Sedition can be defined as an incitement of resistance to or insurrection against lawful authority of a state. In other words, sedition is a crime of saying, writing, or doing something that can encourage people to disobey government of their country or state. In 1948, nine years before Malaya’s independence, Sedition Act was adopted into Malaya by the British rulers from existing 19th century legislation from colonial India in order to combat communists. The act continues to exist in its original form until today. Sedition Act 1948 is a set of law that is enacted in order to prevent any public actions that can be interpreted as ‘seditious’. How can we know that an act is actually can be constituted sedition? Based on the existing interpretation of this Act, any act or words that have ‘seditious tendency’ can be prosecuted as a criminal offence. According to Section 3(a) of Sedition Act 1948, seditious tendency is defined as to bring into hatred or to excite disaffection against any Ruler or against any Government and a person that found guilty under this act may be sentenced to three years in jail, RM5,000 fine, or both. Research done shows that this act brings more drawbacks rather than positive impacts. Therefore, Sedition Act 1948 should be abolished because it acts as a tool of repression, a draconian law and it violates fundamental principle of criminal offence.
First of all, law should be used as a tool for social change and not as a tool of repression to stifle free speech and expression. The importance of freedom of expression in a democracy has been stressed by a number of international courts as the freedom of expression is a fundamental human right and also the main key to democracy, which can flourish only in societies where information flows freely. According to the International Commission of Jurists (2014), the Malaysian government’s increased use of the Sedition Act 1948 to stifle freedom of expression and silence voices perceived as challenging governmental policy on account of the open rational and objective discussion that will surely provide a deeper commitment to core principles of the Federal Constitution. However, government must recognise that just because an individual raises a question or thought it does not mean that core themes such as religion, language, special position and monarchy will be dismantled. It clearly shows that the Sedition Act is actually intended to create a deterring effect and strike fear in Malaysians, but one way or another, government still urged the countrymen to continue to speak out. This meant the death of human rights and freedom of expression in Malaysia, according to Phil Robertson and Human Rights Watch (2014). In view of the reality, discussion on sensitive issues as contained in the Sedition Act are no longer sensitive since it is being openly brought up to scrutiny and question by all and sundry in the internet and in other social medias. Therefore, by continuing to silence the critics using a repressive law like the Sedition Act is definitely a step in the wrong direction as it would further alienate the people from any government which claims to be a government for the people and by the people, that is to say a democratic country. Hence, any law that criminalize free expression have no place in a modern Malaysia due to incompatible with international human rights standards.
Next, according to Amnesty International Malaysia (2014), Sedition Act is a draconian law. Draconian in law term means excessively harsh and severe as it severely restricts the parlimentarian’s duty to speak without favour when raising issues of public interest. Parliamentary privilege that provides lawmakers with legal immunity to discuss matters freely in Parliament does not apply in cases involving the Sedition Act 1948. Parlimentary privilege is thus no defence for words that are considered to be seditious. The Sedition Act 1948 actually spells the death knell for the opposition in any parliamentary democracy and therefore this is another justification for its repeal. The relevance of the Sedition Act today must be looked at along the lines of maintaining public order by deterring and punishing those who incite violence and public disorder, and in curbing the threat of terrorism. However, our Sedition does not address these concerns. It only seeks to criminalise speech or expression that is critical of the government, its policies and its institutions. This endangers values we hold dear in a democratic society. Opposition MPs or even MPs from the ruling party, as the elected representatives of the people, should be allowed to criticize the administration of government and its policies since it is the legitimate expectation of the people in accordance with the principles of transparency and accountability. In Dr. Ooi’s case for example, it was decided that seditious words are words that tend to make the government insecure. In retrospect, it is the prime objective of any opposition parties when it engages in any political debate or discussion. Otherwise it would mean that political parties would have no role to play in the democratic process and that would be against the venerable principle that the opposition provides the check-and-balance in government. Consequently, the notion of having opposition in Parliament is the bastion to ensure transparency and accountability in the administration of the government. For example, in Kenya, they have repealed its Sedition Act after it was found that it was more of a political offence rather than a criminal one. It was seen as being used as a political tool to silence the opposition.
Last but not least, a further problem with the Sedition Act 1948 is that it breaches the fundamental principle that any criminal offence should contain a mens rea or mental element, known in Latin as, actus non facit reum nisi mens sit rea. The Sedition Act 1948 disregards this vital essential condition by substituting ‘intention’ with the idea of a ‘seditious tendency’. Section 3(3) of the Act clearly stipulates, that the intention of an accused person is irrelevant if they did something which has a seditious tendency. Thus an individual who had no intention of committing sedition can be imprisoned for up to three years simply because of uttering something which, for example, causes certain individuals to become dissatisfied. It is disproportionate when high penalties of a minimum three years’ jail to a maximum 20 years’ jail for offences that do not require proof of intention. Auxiliary, it is fundamental requirement that penal laws like the Sedition Act contain a mens rea element. In regard of the dispensation of a fundamental element like mens rea to establish criminal liability, the Sedition Act violates the principles of fundamental justice. This significant ground is sufficient justification for the repeal of the Sedition Act 1948.
In conclusion, the Sedition Act 1948 will not guarantee peace and harmony, but killing freedom of speech and expression, and will only create a “culture of fear” among citizens in Malaysia. Therefore, Sedition Act should be abolished as it acts as a tool of repression, a draconian law and it violates fundamental principle of criminal offence.