Here is some recollection of facts and figures that you need, or might interested to know about our Sedition Act 1948.
Interestingly, the Sedition Act was passed by our colonial master on 1948 to combat communist insurgency. In essence, it was never debated in Malaysia's Parliament and received royal assent from Yang Di-Pertuan Agong.
Be that as it may, this ancient legislation is still haunting the people's fundamental human rights guaranteed by our highest law in the land, the Federal Constitution - Article 10: Freedom of Speech.
Limitation on Freedom of Speech
Article 10(1)(a) of the Federal Constitution provides, everyone citizen has the right to freedom of speech and expression, but subject to limitation and restriction that could be set by the Parliament via enacted legislation.
The charge launched by the prosecution against UM academician, Dr. Azmi Sharom raised one constitutionality question, where his defence counsel Gobind Singh challenged the Act's constitutionality by arguing the Act is unconstitutional as it was not passed by the Parliament. Therefore, the Sedition Act could not be used against freedom of speech.
The position may stands, but I think the judiciary could award a wide definition on "Enacted by Parliament". Sedition Act was a product from Law Reform Commission. The prosecution argued that by virtue of Article 162 of the Federal Constitution, the Sedition Act could be saved and remained in force until it is repealed by the authority, simply because Article 162 could save pre-Merdeka enacted law.
However, Gobind Singh raised the Act was unconstitutional at the first instance, thus it would not be saved by Article 162. And this question is now lies in the hands of High Court.
Essence of Sedition Act
Skipping the hassles in understanding the wordings, the Sedition Act negates one's mens rea (intention) to commit crime, ie to produce seditious words or acts. Quite similar to our existing Dangerous Drugs Act where for trafficking offence under S39B, the accused is deemed by the law to have intention on the trafficking unless and until he disprove it. This is essentially against the spirit of golden rule in criminal laws, where one is innocent until proven guilty and the prosecution remains a legal duty to prove beyond reasonable doubt.
If you are charged under the Sedition Act, it could be termed as a strict liability. The prosecution would only have to show you have committed the crime, ie uttered the seditious words and tantamount to seditious in the eyes of the court.
Therefore, the court is applying a subjective test in determining whether the accused had uttered seditious words. Subjective test means, the court will see the seditious word(s) in isolation, then will look into the paragraph, then finally will read the statement/article as a whole. Simply speaking, if the judge think this word so uttered is seditious, then it is seditious, vice versa.
How Prosecution Utilised the Act?
Fearly speaking, the prosecution need not to prove one's intention in uttering the seditious words, as I have repeated above. Further, when the prosecution in charging one under the Sedition Act, he does not have to prove the tendency part. In other words, like Dr. Azmi Sharom's case, the prosecution did not point out the tendency part which is 'seditious'. In fact, they do not have to do so. The Court in Mat Suhaimi v PP and Fan Yew Teng v PP have affirmed the same.
It is a 'free charge'. No intention need to be proven, no particular word need to be shown; the moment you uttered any word that came close the the wide definition of 'seditious tendency', you got caught.
I am not against restriction in limiting freedom of speech, and I also agree and respect that it can be limited to certain extent, as spell out in the Federal Constitution. But nonetheless, the wide definition of 'seditious tendency' had seriously and violently defeated the criminal justice system. It can meant to be limited but must with higher degree of tolerance and respect towards the rules of law.
The Malaysian Bar has appealed to all lawyers and pupils-in-chamber and even public to walk for justice and freedom on this 16 October 2014 at Padang Merbok.
See you there!