Nasional
Barisan Nasional
Barisan Nasional is a major political coalition in Malaysia, formed in 1973 as the successor to the Alliance . Along with its predecessor, it has been Malaysia's federal ruling political force since independence...
) coalition government passed the amendments, having maintained the necessary two-thirds Parliamentary majority. In Britain, the laws were condemned, with The Times
The Times
The Times is a British daily national newspaper, first published in London in 1785 under the title The Daily Universal Register . The Times and its sister paper The Sunday Times are published by Times Newspapers Limited, a subsidiary since 1981 of News International...
of London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
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 spoken of "the full realization that important matters must no longer be swept under the carpet..."
Provisions
The Sedition Act would be unconstitutional, as the Constitution guarantees freedom of speech, without Article 10(2) of the ConstitutionArticle 10 of the Constitution of Malaysia
Article 10 of the Constitution of Malaysia guarantees Malaysian citizens the right to freedom of speech, freedom of assembly and freedom of association...
, 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
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
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:
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
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
, 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
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
to three years in jail, a RM
Ringgit
Ringgit mostly refers to the Malaysian ringgit, which is the local currency in Malaysia, but it can also refer to the Brunei dollar or Singapore dollar in the Malay language. The word ringgit was originally used to refer to the serrated edges of Spanish silver dollars widely circulated in the area...
5,000 fine, or both.
Implementation
United Malays National Organisation
The United Malays National Organisation, is Malaysia's largest political party; a founding member of the National Front coalition, which has played a dominant role in Malaysian politics since independence....
(UMNO), the leading party in the ruling Barisan Nasional coalition, had provoked the massacres of Chinese in the May 13 Incident
May 13 Incident
The 13 May Incident is a term for the Sino-Malay sectarian violences in Kuala Lumpur , Malaysia, which began on 13 May 1969...
. The editor of an opposition organ was charged with sedition for alleging a government conspiracy against Anwar Ibrahim
Anwar Ibrahim
Anwar bin Ibrahim is a Malaysian politician who served as Malaysian Deputy Prime Minister from 1993 to 1998. Early in his career, Anwar was a close ally of Prime Minister Mahathir bin Mohamad but subsequently emerged as the most prominent critic of Mahathir's government.In 1999, he was sentenced...
, a former Deputy Prime Minister, had led to his political downfall; Anwar's lead counsel, Karpal Singh
Karpal Singh
Karpal Singh is a Malaysian lawyer and politician, who has been the Member of Parliament for the neighbourhood of Bukit Gelugor in the state of Penang since 2004...
, who was also deputy chairman of the opposition Democratic Action Party
Democratic Action Party
The Democratic Action Party, or DAP is a secular, multi-racial, social democratic Malaysian political party.The DAP is one of the three major opposition parties in Malaysia, along with the PKR and PAS, that are seen as electable alternatives to the Barisan Nasional coalition of parties...
(DAP), had also been charged with sedition after claiming Anwar had been poisoned by "people in high places". Lim Guan Eng
Lim Guan Eng
Lim Guan Eng is the 4th Chief Minister of the State of Penang and Secretary-General of the Malaysian Democratic Action Party . He is the son of Lim Kit Siang, Leader of the Opposition in the Dewan Rakyat from 1973 to 1999 and 2004 to 2008....
, a former Member of Parliament from the DAP, had likewise been found guilty of sedition in 1998 for accusing the Attorney General of failing to properly handle a case where the Chief Minister of Malacca
Malacca
Malacca , dubbed The Historic State or Negeri Bersejarah among locals) is the third smallest Malaysian state, after Perlis and Penang. It is located in the southern region of the Malay Peninsula, on the Straits of Malacca. It borders Negeri Sembilan to the north and the state of Johor to the south...
had been charged with statutory rape
Statutory rape
The phrase statutory rape is a term used in some legal jurisdictions to describe sexual activities where one participant is below the age required to legally consent to the behavior...
of a schoolgirl.
In 2003, the act was also invoked by then Deputy Prime Minister Abdullah Ahmad Badawi
Abdullah Ahmad Badawi
Tun Abdullah bin Haji Ahmad Badawi is a Malaysian politician who served as Prime Minister from 2003 to 2009. He was also the President of the United Malays National Organisation , the largest political party in Malaysia, and led the governing Barisan Nasional parliamentary coalition...
(who succeeded Mahathir bin Mohamad
Mahathir bin Mohamad
Tun Dr. Mahathir bin Mohamad . is a Malaysian politician who was the fourth Prime Minister of Malaysia. He held the post for 22 years from 1981 to 2003, making him Malaysia's longest serving Prime Minister. His political career spanned almost 40 years.Born and raised in Alor Setar, Kedah, Mahathir...
as Prime Minister of Malaysia
Prime Minister of Malaysia
The Prime Minister of Malaysia is the indirectly elected head of government of Malaysia. He is officially appointed by the Yang di-Pertuan Agong, the head of state, who in HM's judgment is likely to command the confidence of the majority of the members of that House of Representatives , the...
later that year); Abdullah stated that the government would charge those who opposed the change in educational policy emphasising the teaching of science
Science
Science is a systematic enterprise that builds and organizes knowledge in the form of testable explanations and predictions about the universe...
and mathematics
Mathematics
Mathematics is the study of quantity, space, structure, and change. Mathematicians seek out patterns and formulate new conjectures. Mathematicians resolve the truth or falsity of conjectures by mathematical proofs, which are arguments sufficient to convince other mathematicians of their validity...
in English
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
with sedition. That same year, the online publication Malaysiakini
Malaysiakini
Malaysiakini is a political news website published in English, Malay, Chinese and Tamil. Since its launch on November 20, 1999, it has been widely considered to be one of the leading non-government owned paid-news agencies in Malaysia. Compete.com estimates that Malaysiakini now attracts over...
was temporarily shut down under the Sedition Act after it published a letter criticising Malay special rights and compared the Youth wing of a government party to the Ku Klux Klan
Ku Klux Klan
Ku Klux Klan, often abbreviated KKK and informally known as the Klan, is the name of three distinct past and present far-right organizations in the United States, which have advocated extremist reactionary currents such as white supremacy, white nationalism, and anti-immigration, historically...
. Previously in 1978, the Sedition Act had been invoked in another case of educational policy, when Mark Koding argued in Parliament that the government ought to close down Chinese and Tamil vernacular schools.
Human rights advocates have alleged that the Sedition Act has an "excessively vague" definition of sedition. These critics charge that this vagueness constitutes "an invitation to abuse and authorities may seek to apply them in situations which bear no relation to the original purpose of the law". Although they concede that the act provides exceptions that would "clarify and narrow the scope of the offence", they allege that "Any rule which needs an exception in favour of pointing out that the rulers are misled is quite obviously unacceptably vague." It is also claimed that the Malaysian judiciary has "given an extremely wide interpretation to the crime of sedition", with the result of a chilling effect on open dissent to government policies.
In 2006, the DAP, which had been a vocal opponent of the Sedition Act and the Internal Security Act
Internal Security Act (Malaysia)
The Internal Security Act 1960 is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances...
(ISA), filed a police report against UMNO, whose annual general assembly had been noted for its heated rhetoric, with delegates making statements such as "Umno is willing to risk lives and bathe in blood to defend the race and religion. Don't play with fire. If they (non-Malays) messed with our rights, we will mess with theirs." In response, Information Minister Zainuddin Maidin said that this indicated that the Sedition Act continued to remain relevant to Malaysian society. He also denied that the government intentionally used the act to silence dissent or to advance particular political interests.
See also
- Internal Security Act (Malaysia)Internal Security Act (Malaysia)The Internal Security Act 1960 is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances...
- May 13 IncidentMay 13 IncidentThe 13 May Incident is a term for the Sino-Malay sectarian violences in Kuala Lumpur , Malaysia, which began on 13 May 1969...
- Sedition Act (Singapore)Sedition Act (Singapore)The Sedition Act is in Chapter 290 of the Statutes of Singapore. It was last revised in 1985.In September 2005, the Sedition Act was first used on individuals when three men, including a teenager, were charged for making seditious and inflammatory racist comments on the Internet.-Seditious...