Ambiga Sreenevasan said Sedition law is draconian, a weapon in the hands of UMNO

 

Youth and Sports Minister Khairy Jamaluddin has again urged Prime Minister Najib Abdul Razak to respond to issues that have been raised against him, particularly those by former premier Dr Mahathir Mohamad.

Asked whether the prime minister has kept his silence for too long, Khairy said he believes the issues must be addressed.

Sedition law skewed the balance between free speech and public good

Malaysia is at the cross roads. Should draconian and repressive laws like the Sedition Act which criminalises speech and expression be relegated to the dustbin of history in the country’s march forward to greater openness, democracy and a just rule of law? This study on the Sedition Act 1948 by Jayaseelen Anthony cannot be more timely to contribute to the national debate on a new Malaysia built on genuine democracy, freedom, justice and solidarity of a plural society of diverse races, religions, cultures and languages.

Justice delayed is justice denied has become a common parlance for expressing anger over the miscarriage of justice anywhere in the world.  But most of the times people’s memory fades and they forget about injustices and ultimately it does not take much time for things to get back to normal.

India as a nation has seen many miscarriages of justice.  There have been many instances when people accused  got away scot free while the victims and their kins kept waiting for justice only to know that justice can never be theirs.

 observed that terms such as ‘grossly offensive’ were vague – making it difficult for both law enforcement agencies and potential offenders to know the ingredients of the offence! susceptible to misuse, to muzzle free speech.This was precisely the result of application of  Sedition law as cases started pouring in that clearly highlighted the draconian nature of the law. Most recently, the provision was used for allegedly posting material against Rosmahwas applied even though there was hardly any evidence that the actions of the accused constituted a larger danger to public or individuals. Yet different state administrations have arbitrarily used the provision to muzzle IT content. This also flies in the face of government’s assurance in court that it would ensure the provision isn’t misused Plus the internet has become a part of everyday life. To see this as a danger is wrong. On the contrary IT communication platforms empower citizens and shore up accountability in democracy. Besides the law already provides for reasonable restrictions on free speech and criminalises offences such as incitement to violence. Seen in this context, Section 66A skewed the constitutional balance between freedom of expression and public good. It’s better scrapped from the statute books.

'Okay to disrespect courts' - Ambiga raps Nancy

Contempt law threatens freedom

In a democracy the people are supreme and all authorities, whether President or Prime Minister of India, other ministers, judges, legislators, bureaucrats, police, army and so on are servants of the people. Since the people are the masters and judges their servants, the people have a right to criticise judges just as a master has the right to criticise his servant.Why should Indian judges be so touchy? When the House of Lords delivered the judgment in the 1987 Spycatcher case, a prominent newspaper published as its headline “You Fools”.

Fali Nariman, the eminent Indian lawyer, was in London at that time and he asked Lord Templeman who had delivered the majority judgment why the judges did not take action for contempt of court. Lord Templeman smiled, and said that judges in England do not take notice of such comments.

In Balogh vs Crown Court, a case contested in England in 1975, the defendant told the judge “You are a humourless automaton. Why don’t you self destruct?” The judge smiled, but took no action.

should have reminded themselves of the following words of the celebrated Lord Denning in R vs Police Commissioner (1968): “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”A basic defect in the law of contempt of court in India is that it is uncertain. Nariman described it as “dog’s law”. The British jurist Bentham said that when a dog does something nasty you beat it. Similarly, the law of contempt of court is known only when someone is punished, and thus it is a standing threat to freedom of speech.

We may consider an example. In Duda’s case (1988) the facts were that a Union cabinet minister had said that the Supreme Court sympathised with zamindars and bank magnates. He further said “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for haves”.

A contempt of court petition was filed against the minister but no action was taken by the Supreme Court. Nariman wondered whether, if the statement was made by a common man and not a minister, that person would have gone unpunished.

The present law of contempt of court in India is a hangover of the original law on this subject in England. This originated from an undelivered judgment of J Wilmot in 1765, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.

But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king, who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties, he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty which a king must have, to secure obedience.

In feudal times, the king was supreme, and the people were his subjects. They could not criticize him, and such criticism was punishable.

In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants.

Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.

This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb (1981) A.C. 303, “The description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”.

“Justice is not a cloistered virtue,” said Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men”.

In R. Vs. Commr. of Police (1968) 2 QB 150 Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”.

Sometimes an upright judge is unjustifiably criticized. The best course of action for such a judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad enough shoulders to shrug off baseless comments without getting perturbed or influenced.

Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case ( Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316) “YOU FOOLS”. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority, why the Judges did not take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion.

In Balogh vs Crown Court at Albon (1975) AC 373, the defendant told the Judge “You are a humourless automaton. Why don’t you self destruct?”. The judge smiled, but took no action.

Now coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as ‘Dog’s Law’.

He quoted Bentham, who said that when a dog does something nasty we beat him for it. Similarly, the laws in England become known only when someone is punished by the courts. The same is true about the law of contempt in India, and thus it is a standing threat to freedom of speech.

To illustrate, in Duda’s case AIR 1988 SC 1208, a Union Cabinet minister said that the Supreme Court sympathized with zamindars and bank magnates.

He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for the haves”. No action was taken against him. Nariman asked whether if such a comment had been made by an ordinary man the court would have taken no action.

Moreover, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1770 2015). Where is the certainty or consistency in the law ?

We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and Articles 129 and 215 which give the Supreme Court and High Court the power of contempt. How are these provisions to be reconciled. In my opinion, since Article 19(1)(a) is the right of the people who are supreme in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary.

It follows that the contempt power cannot be exercised because people are criticizing a judge. It can only be exercised if someone makes the functioning of the judge impossible eg if while a judge is hearing a case someone jumps on to the dias and tries to run away with the court file, or if he attacks or threatens a witness.

If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is not contempt, for he has not stopped the functioning of the court.

But if he keeps shouting in court the whole day, and despite warning does not stop, he is obviously not letting the court function, and this would be contempt. After all disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them.

I submit that the time has come now for Parliament, the judiciary and others concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and bring about necessary amendments.

 

The sedition law, introduced by the British in Malaysia , outlaws speech that "brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in Malaysia." The penalty for running afoul of the statute: up to life imprisonment.

 Sedition law is archaic and draconian. It was introduced by the British to keep political leaders  in jail.Sedition law is a weapon in the hand of the state. It can be misused by the state in many ways. If somebody is charged with sedition, it will take a long time to get the bail and come out. The punishment is also very harsh.

This is what the Sedition law says -

Sedition.-- Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards The expression" disaffection" includes disloyalty and all feelings of enmity. Explanation 2.- Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.- Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]

Conflicts of interest between government and UMNO 

Ambiga Sreenevasan said Nancy Shukri  the foot-in-mouth minister is a bigger threat than a matchstick

UMNO stings itself. Najib Come into Compliance

Expand judicial reforms: After legitimate criticism, it’s time to pass the Judicial Standards and Accountability Bill

Our pot-holed system breeds Minister like Nancy Shukri

After long and in-depth research, full of arduous general view of Najib’s governance style is that it is not an impressive mode of working: he appears to be indecisive,wrongly engaged and not demanding Could it possibly be true? Najib begin to believe what some of his admirers have started to suggest with incremental passion, that he is M alaysia’s best-ever Prime Minister? The answer must be no. He is clearly not self-delusional. may be he had to fend off the ‘Young Turks’? sought to place a well-thought out policy position on record; they were, in a very real sense, creating precedence, administrative culture and an archive of an incubating government. To suggest that this was worse than the petty, ego-heavy squabbling for turf and lucrative territory that is the hallmark of the current coalition, is an extraordinary disservice to Mahathir founding father whose ideas and sacrifice is co-opting the senior bureaucracy and police. Essentially, he both scares and empowers high officials, making them his primary instrument of decision-making. Hegemonic command depends on a blend of coercion and consent.READMOREhttp://lawmattersjournalmalaysia.blogspot.com/2014/10/minister-nancy-shukris-adventurism.html

Former Bar Council president Ambiga Sreenevasan has told off de facto law minister Nancy Shukri over her statement that it is “disrespectful but not unlawful” to table amendments to the Sedition Act 1948 now.

s before tabling amendments to the Sedition Act. – The Malaysian Insider pic by Kamal Ariffin, April 8, 2015.The people need to understand how little respect Putrajaya has for the country's judiciary, said former Bar Council president Datuk Ambiga Sreenevasan, after the government yesterday tabled amendments to the Sedition Act, which will also include refusing bail to those charged under the colonial-era law.

She said Putrajaya did not seem to care that the constitutionality of the act was being challenged in the court by academic Dr Azmi Sharom and as such, any amendments to it was "absolutely appalling".

Azmi was charged under Section 4(1)(b) and Section 4(1)(c) of the Act over his comments in a news article titled “Take Perak crisis route for speedy end to Selangor impasse, Pakatan told”

Azmi then filed an application, saying that Section 4 was unconstitutional and violated Article 10 of the Federal Constitution, which guarantees freedom of speech. The case was referred to the Federal Court.

"The Sedition Act is being challenged by Azmi with the argument that it is unconstitutional and is, therefore, null and void," she said in a forum titled "What is a moderate Malaysia for Malaysians?" in the capital city of Kuala Lumpur last night.

"And what does the government do before the decision by the court? They put in amendments. They don't care what our federal courts have to say about the Sedition Act. To me, this is absolutely appalling."

Ambiga, who is the patron of people's movement Negara-ku, said Putrajaya had not discussed the amendments with any stakeholders, including civil society and the opposition, before tabling the amendments which were “extreme”.

"They have not given any time (for discussion). To me, this is all very extreme. Extreme measures being taken by the government to seal our lips."

Ambiga also touched on the Prevention of Terrorism Act (Pota), which was passed in Parliament early yesterday after more than 14 hours of debate, calling it a law with "horrendous provisions".

"It is not just the rehash of the ISA (Internal Security Act). They have added to it," she said to a crowd of about 150.

"And this is very strange because it is more oppressive than the laws in countries where the threat of terrorism is worse. Besides, they arrested 17 people without the need of Pota. How much legislation do our authorities need, really?"

The former Bersih co-chair said despite Putrajaya's assurance that the law would not be used against political dissent, there was no reason to trust the government's promise.

"In light of all these, can we believe those who go to Parliament and say, 'Oh we will not be using this against the politicians'. Can we believe that? In fact, can we believe anything they say?"

She was referring to the fact that in the last month, more than 100 people, including opposition politicians and activists, have either been arrested or investigated under the Sedition Act, Peaceful Assembly Act and the Penal Code.

Prime Minister Datuk Seri Najib Razak had earlier given his assurance that the new law would not be used for political purposes, saying that the executive arm of the government would have no say in whether to detain an individual.

However, opposition lawmakers have poured water on Najib's assurances, following his dismal track record of keeping promises.

This includes the promise Najib had repeatedly made to repeal the Sedition Act but later backtracked.

Ambiga said what was troubling was the fact that Putrajaya was practising selective prosecution, where certain groups or people were "completely exempt" from the law while others were hauled up for minor things.

"In fact, we are beginning to look ridiculous. Seriously ridiculous.

"What the government doesn't realise is that extremism is not only about racial or religious extremism but it is also about an extreme abuse of power. Total and utter abuse of power," she added.

Attacks on the press, the lawyer said, were also a sign that Putrajaya was becoming more desperate, referring to the arrests of two senior executives and three editors from The Edge and The Malaysian Insider under the Sedition Act over a report published on March 25, which said the Conference of Rulers had rejected a proposal to amend a federal law that would pave the way for hudud to be enforced in Kelantan.

"When they start muzzling the press, we really have a problem. Before we had issues with the publishing licences but now they arrest editors and keep them in prison overnight. What is the thought process that goes into that, really?

"These extreme measures taken to stifle views are not going to stop many of us but it will stop others. Some people will be afraid."

However, all hope is not lost, Ambiga said.

"Our hope lies in the next generation. I can tell you, they are... I was very impressed. They are not buying everything that is being said to them.

Are judges made to measure?

An over-confident, ill-informed Prime Minister Modi has attacked the judiciary with a contemptuous allegation, “5-star activists were driving the judiciary… through scaremongering.”

He has also created a new concept of “perception justice” which he regards as alien to the Constitution. His remarks judges are “scared (because) of what will happen”, were even more derogatory. Then a clarion call: “Everyone — be it government, media or the class 5-star activists — will have to work to strengthen the judiciary”.

At first this may seem as an irresponsible joke. It is certainly irresponsible, but hardly a joke and it definitely is contempt of court. In the Namboodripad case (1970), the judiciary treated the allegation of class bias as contempt. Not the best of decisions, but it is the law. Modi has made a strong allegation of bias, of judiciary abdicating to fivestar activists and of the urgent need for the government, people, media and activists to “strengthen” the judiciary. It does not deserve the retaliation that Modi runs a government which has multiple-star predators whom he chooses over people.

A mortgaged government prefers a weak judiciary. Many years ago, Nani Palkhivala coined a phrase: A judiciary made to measure. This was to attack judges and judicial appointments which supported Indira Gandhi’s regime. The response to this was given by Mohan Kumaramangalam in Parliament, a ‘committed’ judiciary. The concept of a ‘committed’ judiciary has firmer foundations than the present 5-star attack by Modi. The idea of a committed judiciary was controversial.

Protagonists of the idea said it meant commitment to the secular and socialist ideals of the Constitution, antagonists felt that this required commitment not to any constitutional goals but Indira’s regime.

In other words, it meant a regime judiciary. A retort was made by the sagacious Krishna Iyer, then a Kerala judge: “In the inevitable chemistry of social change, judges are certainly not anti-catalysts” The insulting comments made by Modi have no depth.

In the first place the judges are accused of not understanding the Constitution which they have to be taught and disciplined to understand. Indeed, Modi’s calls for a campaign to teach the judges reminds one of Kipling: “O, the years we waste/And the tears we waste/And the work of our blood and hand/Belong to the people who do not know/And do not understand.” Chill Mr Modi! The second accusation is that the entire judiciary is not to Modi’s liking. In other words, Modi wants regime judges who the public should train. One basic structure of the Constitution emphasises that elected politicians are custodians of the political texts and judges are custodians of the rule of law and justice texts of the Constitution. The Constitution is a dynamic document.

Both our political rulers and the judges have to uphold the Constitution. The last word on the Constitution is with the judges. Politician-driven governments have to conform to the rule of law. In India, they simply don’t. At a more mundane level, it is the duty of the judges to ensure that the letter and spirit of the law is obeyed. Judges also have to decide whether laws are valid, reasonable and reasonably administered.

But for the signal failure during the Emergency, judges have been doing precisely this. Modi is wrong when he says politicians can change their decisions but there is no further appeal in the highest court. Judges overrule earlier decisions, have the power to reexamine their decisions through review and curative procedures.

Political decisions are reviewed on policy considerations. The judiciary decides on the basis of principle — after discussing principles and their application thread bare. Of course, judges make mistakes and are criticised for it.

They have some process for rooting out corruption in the judiciary. This process is weak and needs vigorous reconsideration. PIL was invented and used over the years for social justice, environment and anti-graft. It is a massive innovation, opening the judiciary to be more accessible and sensitive to the Constitution’s true goals. If this had not surfaced, the executive would have raped the environment, corrupted social justice programmes and amassed even more wealth. All this happens all the time. Modi wants a judiciary committed to Modi. He wants dictatorial powers undisciplined by the rule of law. A ‘Modi’ judiciary is anathema to our Constitution. Modi refers to 5-star lawyers. Who are they? The lawyers with fat fees or pro bono PIL lawyers?

Curiously, Modi has multi-star clients to whom he wants to hand over the country. He is still in demagogic rather than democratic mode. Is he fit to have any role in appointing judges?

Sedition under the law of this country – N.H. Chan

Thursday, 11 June 2009 06:45am

JUNE 10 – Prelude: Please read it before reading the article I write this article so as to apprise the people who, in the mind of the general public, have taken the law into their own hands through the harassment of law abiding citizens of this country with the threat of using the Sedition Act 1948 on them. They should not have done it without first taking expert legal advice on the technical and difficult law of sedition under the Act.  After you have read this article, I am sure you will agree with me that the law of sedition is not easy for a layman to understand. Even lawyers and judges have found great difficulty in understanding it – let alone an uninitiated policeman. If the police are not careful, one of these days they will find themselves at the receiving end of a suit for malicious prosecution, false arrest or whatever the victims of their harassment would throw at them. I hope you will bear with me if this time I am not able to explain difficult law in simple language as much as I would like to. It is at a time like this that I really appreciate the great ability of the late Lord Denning who was so adept at explaining difficult law to us ordinary folk. 1870 India lives on in 21st century Malaysia In 1986, I was the judge who tried Mr Param Cumaraswamy for sedition under s 4(1)(b) of the Sedition Act 1948. At the end of the trial, I acquitted him. But first, a little bit of history – it is necessary to understand the historical development of how this bit of archaic legislation from 1870 India migrated to Peninsular Malaya in 1948 (Sabah in 1964 and Sarawak in 1969), and how this law has been implanted in modern Malaysia. While other countries of the Commonwealth, of which Malaysia is a member, have advanced into the modem age, in this country, time has stood still. We are still in the time of Sir James Stephen in 1870 British India. This was pointed out by Sinha CJ in Kedar Nath v State of Bihar [1962] AIR, SC 955: “Section 124A was not placed on the Statute Book until 1870, by Act XXVII of 1870. There was a considerable amount of discussion at the time the amendment was introduced by Sir James Stephen ….” The result of my research into the law of sedition is embodied in the judgment of PP v Param Cumaraswamy [1986] CU (Rep) 606. I am sorry for not being able to give you the MU citation – it happened so long ago and I do not have access to a law library. At page 619, I said: “Sir James Stephen, you will remember, was the Judge whose definition of sedition appeared as article 93 of the Digest of the Criminal Law. In facts Section 124A which Sinha CJ had reproduced in the passage which I have just read was the work of Stephen J. Nowhere in 124A of the Indian Penal Code did Sir James include the further qualification of incitement to violence or inciting others to public disorders as an ingredient of the offence. “As I have said earlier (see my decision when I called on Mr Cumaraswamy to enter on his defence), ‘Although it may appear to be the position in English case law that incitement to violence or inciting others to public disorders is an essential ingredient of sedition, it is not so in a criminal code which has as its model Stephen’s definition’.” Incitement to violence or inciting others to public disorder is not an ingredient of sedition Sir James Stephen was the author of Section 124(A) of the Indian Penal Code. He did not in drafting that section make incitement to violence, or the tendency or the intention to create public disorders, the gist of the offence of sedition. Nor did he make them the gist of the crime in his definition in Article 93 of the Digest. And Article 93 of the Digest was used as the model for the crime of sedition in the Criminal Code of the Gold Coast. So that when we look at Section 124(A) of the Indian Penal Code or at the Criminal Code of the Gold Coast on sedition, or our own Sedition Act (which I have previously said was modelled on Stephen’s definition), we are merely looking at the definition of sedition as apprehended by Sir James Stephen, and not at English case law ... which had developed separately from Stephen’s definition. Stephen’s definition has been codified as the law of the Gold Coast and of this country. And Wallace-Johnson v The King [1940] AC 231 has laid down that since the law is contained in a code, “the Court must look for the ingredients of the offence from the codified law and not import principles which have been established by English case law, and that, accordingly there cannot be imported into the offence (as created under the codified law) the additional ingredient of incitement to violence or inciting others to public disorder.” The view expressed by Sinha CJ in the Indian Supreme Court in Kedar Nath cannot by any means be supported. In my judgment, the correct view is that as laid down by the Privy Council in Wallace-Johnson. Therefore, as I have explained above, incitement to violence or inciting others to public disorder is not an ingredient of the offence of sedition in this country. Nor is intention an ingredient of the crime of sedition Having got that off my chest, the next thing I need to explain is why mens rea is not a necessary ingredient of the crime of sedition under our Sedition Act 1948. As every law student knows, mens rea is Latin for “intention”. Here is how I explained it in PP v Param Cumaraswamy. I said at page 612: “I have shown that the model for subsection 8 of Section 326 of the Criminal Code of the Gold Coast was Stephen’s definition of sedition in Article 93 of the Digest. In Wallace-Johnson the Privy Council has laid down that incitement to violence is not a necessary ingredient of the crime of sedition under the Criminal Code of the Gold Coast. A fortiori, inciting others to public disorders is not a necessary ingredient of sedition. “In Stephen’s definition and as well as the Criminal Code of the Gold Coast, a seditious intention is an essential ingredient, but Stephen in Article 94 of the Digest had expressed the view that intention is no more than the natural consequence of the words, and the Privy Council in Wallace-Johnson has held that it is not necessary to prove actual intention. It is enough if the words are seditious by reason of their expression of a seditious intention as defined in the section. “It looks as if it was with hindsight that the Sedition Act came to be drafted. If intention requires no more mens rea than an intention to publish the words which were published; if it is not necessary to prove actual intention because seditious words are words which are ‘expressive of a seditious intention’ as defined in the section, then the gravamen or an essential ingredient of sedition is not mens rea (intention) but an actus reus (Latin for guilty act). That is, the words must have a tendency (a seditious tendency) to achieve one or more of the objects specified. Instead, all that the prosecutor needs to prove is a seditious tendency This is what I said in Param Cumaraswamy, page 611: “In both the Stephen and the Criminal Code of the Gold Coast definitions an intention to achieve one or more of the objects specified in the definition is an essential ingredient of the crime of sedition. The important question is whether the ‘intention’ must be proved. In Article 94 of the Digest (4th edition) Stephen put it thus: “In determining whether the intention with which any words were spoken, any document was published, or any agreement was made, was or was not seditious, every person must be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.’ “Stephen’s view did not require any more mens rea than an intention to publish the words which were published. It would not be necessary to prove an actual intention to achieve any one of the objects specified.” In the Privy Council case of Wallace-Johnson v R [1940] AC 231, it was argued on behalf of the appellant Wallace-Johnson, see page 234: “(a) that both in English common law and in the Criminal Code in question there must be some evidence of intention outside the mere words of the instrument before a seditious intention can be said to exist; and (b) that in the present case, when the document is read, there cannot be found in it any seditious intention at all; and therefore before the appellant can be convicted there must be some evidence of seditious intention extrinsically, and, there being none, this conviction cannot stand on any ground.” The judgment of the Privy Council was read by the Lord Chancellor, at p 240, in which he said: “Seditious words,” in the terms of sub-s 8, “are words expressive of a seditious intention”. Then he went on to say, at page 241: “The submission that there must be some extrinsic evidence of intention, outside the words themselves, before seditious intention can exist, must ... fail ... If the words are seditious by reason of their expression of a seditious intention as defined in the section, the seditious intention appears without any extrinsic evidence. The Legislature of the Colony might have defined ‘seditious words’ by reference to an intention proved by evidence of other words or overt acts. It is sufficient to say they have not done so.” The headnote in the report of Wallace-Johnson has summarised accurately what was said by the Lord Chancellor. It reads, at page231, thus: “If the words complained of are themselves ‘expressive of a seditious intention’ as defined in the section they are ‘seditious words’. It is not necessary to produce any extrinsic evidence on intention, outside the words themselves, before seditious intention can exist. If the words are seditious by reason of their expression of a seditious intention as defined in the section the seditious intention appears without any extrinsic evidence.” So that in this country, instead of saying “seditious words” are words which are “expressive of a seditious intention”, in our Sedition Act, we say they are words with a “seditious tendency”. This is how Section 3(1) of the Sedition Act 1948 of this country states it: 3. (1) A “seditious tendency” is a tendency – (a)  to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government; (b)  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; (c)  to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State; (d)  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; (e)  to promote feelings of ill will and hostility between different races or classes of the population of Malaysia; or (f)  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 Articles 152, 153 or 181 of the Federal Constitution. (This paragraph did not appear in the original form of the sub-section.) As can be seen from the provisions of Section 3(1) of the Sedition Act, above, intention is not an ingredient of the crime of sedition, and all that need be proved by the prosecution is a seditious tendency as defined in Section 3(1). This is established by Section 3(3) which says: 3. (3) For the purpose of proving the commission of any offence against this Act the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing 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. (I have supplied the emphasis which is in bold type.) Then, how are we to decide whether the words have a seditious tendency Although it is unnecessary to prove “intention”: see Section 3(3) of the Act above, it is necessary to prove that the words have a tendency to achieve one or more of the objects specified in Section 3(1) of the Act. In deciding whether the words have this tendency, it is proper, and here I would like to use the words of Coleridge J in R v Aidred (1909) 22 Cox CC 1, p 3,: “... to look at all the circumstances surrounding the publication with the view of seeing whether the language used is calculated to produce the results imputed; that is to say, you are entitled to look at the audience addressed, because language which would be innocuous, practically speaking, if used to an assembly of professors or divines, might produce a different result if used before an excited audience of young and uneducated men.” On the other hand, here I would like to use the language of Cave J in R v Burns (1886) 16 Cox CC 355, page 365: “A man cannot escape from the consequences of uttering words with a [seditious tendency] solely because the persons to whom they are addressed may be too wise or too temperate to be seduced [by those words].” Therefore, the words are seditious (1) if they are likely to incite or influence the audience actually addressed or (2) if they are likely to incite or influence ordinary people even though the audience addressed was unaffected by the words. What is not seditious Stephen in Article 93 of the Digest gave the definition of what is not seditious. Almost identical provisions are to be found in the Criminal Code of the Gold Coast. With regard to the Gold Coast provisions, this is what the Privy Council said in Wallace-Johnson, at page 240: “Question will necessarily arise in every case, as in this case, as to the facts to which it is sought to apply these definitions. Fine distinctions may have to be drawn between facts which justify the conclusion that the intention of the person charged was to ‘bring into hatred or contempt … the Government of the Gold Coast,’ and facts which are consistent only with the view that the intention was no more than, in the words of a later part of subsection 8, ‘to point out errors or defects in the Government ... of the Gold Coast.’“ In the Sedition Act of this country, we have Section 3(2). The subsection specifies the circumstances or situations which are not seditious. Fine distinctions may have to be drawn between facts which justify the conclusion that there was a tendency to achieve one or more of the objects specified in Section 3(1), and facts which are consistent only with the view that the tendency was no more than to do the acts or things mentioned in Section 3(2). Provided that in doing any of the acts or things mentioned in Section 3(2), the words used do not have the effect of achieving any of the objects specified in Section 3(1). There is a similar provision to our Section 3(2) in the Criminal Code of the Gold Coast: see the proviso to subsection 8 of Section 326 of the Gold Coast Code. While in this country it is Section 3(2) of the Sedition Act 1948 which reads: 3. (2) Notwithstanding anything in subsection (1) an act. Speech, words, publication or other thing shall not be deemed to be seditious by reason only that it has a tendency – (a)  to show that any Ruler has been misled or mistaken in any of his measures; (b)  to point out errors or defects in any Government or constitution as by law established (except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in paragraph (1) otherwise than in relation to the implementation of any provision relating thereto) or in legislation or in the administration of justice with a view to the remedying of the errors or defects; (c)  except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in paragraph (1)(f) – (i)  to persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Government as by law established; or (ii)  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, If the act, speech, words, publication or other thing has not otherwise in fact a seditious tendency. [I have put the words in bold type to show that they were not found in the original text of sub-section (2)] Did Lim Kit Siang commit sedition? Now that you know the law of sedition as much as any expert on the subject, we shall examine the law to find out if Lim Kit Siang has, in fact, committed the crime. As I have understood from the Internet, all that he did was to point out that the biggest mistake that Najib made in the so-called Perak debacle was to approach the sultan for the appointment of Zambry as Mentri Besar – that step, as we all know, started the political and constitutional impasse in Perak. Had Najib not seen the Ruler but, instead, had he advised the Barisan Nasional assemblymen to obtain a vote of no confidence against Nizar at the time, he would have succeeded and there would have been no constitutional crisis in Perak. By his rash action to have Zambry appointed Mentri Besar when Nizar is still holding the office of Mentri Besar, he had caused the impasse in Perak. Najib had actually committed a serious political misjudgment. Since then he had been unable to extricate himself out of the political quagmire which he had orchestrated. Since Lim Kit Siang’s criticism was only directed at Najib for his personal misjudgment in the whole episode, it would not be possible for any prosecutor to establish a “seditious tendency” under Section 3(1) of the Sedition Act. This is because paragraphs (a) and (b) of the subsection concern a seditious tendency against a Ruler or Government – so these provisions do not apply to a personal criticism of Najib in his handling of the affair. Paragraph (c ) concerns a seditious tendency against the administration of justice – definitely this does not apply to a criticism of Najib’s handling of the matter. In paragraph (d) the seditious tendency is to raise discontent and disaffection among the people – so it does not apply. Paragraph (e) deals with race and class, and paragraph (1) deals with privileges, sovereignty etc – so they too do not apply to a personal criticism of Najib’ s miscalculation of the situation in Perak. Therefore, since it is impossible, based on the above circumstances, to establish a “seditious tendency” against Lim Kit Siang for his criticism of Najib’s conduct in the Perak debacle, Lim Kit Siang has not committed any offence under the Sedition Act. As such, what the police did to him was unwarranted and an inexcusable harassment of a respected politician. Such bullying methods by the police should be frowned upon by all right thinking people. By their bad behaviour in the matter, the police have done a great disservice to the Government of the day which eventually may reflect adversely against them in the next election. As a consequence of such outrageous act of harassment which the police have perpetrated against the people, the police were, in fact, promoting feelings of ill will against the Barisan Nasional government which is the government of the day. I wonder if they could have brought themselves within the meaning of “seditious tendency” under Section 3(l)(e) which says “(1) A ‘seditious tendency’ is a tendency (e) to promote feelings of ill will ... between different ... classes of the population of Malaysia” – i.e. between the people and the Barisan Nasional government? Perish the thought. But then, why were they doing this to the government? Were they trying to ensure a change of government at the next general election? Your guess is as good as mine. I remember when I was a serving judge, we would never dream of doing anything that would jeopardise the standing of our employer, the Government of Malaysia. Sometimes we would take a member of the executive government, like a minister or a public official, to task if they have done wrong but it must be done in a judgment. As a serving judge, it is taboo to criticise the government of the day out of court. But nowadays we find the police jeopardising the position of their employer, the government of the day, by their overt action of harassing some members of the general public. Don’t these people realize that such actions would have an adverse effect on the government come next election? I suppose there are some people who think that it is all right for such an undesirable trend to continue like a cancer among the law enforcement agencies. And what about Karpal Singh? All that Karpal Singh said was that the sultan can be sued. And the next thing we hear is that he has been charged for the crime of sedition. We all know that Karpal Singh was speaking as a lawyer. And why is it wrong for a lawyer to say someone can be sued? All of us know that a ruler can be sued in the Special Court, albeit with leave of the court, for certain things, such as in an action in contract or tort, and also he could be prosecuted for certain crimes. There is no provision in Section 3(1) of the Sedition Act which says that saying that a sultan can be sued is a seditious tendency. Moreover, Section 3(2)(a) totally absolves Karpal Singh of any wrongdoing under the Sedition Act for his remark. Section 3 (2)(a) says: 3. (2) Notwithstanding anything in subsection (1) an act, speech, words, publication or other thing shall not be deemed to be seditious by reason only that it has a tendency – (a)  to show that any Ruler has been misled or mistaken in any of his measures; Rightly or wrongly Karpal Singh thought that the ruler could be sued by way of a judicial review for what was perceived by him as the unconstitutional appointment of Zambry as Mentri Besar. Judicial review was thought by many lawyers at the time to be the proper course to take to correct the mistaken step taken by the ruler in the appointment of a new Mentri Besar when the incumbent Mentri Besar is still in office. So that by virtue of paragraph (a) of subsection (2) of Section 3 of the Sedition Act 1948, what Karpal Singh had said about suing the sultan would not be treated as seditious even though the words spoken by him would show that the ruler was mistaken in his measure to appoint another Mentri Besar when the incumbent is still in office. PP v Param Cumaraswamy is still the law on the Sedition Act 1948 The law of sedition which I have referred to in this article is taken from my judgment in PP v Param Cumaraswamy [1986] CU (Rep) 606 which was decided almost 23 years ago. Cumaraswamy is authority for the statement of the statute law of sedition as it stands. It is also useful for its concise treatment of the Sedition Act 1948. To this day, it is still the law of the land as it has not been overruled by any higher court.