Articles of Law --- Seditious statements

ARTICLES OF LAW
By BHAG SINGH

It is generally accepted that it is seditious to question any of the sensitive issues. What needs to be appreciated is what is meant by ‘to question’.

SEDITION as a subject was hardly talked about until the 1970s and 80s and then receded into the background until recently, when it again started receiving a considerable measure of attention.

According to some writers on English Law, the first definite instance found of a law relating to quasi sedition offences was a provision in the First Statute of Westminster passed in the year 1275 which provided a penalty for the publishing of false news or tales “whereby discord may grow between the King and his people” or “the great men of the realm”.

However, control of the affairs of the nation gradually devolved upon elected representatives of the people – Parliamentary Government by means of a Ministry nominally the King’s servant but really representing the majority party in the House of Commons. Thereafter, laws of sedition came in the 18th century to constitute “any written censure upon public men for their conduct as such or upon the law or upon the institutions of the country and to take care of public disturbances which had certain tendencies”.

Generally, the English Law on the subject may be encapsulated in the words of Fitzgerald J. in Reg v. Sullivan:

“Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or disaffection, to create public disturbances or to lead to civil war, to bring into hatred or contempt the sovereign and government, the laws or the constitution of the realm and generally all endeavours to promote public disorder.”

Our legislation

Our own law, though deriving its origins from English Common Law, is based on the Sedition Act 1948 which was earlier promulgated as the Sedition Ordinance 1948 in Malaya and extended to Sabah and Sarawak in 1964. It is seditious where what is said or done has a seditious tendency.

This is so when the words or acts have the effect of bringing into hatred or contempt or to excite disaffection against any Ruler or against any Government or to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established.

Otherwise, it is seditious if it is to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State or to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State. So, too, if it is to promote feelings of ill will and hostility between different races or classes of the population of Malaysia.

Finally, it is sedition to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution. This reference to seditious tendency was incorporated by a 1970 Amendment as Section 3(1)(f).

The preceding provision makes it seditious to just question any of the matters stated. But what is meant by “to question”?

Local decisions

Statements made by a Member of Parliament came for adjudication before the Court in Public Prosecutor v. Mark Koding 25 years ago. The issue in that case was whether Article 152 of the Federal Constitution, which is one of the sensitive issues, had been questioned.

In a speech in Parliament, Koding had argued for disallowing the continuation of Chinese and Tamil schools and suggested that the schools be closed. He also asked for the cessation of the use of road signs in those languages. He went on to say that if Article 152 stood in the way then the Constitution ought to be amended.

In the days that followed, he was promptly charged for touching on a sensitive issue and what arose for consideration before the Court was whether he had questioned one of the sensitive issues as stipulated in Section 3(1)(f) in the Sedition Act 1948.

Ten years earlier, a similar assertion had been made, though not in Parliament. Utusan Melayu had published an article entitled, “Hapuskan sekolah-sekolah beraliran Tamil atau Cina di negeri ini”.

It was a report of a talk given by an MP, a then prominent Malay leader, at the National Education Congress in Kuala Lumpur. He, however, did not concede that what he said at the Congress was the message conveyed by the headline of the newspaper report.

In the result, the sub-editor who had decided on and inserted the heading, was convicted, with the heading held to be seditious within the meaning of section 3(1)(f). Ong CJ, who heard the appeal, said that the result and effect of the 1970 amendments made in the 1948 Act could be said to widen the definition of “seditious tendency” by making virtually taboo any topic of public discussion calling into question the provisions of Part III or Articles 152, 153 and 181 of the Federal Constitution.

This case led to the perception that to make such statements was seditious Koding would no doubt have been aware of the view of the law when he made the statements but he presumably did so in the belief that he would be immune to prosecution because he was speaking in Parliament.

However, the court took the view that advocating the closure of Tamil or Chinese schools was not in itself seditious in the context of Article 152 of the Federal Constitution.

Mohd Azmi J. had the strictly legal point of view when he acknowledged that “whether or not such closure is advisable or feasible is another matter to be decided elsewhere and not in this court. There is nothing unlawful in allowing Chinese or Tamil schools to continue”.

The Court decided that there had nevertheless been a breach of section 3(1)(f) by suggesting the amendment to the Constitution to allow the abolition or closure of such schools, and for the discontinuance of the use of the languages on road signs.

It is a basic principle that the eventual decision in a case depends on the specific facts that are before the court when a decision has to be made. This is even more so when it comes to sedition.

As stated in a study on the Law of Sedition in India, the dimension of freedom of speech as a right is not rigid but a variable one depending upon time, place and circumstances. The extent of the right depends, amongst others, on the following factors: the political situation of the times; the economic prosperity of the society; the audience to which the speech is addressed or amongst whom the writing is circulated; extent of tolerance developed by the people, and the police force available to the State.

It will not be out of place to say that when touching on sensitive issues, it may not be a matter of strict legal interpretation alone. Given that social, cultural and other sensitivities are involved, there is a definite need to exercise a broader kind of wisdom.