MEDIA LAW ESSAY

Sedition, hate speech peculiarity of Malaysian law

Group Members:
Ananthan Moorthi LEB150009
Hanan Khaleeda Binti Fadzil LEB150037
Isaiah Majahim Majinbon LEB150041
Lecturer:
Dr. Zalina Binti Abdul Halim

Date:
10.11.2016

Legal Definition of Sedition

According to Merriam Webster the crime of creating a revolt, disturbance, or violence against
lawful civil authority with the intent to cause its overthrow or destruction 1. The Sedition Act
1948 is an act that criminalizes seditious tendency. The legal sanction of this Act would be
three years of imprisonment, a RM5,000 fine, or both.
Development of the Sedition Act
i- Pre-independence
The Sedition Act started life as the 1351 English Statute of Treasons. Hence sedition is
closely associated with treason. In the 1500s, King Henry VIII broke away from Rome and
established the Church of England with him and not the Pope in Rome as the head of the
church. This was heavily opposed and criticized by the Catholics and this was when the
sedition law was heavily used. Then the British came to the Malay states.
However in 1945, the British lost Malaya to the Japanese, and when the Japanese surrendered
at the end of World War II, the British returned to Malaya and created the Malayan Union,
which was opposed by the Malays and triggered the formation of UMNO. Due to this strong
opposition, in 1948, the British abandoned the Malayan Union and created the Federation of
Malaya or Persekutuan Tanah Melayu. Nevertheless, while the nationalist Malays (in
particular those in UMNO) accepted this, the more radical Malays plus the Socialists and
Communists opposed it. To stifle this dissent, the British introduced the Sedition Act (1948)
and those opposed to the British and to the formation of the Federation of Malaya ran into the
jungles to continue their opposition as an armed struggle.2
History showed that Sedition Act started life as a weapon to clamp down on and punish those
aligned to Rome and those who criticized the English Monarch. It was then exported to
Malaya as a weapon to clamp down on and punish those who opposed the British and the
Federation of Malaya.

1 (n.d.). Retrieved November 17, 2016, from http://www.merriamwebster.com/dictionary/sedition

2 Davidson, G., Friesen, T., & Jackson, M. (2000). Lawyers and the Rule of Law on Trial: Sedition in
Malaysia. Vancouver, Canada: Lawyers Rights Watch Canada. Retrieved from
http://www.lrwc.org/ws/wp-content/uploads/2013/02/Lawyers-and-the-Rule-of-Law-on-TrialSedition-in-Malaysia.pdf

ii- Post-independence
2015 Amendment
Despite Datuk Seri Najibs promise to repeal the Sedition Act back in 2012, a bill of
amendment was passed in April 2015 which further empowers the usage and scope of
Sedition Act 194.3 There a few key effects of the amendments mainly the extension of the
scope of the Act, the introduction of aggravated sedition, and the strictness in enforcement.
The scope of the Act previously includes offline platform like press and media publication,
but upon amendment it is now inclusive to network services and electronic means.
Section 2; inserting before the definition of Government the following
definition-by electronic means, in relation to a publicationcommunicated
through network services to members of the public or of a section of the public;
This means that a prohibition order shall be released requiring the person making or
circulating the seditious publication to remove the said publication. 4 This is unfair because
ones social media should be his or her own personal space since the purpose of social media
itself is to create a free marketplace of idea. But what is more problematic is that the person
making or circulating the seditious publication will also be prohibited from accessing any
electronic devices like smartphone, tablet, or desktop.
Another aspect of expansion of scope is in terms of public protection through the
criminalisation of seditious tendencies on racial and religious ground.
Section 3; by deleting the words or in the administration of justice; by
substituting for subparagraph (c) the following subparagraphmatters producing or
having a tendency to produce feelings of ill will, hostility or hatred-between different

3 (2016). Retrieved from http://www.abc.net.au/news/2015-04-10/malaysian-parliament-passestough-sedition-act-amendments/6384164

4 Johan, S. (2015). Sedition Act amendments and impact. The STAR. Retrieved from
http://www.thestar.com.my/opinion/online-exclusive/a-humble-submission/2015/04/20/sedition-actamendments/

races or classes of the population of Malaysia; or between persons or groups of

persons on the ground of religion,
Prior this amendment, seditious topics covered government, judiciary, race, rulers, secession,
and special rights. Now, the list includes religion as one of the sensitive matter.5 Therefore,
the scope is not getting any smaller and there are more taboo issues within discussion which
effectively restricts the freedom of speech.
Next, the amendment also introduced a new offence which is commonly referred to as
aggravated sedition. Aggravated sedition is an extension to the existing criminal liability on
seditious tendencies. The element of intention (mens rea) remains unnecessary. The
punishment provided imprisonment not less than 5 years but not exceeding 20 years.
Any person who (a) does or attempts to do, or makes any preparation to do, or
conspires with any person to do, any act which has or which would, if done, have a
seditious tendency; (b) utters any seditious words; (c) prints, publishes or causes to
be published, sells, offers for sale, distributes or reproduces any seditious
publication; or (d) imports any seditious publication, and by such act causes bodily
injury or damage to property shall be guilty of an offence and shall, on conviction, be
liable to imprisonment for a term of not less than five years but not exceeding twenty
years.
This amendment is likely made in light of recent uses of the Sedition Act by the authorities
against dissidents since 2013. A repeat of the University of Malaya incident (27 October,
2014), where a gate was forcibly opened after campus authorities refused to allow Anwar
Ibrahim permission to speak on campus, could lead to speakers serving mandatory
imprisonment of 3-20 years if convicted of aggravated sedition under 4(1A). Youth
speakers would have more to fear as the option for lenient alternatives to imprisonment
provided for under section 293 from CPC is struck out.6
Given that demonstrations usually involve some publication or speech before, during or after,
it appears that both 4(1) and 4(1A) could easily be used to impose mandatory imprisonment
5 Institut Rakyat,. (2015). The Sedition (Amendment) Bill 2015; Context & implications. Retrieved
from http://www.institutrakyat.org/wp-content/uploads/2015/04/IR-Sedition-Amendment-Report2015.pdf
6 Supra note. 5

on those convicted in relation to a demonstration. Effectively, any charge of sedition can be

escalated if some bodily injury or property damage is linked to it.
Finally, the amendment makes the enforcement of the Sedition Act 1948 substantially stricter
than ever through Section 5A and 5B.
Section 5A- When a person is charged with an offence under subsection 4(1a) and
there is a certificate in writing by the Public Prosecutor stating that it is not in the
public interest to grant bail to the person charged, the person shall not be released on
bail.
This is especially dangerous as there are many instances of abuse happening in detention that
result to forced confession and admittance, and excessive intimidation. This also disrespects
procedural fairness as one should be given freedom of movement while waiting for ones
trial. Sedition offence is non-violent, and does not have imminent threat to the society that it
warrants an immediate incapacitation therefore it should be a baillable offence.
Section 5B- When a person is charged with an offence under section 4 and released
on bail, the court shall, on the application of the Public Prosecutor (a) order the
person to surrender his travel documents within such period specified in the order
until all proceedings in relation to the charge against the person have been
concluded; or (b) in cases where the person has no travel documents and he is a
citizen or permanent resident, order the Director General of Immigration not to issue
any travel document to the person until all proceedings in relation to the charge
against the person have been concluded.
It is clear that this clause is to prevent some individuals charged with sedition from escaping
the dragnet by going overseas. Therefore it is important to empower the Immigration
Department to revoke the passports of those charged under the Act. Thus, the travel
restriction provisions under 5B would prevent, or at least hinder, another Alvin Tan or Ali
Abdul Jalil from fleeing overseas.7
Comparison with the UK and other commonwealth countries

7 Ghazali, R. (2014). Immigration Dept revokes Alvin Tan, Ali Abd Jalils passports. The STAR.
Retrieved from http://www.thestar.com.my/news/nation/2014/12/08/immigration-dept-revokespassports-ali-alvin/

In the United Kingdom, the sedition laws have been abolished in 2010 after years-long of
fierce opposition and criticism coming from the human rights champions and advocates in the
system itself and also amongst the people on the ground and the international community.
There are a few reasons so as to why these laws were abolished but the main ones that are
often cited in arguments are firstly, to stop providing a convenient excuse for regimes around
the world to retain their own oppressive laws and secondly, to resonate with the principle of
freedom of speech and democracy.
The first ground has been justified by Lord Lester of Herne Hill and Lord Thomas of
Gresford during the House of Lord parliamentary debate. Amongst the arguments put forward
was the idea that UKs sedition laws would be a benefit in setting an example to oppressive
regimes which use similar offences to silence dissent by repealing them. 8 This makes the UK
as guilty since the UK was the one introducing these laws during the colonial era. Another
argument was that the UK would be hypocritical in championing human rights while the
government itself is still practising such a repressive draconian law. This makes the UK a
powerless voice against the violations of human rights around the world- unless the UK
herself provides an example to be followed by others.9
The second ground was substantiated by Baroness DSouza and Lord Thomas of Gresford is
the same debate. The former argued that the power to express forcefully political discontent is
the cornerstone of democracy and lies with the people. Conversely, it is not therefore in the
power of government to criminalise this expression.10 Hence the fundamental rights of UK
individuals would be better protected by removing the offence of seditious libel from the
statute book. Lord Thomas supported the idea by adding that the abolition is essential to the
current age whereby there are so many journalists, bloggers and so forth who give
government their views all the time and these people should not be inhibited from doing so in
order to create a vigorous culture of free speech.11

8 HL Deb, 9 July 2009, cols 843

9 HL Deb, 9 July 2009, cols 849-850
10 HL Deb, 9 July 2009, cols 848
11 HL Deb, 9 July 2009, cols 849-850

From here, it is clear that the UK has taken a progressive leap in promoting the freedom of
speech not only within their country but also in other countries who may view them as an
example.
In Australia, sedition law codified in 1920 as section 24C &D of the Crimes Act has long
fallen into disuse. In 1986, there was an amendment to these sections making intention a
necessary element and require proof that the seditious act was carried out with the intention
of causing violence or creating public disorder or a public disturbance.
Notwithstanding these amendments, author L. W. Maher concluded:
the law of sedition is anachronistic and an unjustified interference with freedom of
expression and that abolition of sedition offences at both Commonwealth and State level is
therefore to be preferred to any attempt to modernise the crime of sedition.
The last commonwealth prosecution in Australia occurred in l953 during what Laurence W.
Maher described as the anti-communist crusades.12
In India, sedition laws are found in the following laws in India: Section 124-A2 of the Indian
Penal Code, 1860; Section 953 of the Code of Criminal Procedure, 1973; Section 54, The
Seditious Meetings Act, 1911; and Section 25 & Section 136 the Unlawful Activities
(Prevention) Act, 1967.
Kedar Nath Singh v. State of Bihar held that the sedition law was constitutional but at the
same time curtailed its meaning and limited its application to acts involving intention or
tendency to create disorder, or disturbance of law and order, or incitement to violence. The
judges observed that if the sedition law were to be given a wider interpretation, it would not
survive the test of constitutionality.13 The judgement has been upheld in several cases.
In Indra Das v. State of Assam and Arup Bhuyan v. State of Assam, the Supreme Court
unambiguously stated that only speech that amounts to incitement to imminent lawless
action can be criminalised.14 In Shreya Singhal v. Union of India, the famous 66A judgment,
the Supreme Court drew a clear distinction between advocacy and incitement, stating
that only the latter could be punished. Also, advocating revolution or advocating even violent
12 Supra note .2
13 [1962] 2 AIR 955
14 [2011] 4 SCR 380

overthrow of the State, does not amount to sedition, unless there is incitement to violence,
and more importantly, the incitement is to imminent violence.15
Even after the above decisions by the Supreme Court, Section 124-A continues to be used
against artists, social activists, intellectuals, cartoonists, media persons and so forth for
criticising the governments, irrespective of whether the alleged seditious act or words
constitute a tendency to cause public disorder or incitement to violence.16

Seditious Tendency
The Sedition Act17 is currently the governments primary weapon against dissent. Originally
enacted by British colonial authorities to contain a communist insurrection, it was only
infrequently used between 2009, when Najib first became prime minister. After the 2013
elections, however, the government began to use the law aggressively to harass, arrest and
prosecute opposition politicians, civil society activists, and anyone else who has spoken
critically about the government, the judiciary, religion, or a number of other sensitive
issues.
The current version of the Sedition Act imposes criminal penalties on any person who:

(a)does or attempts to do, or makes any preparation to do, or conspires with any
person to do, any act which would, if done, have a seditious tendency;

(b)utters any seditious words;

(c)prints, publishes, sells, offers for sale, distributes or reproduces any seditious
publication; or

(d) imports any seditious publication.

15 [2015] AIR 1523

16 Supra note .2
17 Sedition Act 1948, Act 15 (2006) (Malaysia), available at
http://www.agc.gov.my/Akta/Vol.%201/Act%2015.pdf

The law never actually defines sedition. Instead, seditious as used in the law, it is said to
qualify the act, speech, words, publication or other things as one having seditious tendency.
Initially seditious tendency was broadly defined in section 3(1) of the Sedition Act to
include speech having a tendency to "bring into hatred or contempt or to excite disaffection
against" the government, the king or the ruler of any state, or the administration of justice in
Malaysia, or to raise discontent or disaffection amongst the inhabitants of Malaysia. At the
time the original Sedition Act was promulgated, British colonial authorities were attempting
to suppress an armed insurrection by the Communist Party of Malaya and the law played a
central role in those efforts.18
The definition of seditious tendency was expanded during the State of Emergency that the
government declared on May 15, 1969 and that continued until February 1971. 19 The
expanded definition in Section 3(1)(e) included speech with a tendency to promote feelings
of ill-will and hostility between different races or classes of the population of
Malaysia. Speech that questions certain portions of the constitution, including article 152
(making Malay the official language), article 153 (providing special rights for Malays and
natives of Sarawak and Sabah), and article 181 (preserving certain rights for ruling chiefs in
the states), was also made seditious.
In 2015, the definition of seditious tendency was further amended to delete the reference to
the government from section 3(1)(a) and to delete the provision dealing with the
administration of justice. While the government presented these changes as a liberalization of
the law, nothing in the amended act prevents the authorities from treating criticisms of the
government as seditious on the grounds that they have a tendency to cause discontent among
the inhabitants of Malaysia in violation of section 3(1)(d).
Moreover, the 2015 amendments added a new section 3(1)(ea), making expression with a
tendency to promote feelings of ill will, hostility or hatred between persons or groups of
persons on the ground of religion part of the definition of seditious tendency. As Yin Shao
Loong, executive director of the Institut Rakyat, a think tank set up by the PKR, explains:
18 A concise history of the Sedition Act, and its amendments prior to 2015, can
be found here: http://www.themalaysianinsider.com/sideviews/article/the-storybehind-the-sedition-act-surendraananth. On its constitutionality:
http://www.themalaysianinsider.com/sideviews/article/demise-of-thesedition-actsurendra-ananth.
19 Parliament was suspended from May 1969 to February 1971.

-Many critiques of the government fall in the areas of race or religion. Even economics is
tied up with race, religion and the rulers. So most criticism of the government can probably
still be charged as sedition even under the amended law.20
Those charged prior to the effective date of the 2015 amendments face the possibility of up to
three years in prison and a fine of RM 5,000 (US$1,210) for a first offense, and up to five
years in prison for any subsequent offense. Those charged with sedition once the 2015
amendments enter into force will face significantly higher penalties. As amended, the court
will no longer have the option to impose a fine. Instead, those convicted of sedition will face
a minimum sentence of three years in jail and a maximum of seven years.
In addition, the 2015 amendments created a new offense of aggravated sedition. Under the
new section 4(1A), any person who commits sedition (as broadly defined in the statute) and
by such act causes bodily injury or damage to property faces the possibility of up to 20
years in prison, and must be sentenced to a minimum term of three years. The law does not
require that the property damage be substantial or that the speaker or his or her intended
audience commit the injury or damage. As Eric Paulsen, executive director of Lawyers for
Liberty, points out, If I make a seditious statement and someone gets mad and hits
someone, I am responsible and face up to 20 years in jail.
Long-time activist Maria Chin Abdullah, the current chair of the Coalition for Clean and Fair
Elections (Bersih) and head of the womens rights NGO EMPOWER, is very troubled by this
provision:
-It is crucial to look at the fact that violence is being justified. If I make a statement about the
use of Allah and the Bible and it results in the burning of churches, the ones who burned the
churches wont get penalized, but the one who used the word Allah gets arrested. This
justifies the violence and leads to impunity.21
Yap Swee Seng, former executive director of Suaram, the Malaysian human rights NGO,
commented on the chilling effect of the Sedition Act:

20 http://www.institutrakyat.org/wp-content/uploads/2015/04/IR-SeditionAmendment-Report-2015.pdf
21 https://www.hrw.org/report/2015/10/26/creating-culture-fear/criminalizationpeaceful-expression-malaysia

-People are definitely more careful now in terms of what they say, tweet, and post. That will
be even truer after the amendments to the Sedition Act. It is a much more serious risk now.22
Constitutionality of the Sedition Act
In discussing the constitutionality aspect of the Sedition Act, this aspect will be gauged upon
the very recent case of Azmi Sharom, a law professor from the University of Malaya, was
charged with sedition after comments he made regarding a political crisis in Malaysias
Selangor state in August 2014, citing the 2009 constitutional crisis in Perak State. Asked by
an online news portal in August 2014 whether the political crisis in Selangor state could be
solved in a similar manner, Azmi Sharom was of the opinion that the method chosen to
resolve the Perak crisis was legally wrong and should not be repeated. On 2 September
2014, Azmi was charged under Section 4(1)(b) and Section 4(1)(c) of the Sedition Act 1948.
He pleaded not guilty and posted bail of RM5,000 (USD1,130). As quoted by him - I was
shocked to learn that I am being charged under the Sedition Act because of comments I made
on the Perak crisis of 2009. My statements were based on established case law and
democratic principles. They were given in my capacity as a law lecturer of 24 years
standing,"
Azmi is the first academic to be charged with sedition in Malaysia. Given the broad scope of
the Sedition Act, in particular its coverage of judicial, political and social matters, its use by
the authorities could have a chilling effect on academic freedom of expression and the ability
of scholars to contribute to public debate in Malaysia. His counsel at that time, Gobind Singh
Deo argued that the provisions enacted before Independence could not restrict freedom of
speech as the Sedition Act contradicted Article 10(2) of the Federal Constitution. Following
that, the constitutional challenge on the Sedition Act began.
It was firstly argued that the Sedition Act 1948 is not a valid law as it was not enacted by the
Parliament. Previously, the law was known as Sedition Ordinance 1948 enacted by the
Legislative Council. Sedition Act 1948 was incapable of being modified and had become
void upon the establishment of the Federal Constitution in 1957. The Yang di-Pertuan Agong
did not have the authority in law to modify the Sedition Ordinance. Secondly, the Act restricts
the freedom of speech provided under Article 10 of the Federal Constitution.

22 http://www.suaram.net/

On the other side, Federal counsel Tun Abdul Majid Tun Hamzah told the court during
submission that although the Act was not made by the Parliament, it must be construed to
have been made by the Federal legislature- the law received a stamp of constitutional
approval by the legislature. Hence, it is a valid law. On the issue of modification of the law,
Sedition Act 1948 has been extensively amended after the racial riot in 1963- hence the law is
malleable.
In his majority judgment of the case, Tun Ariffin Zakaria CJ held that Section 4(1) of the
Sedition Act did not run counter to Article 10(2)(a) of the Federal Constitution as Parliament
has the right to restrict the freedom speech as it deems necessary or expedient to national
security.
The Federal Court had also departed from a 2010 Judgment which sets a requirement for
restrictions to freedom of speech to be reasonable as that would amount to a rewriting of
Article 10(2) - a huge blow to human rights and the concept of judicial review in Malaysia.
Furthermore, the court held that Section 4(1) of the Sedition Act does not amount to a total
prohibition of the exercise of the freedom of speech as there are several exceptions under
Section 3(2). It was also established that Sedition Act 1948 was saved by Article 162 of the
Federal Constitution despite it being a law that was enacted before the Parliament came into
existence after Independence.
Selective Prosecution
In our next issue here we look at an integral part of why the Sedition Act has many a times
been chided as archaic and draconian in nature Selective prosecution. It has been
blatantly apparent with the Umno-dominated government has used both the ISA and the
Sedition Act ruthlessly and mercilessly against political opponents, critics and civil rights
activists.23 The most patriotic among the Opposition and critics have been incarcerated. A few
examples will suffice to convince anyone: Kit Siang, Karpal Singh, Dr Syed Husin Ali,
Kassim Ahmad, Mat Sabu, Lim Guan Eng, V David, Kua Kia Soong, Anwar Ibrahim, Teresa
Kok, Tan Seng Giaw, Irene Fernandez, Dr Burhanuddin al-Helmy, Ahmad Boestamam, P
Patto, Dr M K Rajakumar, Chow Chee Keong, and Bro. Anthony Rogers

23 Amnesty International Press Statement (28 January 2000) AI Index: ASA

28/01/00

Here we will take a look back in time and history to actually view two sides of the coin. In
1983 the Constitution Amendment Bill, curbing the powers of the rulers was passed by
Parliament. This precipitated a constitutional crisis when the rulers rejected the amendments.
As expected Umno orchestrated, through the government-controlled print and electronic
media, a vicious and ruthless campaign to discredit the rulers. Then Umno organised a series
of illegal rallies minus, of course, the tear gas and water cannon in Alor Setar, Bagan
Datoh, Seremban, Malacca and Batu Pahat at which Umno leaders led by Mahathir
mercilessly castigated the rulers.24
At these rallies Umno Youth were seen wearing T-shirts bearing Mahathirs picture and the
words Daulat Rakyat. There was a relentless campaign against the Malay rulers and the
Malay print and the electronic media were fully marshalled to spew out mercilessly Umno
propaganda against the rulers.
The government was said to be compiling dossiers on the rulers with tales of their
extravagant lifestyles.
Dr Ms very words then,
It was the rakyat who had protested against the Malayan Union It was always the people
who had fought for their destiny We werent born ministers Were up here because we
were chosen by all of you. 25
Dr M had drawn the battle lines clearly Malay sovereignty versus royal hegemony. At a socalled victory rally in Malacca, Mahathir probably declared that the feudal system had ended!
In contrast to this, the late Karpal Singh26 was initially charged in March 2009 with uttering
seditious words at a press conference at his office here, where he said the removal of then
Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin by the Sultan was open to legal
challenge. Karpal, a very much respected veteran lawyer and statesman, was only exercising
his right to free speech when giving his opinion during the Perak constitutional crisis. The
24 As reported on the website http://www.malaysiakini.com
25 http://aliran.com/thinking-allowed-online/2014-ta-online/sedition-selectiveprosecution-persecution/
26 Karpal Singh was a DAP Member of Parliament from the State of Penang from
l978 to November l999, and was a State Assemblyman for the State of Kedah
from l974 to 1978

right of a citizen (in this case a senior and experienced lawyer) to voice an opinion on a
constitutional law point, that is, whether the decision of a Ruler of a State is justiciable in the
courts, is clearly within the scope of freedom of speech and expression guaranteed under
Article 10 (1)(a) the Constitution.27
The late Karpal Singh had been charged with sedition. What Karpal had said was mild
compared to Mahathirs utterances against the rulers. Yet Karpal was kurang ajar; Mahathir
was not. Karpal was hauled up; Mahathir was not. Karpal was seditious; Mahathir was not.
Criticism on the Sedition Act
The Sedition Act was introduced by the British colonial government in 1948 to use against
local communist insurgents. Despite its original intent, to secure a more united federation in
steps of independent, Human rights groups accused the governing Barisan Nasional coalition
of expanding the scope of the law since it gained independence from the British five decades
ago.
The archaic law has been bombarded with relentless criticism from local and international
bodies. Amnesty International is of the view that The Sedition Act has no place in a modern,
rights-respecting society it is a severely repressive law that has become the authorities
weapon of choice when lashing out at any opposition. 28 As of April 2015, at least 78 people
had been investigated or charged under the Sedition Act since the beginning of 2014, a rising
proof in the governments attempt to silent critical dissent. 29 This alarming number speaks
for itself on the restrictions on the freedom of expression. This is the evidence of malice
deception even after the Prime Minister promised to repeal the draconian law in July 2012
because it "represents a bygone era" and was part of his reforms to develop Malaysia into a

27 Muzzled in Malaysia, The Economist (29.08.98 - 04.09.98).

28 Malaysia must end unprecedented crackdown on hundreds of critics through
Sedition Act. (n.d.). Retrieved November 07, 2016, from
http://www.amnestyusa.org/news/press-releases/malaysia-must-endunprecedented-crackdown-on-hundreds-of-critics-through-sedition-act
29 Malaysia: Sedition Act upheld in further blow to free expression. (2015,
October 6). Retrieved November 07, 2016, from
https://www.article19.org/resources.php/resource/38131/en/malaysia:-seditionact-upheld-in-further-blow-to-free-expression

progressive democracy. However he has since announce that the law will retain and reserved
his reasons for it.30
Article 19, an International Watchdog on Freedom of Expression has severely criticised the
sedition act in a memorandum. The organization asserts that the test for restrictions on
freedom of expression under international law requires all such restrictions to be provided by
law. This means that the law should be attainable and not excessively vague. The crime of
sedition, as set out in the Sedition Act, is far too vague to meet this standard. This is of
particular importance given the criminal nature of these offences and the potential penalty of
imprisonment. Both sedition and seditious tendency are vaguely defined and words such
as hatred, contempt, discontent, feelings of ill-will and disaffection are used without
any definition and too subjective.
However, even on 6th October 2015, The Federal Court ruled that the 1948 Sedition Act was
inlign with Article 10 of Malaysias Federal Constitution, which guarantees the right to
freedom of speech and expression. The judgments asserts the part on Article 10(2)(a) of the
Federal Constitution, which permits Parliament by law to impose restrictions on the right to
freedom of expression as it deems necessary or expedient in the interest of the security of
the Federation.31
ARTICLE 19 later finds that the Federal Courts ruling on the concurrency of the 1948
Sedition Act with Malaysias constitution contradicts international standards on the right to
freedom of expression. This is because, it is ambiguous and unclear, and therefore not
prescribed by law; it grants the executive too much discretion for arbitrary enforcement and
therefore its scope is unforeseeable. Secondly, it does not have a legitimate aim, abusing the
framework of national security to silent dissent which represents no legitimate threat to a
legitimate national security interest and lastly, it is not necessary in a democratic society, as
States must protect and promote robust debate on matters in the public interest. Malaysias
constitutional safeguards fall flat on international standards by permitting restrictions on
expression where they are merely expedient to the government, rather than necessary in a
democratic society.32
30 Pak, J. (2014, November 27). What is Malaysia's sedition law? Retrieved
November 07, 2016, from http://www.bbc.com/news/world-asia-29373164
31 Supra note. 29
32 Supra note. 29

The flame of injustice and anger burnt even more profusely in 2015 when an amendment to
the act rushed through parliament in April 2015 after less than a days debate. Of matters
added to list of sedition offences, one was criticism of religion. Next it reduced the discretion
of judges in sentencing, requiring them to impose prison sentences of between three and
seven years and also brought electronic media and sharing on social media under the act.33
The focus of critics in the new amendments is on the new offense of aggravated sedition.
Under the new section 4(1A), any person who commits sedition (as broadly defined in the
statute) and by such act causes bodily injury or damage to property faces the possibility of
up to 20 years in prison, and must be sentenced to a minimum term of three years. 34 The law
does not require that the property damage be severe or that the speaker or his or her has the
intention to entice the audience to commit the injury or damage.
Eric Paulsen, executive director of Lawyers for Liberty, quotes If I make a seditious
statement and someone gets mad and hits someone, I am responsible and face up to 20 years
in jail.35
Troubled by this provision, Maria Chin Abdullah, the current chair of the Coalition for Clean
and Fair Elections (Bersih) and head of the womens rights NGO EMPOWER, asserts that it
is crucial to look at the fact that violence is being justified. If I make a statement about the
use of Allah and the Bible and it results in the burning of churches, the ones who burned the
churches wont get penalized, but the one who used the word Allah gets arrested. This
justifies the violence and leads to impunity.36
In its report, the Human Rights Watch International goes on to assert that while the
government claims that the restrictions on speech in the Sedition Act are intended to deal
with threats against peace, public order and the security of Malaysia, in both word and
deed, their actions negate that claim.37 With the possible exception of subsection 3(1)(b), the
33 Supra note. 28
34 Sedition (Amendment) Act 2015, sec. 4(b) (inserting new section 4(1A) into
the act).
35 Human Rights Watch interview with Eric Paulsen, Kuala Lumpur, April 9, 2015.
36 Human Rights Watch interview with Maria Chin Abudullah, Kuala Lumpur, April
16, 2015.
37 Supra note .28

law does not even requires the expression at issue encourage unlawful activity or public
disorder, much less that it pose a real risk of causing such impact. Instead, it penalizes
expression that simply has a tendency to cause ill-will, hatred, disaffection or discontent,
regardless of whether it actually has such a consequences, and regardless of whether or not
any of those who feel disaffection or discontent as a result are inspired to do anything
other than to remain at peace.38
In addition to that, under the Malaysian Sedition Act, the intention of the speaker is irrelevant
if the speech, publication or act has a seditious tendency. 39 This effectively allows the
imprisonment of citizens who had no intention of exciting disaffection, much less of
undermining national security or public order, simply because someone else views their
statement as having the tendency to do so. The fact that a statement is truthful is also not a
defense to a charge of sedition if the court finds that the statement had a seditious
tendency.40 Thus, a statement alleging corruption in a government contract could result in a
conviction for sedition, even if the statement is true, if the court finds that the statement had a
tendency, for example, to cause discontent among the citizens of Malaysia. As a result, it is
almost impossible to defend against a charge of sedition.

Proposition of Repeal
Calls for abolishment have perversely resounded round the nation and the globe. This
includes Amnesty International who called on the Malaysian authorities to urgently repeal the
Sedition Act, and to quash the convictions against any individuals sentenced under the act
simply for peacefully exercising their rights to freedom of expression and ensure that they are
immediately and unconditionally released.41
ARTICLE 19 is likewise of the view that immediate steps should be taken to repeal the
Malaysian Sedition Act 1948. The law simply cannot be justified as a restriction on freedom
38 Subsection 3(1)(b)
39 Supra note .28
40 Public Prosecutor v. Ooi Kee Saik & Ors, [1971] 2 M.L.J. 108 (It is immaterial
[in a prosecution under the Sedition Act] whether the impugned words were true
or false.).
41 Supra note.28

of expression. It is excessively vague, serves no legitimate aim sanctioned by international

law and it cannot be justified as necessary in a democratic society, in particular because of its
overbreadth and the serious chilling effect it has on open, democratic debate.42
Definition of Hate Speech
According to Merriam Webster Dictionary, hat speech is speech that is intended to insult,
offend, or intimidate a person because of some trait (as race, religion, sexual orientation,
national origin, or disability), it is also the expressions of racial hatred, which is defined as
hatred against a group of persons by reason of the group's colour, race, nationality (including
citizenship) or ethnic or national origins according to Section 3, Public Order Act 1986 and
threatening words or behaviour, or display of any written material which is threatening, with
the intention to stir up religious hatred according to Section 3A, Racial and Religious Hatred
Act 2006.

Status Quo in Malaysia

Currently, there is no specific legislation to regulate hate speech and offences in Malaysia.
There are however general provisions that address certain elements of hate speech. For
example the s298A of the Malaysia Penal Code provides that it is a crime to incite
disharmony, disunity and enmity on the grounds of religion. An amendment was made and
expanded it to include racial feelings.
S298 is similar to the Sedition Act in a sense that it criminalises offensive speech against
other religion. The only demarcation being the need to prove the intention under s298, to
which the Sedition Act does not require so.
Malaysians do enjoy the right to freedom of speech but with certain limitation particularly in
curbing the hate speech. Freedom of speech is formally assured by Part II of the Federal
Constitution under Article 10(1) entitled Freedom of Speech, Assembly and Association.
Article 10 and other laws such as the Sedition Act and Penal Code however have provisions
that seek to limit and punish those who are found to be exceeding their right of expression by
expressing controversial views on issues such as the special rights of the Malays and other
indigenous people (Bumiputera), Islam as national religion, the rights of immigrant ethnic
42 Memorandum on the Malaysian Sedition Act 1948. (2003, July).

(especially Chinese and Indians) to citizenship, the position of the King, and the status of the
Malay language as the national language and a host of other issues that could potentially be
sensitive in the context of the fragile ethnic relations in the country.

Comparison with the UK

In the UK, hate speech is curbed through the enforcement of Public Order Act 1986 and
Racial and Religious Hatred Act 2006. These two Acts went through quite a number of
amendments in order to reconcile with the principle of freedom of speech and the western
idea of liberal democracy. There are a few characteristics of these law that Malaysia should
consider adopting.
1. Public Order Act 1986
It is an Act to create new offences relating to public order; to control public processions and
assemblies; to control the stirring up of racial hatred.
The first thing that Malaysia should consider adopting is the way the Act is created that
ensures the law is clear and not arbitrary. This may be analysed from the provisions as
follows;
Section 1 Riot- Where 12 or more persons who are present together use or threaten
unlawful violence for a common purpose and the conduct of them (taken together) is
such as would cause a person of reasonable firmness present at the scene to fear for
his personal safety, each of the persons using unlawful violence for the common
purpose is guilty of riot.
Section 4A Intentional harassment, alarm or distress- A person is guilty of an
offence if, with intent to cause a person harassment, alarm or distress, he uses
threatening, or abusive words or behaviour, or disorderly behaviour, or displays any
writing, sign or other visible representation which is threatening, abusive or insulting,
thereby causing that or another person harassment, alarm or distress.
From these two provisions amongst other provisions, the law put forward the requirement of
intention in order to create liability as opposed to Malaysian law where tendencies are
sufficient causing the law to be unreasonably broad and vague.

At the same time, Section 1 is carefully worded to include actual threats and violent as
prerequisite for action in order to reconcile with the freedom of assembly and freedom of
expression. Malaysia should create non-arbitrary laws that respect the fundamental liberties
of every individual as well.
Another example of reconciliation of hate speech laws and freedom of speech and expression
would be Section 5 of the Act,
Section 5 Harassment, alarm or distress- (1) A person is guilty of an offence if he
uses threatening or abusive words or behaviour, or disorderly behaviour, or displays
any writing, sign or other visible representation which is threatening or abusive,
within the hearing or sight of a person likely to be caused harassment, alarm or
distress thereby.
Note that this clause excludes insult after the decision by the House of Lords to pass an
amendment removing the word in 2013. The problem of the outlawing of insult is that too
many things can be interpreted as such. Criticism, ridicule, sarcasm, merely stating an
alternative point of view to the orthodoxy, can be interpreted as insult. 43 In fact, in the UK
way back in 1995, Section 5 had been used against street preachers insulting homosexuals
and LGBT activists insulting religious groups.44 Now that the law has been amended, these
two groups can self-actualise and express themselves without the fear of being punished
under the law for being antithetical of each other.
2. Racial and Religious Hatred Act 2006
This Act is unique in many ways, for instance, it enhances the penalties for offences
motivated by religious and racial hatred. There are a few offences laid down that may be
religiously or racially aggravated like wounding, assault, actual bodily harms and intentional
harassment, alarm, or distress. Apart from that, it also creates corporate liability for offences
on basis of religion and race.
Section 29M; Offences by corporations- (1) Where a body corporate is guilty of an
offence under this Part and it is shown that the offence was committed with the
43 The Telegraph,. (2012). Rowan Atkinson: we must be allowed to insult each other. Retrieved from
http://www.telegraph.co.uk/news/uknews/law-and-order/9616750/Rowan-Atkinson-we-must-beallowed-to-insult-each-other.html
44 OutRage,. (1995). Gay activists stand trial over Islamic protest. Retrieved from
http://outrage.org.uk/1995/01/gay-activists-stand-trial-over-islamic-protest/

consent or connivance of a director, manager, secretary or other similar officer of the

corporate is guilty of the offence and liable to be proceeded against and punished
accordingly.
This is especially important because hate crimes may be a systemic problem therefore to fix
the problem the establishment and the system itself must be repaired. Through Section 29M,
there is higher likelihood that corporations would monitor the workers irrespective of their
personal views in order to avoid criminal liability. This creates safer place for everyone to
self-actualise without being inhibited by destructive exercise of freedom of speech.
Lastly, it is important to note that the Act also provides indiscriminative and universal
protection. This is evident from the way the meaning of religious hatred is construed.
Section 29A; Meaning of religious hatred- In this Part religious hatred means
hatred against a group of persons defined by reference to religious belief or lack of
religious belief.
From here it means that atheist or non-religious individuals are also protected, not just
religious individuals. This idea of universal protection can further be extended for other
groups like gender minorities (individuals with non-conventional sexual orientation and
preferences like lesbian, gay, bisexuals, transgender, androgyny, and queers). It is also
important to ensure that when it comes to racial protection, minority races, immigrant races
and indigenous people are protected as well, not just the majority race. Hate speech law
cannot be that which intends to protect the sensitivity of the majority for the so-called
preservation of national security like that in Malaysia.
Proposal to Reform Hate Speech Laws
The judiciary and the State government needs to recognize that hate speech plays a
significant role not only in creating racial tension, but may also translate into discrimination
on basis of gender. We must look at the bench mark of The European countries since they
have developed their law in order to accommodate the more current diverse communities and
ideologies. It is also important to have specific legislation to properly and comprehensively
deal with a subject matter as serious and complex as hate speech. That the law must be clear
and unambiguous and the scope of law must be properly spelt out.

It must also be

indiscriminative to ensure that free speech is constructive, not destructive. The law cannot
just protect the dominant race and the dominant religion (as opposed to that in the Federal

Constitution). The law must acknowledge the minorities in terms of race, religion and also
gender.

Conclusion
Malaysia practices pseudo-democracy, our citizen is not ready to embrace absolute freedom
of speech, people value convention and orthodoxy rather than individualistic values such selfactualization. Without Sedition Act, there will be serious racial and religious tension that
might lead to violence. Our national security comes at the expense of integrity in governance.
Three conclusions from three authors have arised from this analysis. Acoording to Mr
Ananthan, in order to move towards liberal democracy, the Sedition Act 1948 needs to
implemented fairly- no more room for abuse of power or selective prosecution. However
according to Miss Hanan the law needs to be abolished as an indicator to the citizen that we
are embracing liberal democracy and this allows for more effort to change the mentality of
the people to be more receptive towards those who are not orthodox- ie liberals.
Furthermore according to Mr Isaiah after abolishing Sedition Act 1948, the Parliament
should enact laws against hate speech imitating the UKs model to safeguard security and
peace. It must be noted the hate speech law does not protect the government from criticism or
insults- it is meant to protect the citizen- it needs to be properly legislated.

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