Con­fu­sion over sedi­tion

Not ev­ery­thing that is re­garded as sen­si­tive is nec­es­sar­ily sedi­tious.

The Star Malaysia - Star2 - - ISSUES - BHAG SINGH

IT is com­mon to read about po­lice re­ports be­ing lodged claim­ing that some­one has ut­tered words or writ­ten or drawn some­thing sedi­tious.

This also hap­pens on oc­ca­sions when some ma­te­rial is writ­ten, dis­cus­sions held or pro­pos­als made which touch on some pro­vi­sions of the Fed­eral Con­sti­tu­tion or some laws of the coun­try.

Just be­cause a per­son says some­thing that is re­lated to race, re­li­gion or lan­guage, there are per­sons or groups that are en­thu­si­as­tic about mak­ing po­lice re­ports. Some­times re­ports are lodged by the dozen, or even more. What use­ful pur­pose this serves is any­one’s guess.

Aris­ing out of such re­ports, the per­son against whom or with ref­er­ence to whom such re­ports are made are called in for ques­tion­ing. There are in­stances when a per­son is de­tained. In other cases, there may just be a de­part­men­tal in­quiry and the per­son is dealt with through in­ter­nal pro­ce­dures.

A reader who has been ob­serv­ing these de­vel­op­ments, asks when does what is said be­come sedi­tious? And if so, is it nec­es­sary to call the per­son against whom the re­port is made, for ques­tion­ing for hours or even de­tained, al­beit tem­po­rar­ily?

The way in which such re­ports are made and dealt with is cer­tainly wor­thy of at­ten­tion. In our in­creas­ingly po­lar­is­ing so­ci­ety, al­most ev­ery­thing that is said can be con­nected to race, re­li­gion or lan­guage. How­ever, not ev­ery state­ment which of­fends oth­ers or is not to their lik­ing, is nec­es­sar­ily sedi­tious.

The of­fence?

Sedi­tion is a very se­ri­ous mat­ter. Our Sedi­tion Act 1948 has its ori­gins in English Law though the need to pro­vide for lo­cal cir­cum­stances has re­sulted in ad­di­tions be­ing made. As said by Fitzger­ald J. in R.V. Sul­li­van: “The very ten­dency of sedi­tion is to in­cite the peo­ple to in­sur­rec­tion and re­bel­lion. Sedi­tion has been de­scribed as dis­loy­alty in ac­tion ...”

Sedi­tious words are also said to be “words or writ­ing used or writ­ten for the pur­pose of bring­ing into con­tempt the Ruler or the Con­sti­tu­tion of the coun­try, or ad­min­is­tra­tion of jus­tice, or to ex­cite the Ruler’s sub­jects to al­ter ex­ist­ing laws oth­er­wise then by law­ful and con­sti­tu­tional means as well as to in­cite feel­ings of ill will and hos­til­ity be­tween dif­fer­ent classes of sub­jects.”

Our Act has sup­ple­mented this by amend­ing the statute to make it sedi­tious 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.

Ques­tion­ing

One com­mon ob­ser­va­tion is that the per­son re­ferred to in a re­port is of­ten called in by the po­lice. He or she may be ques­tioned for over an hour or more, go­ing by news­pa­per re­ports. In some cases, it is re­ported that the per­son may be de­tained even though even­tu­ally al­lowed to leave.

Un­less some other of­fence has been com­mit­ted which war­rants ques­tion­ing and de­ten­tion, it would ap­pear that pro­longed ques­tion­ing or de­ten­tion serves lit­tle pur­pose. This is be­cause if the con­tent is sedi­tious and the sub­ject mat­ter is in writ­ing, it is an ex­am­i­na­tion of this doc­u­ment that will show whether it has a sedi­tious ten­dency.

Where sedi­tion is in the form of oral state­ments made, the need for ques­tion­ing would be more of peo­ple who heard the state­ments be­ing made so as to es­tab­lish whether such state­ments were in­deed ut­tered.

As far as the per­son com­plained against is concerned, it is a mat­ter of whether he ad­mits or de­nies mak­ing those state­ments.

In­ten­tion

In a re­cent in­ci­dent re­ported in a news por­tal, a se­nior of­fi­cer of the Na­tional Civics Bureau was al­leged to have made racist re­marks. He was re­ported to have de­nied mak­ing such state­ments. Whether such state­ments were in­deed sedi­tious would de­pend on the words ac­tu­ally used, and the con­text in which they were used.

How­ever, what is in­ter­est­ing is that the bureau is re­ported to have sub­se­quently is­sued a state­ment that the se­nior of­fi­cer was ex­press­ing his per­sonal views and was not mak­ing an of­fi­cial state­ment with the in­ten­tion of in­sult­ing any­one. Such state­ments them­selves show a lack of un­der­stand­ing of what is sedi­tious even at se­nior lev­els.

When it comes to the is­sue of sedi­tion, the in­ten­tion of the per­son mak­ing a sedi­tious state­ment is to­tally ir­rel­e­vant if the state­ment is in­deed sedi­tious. Sec­tion 3(3) of the Sedi­tion Act 1948 clearly sets this out in the para­graph that fol­lows:

“For the pur­pose of prov­ing the com­mis­sion of any of­fence against this Act, the in­ten- tion 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”.

Thus in cases in which in­di­vid­u­als have been charged and con­victed, it can hardly be said that the as­pect of in­ten­tion was ever taken into ac­count. Of course, in rare cases where a lack of in­ten­tion ex­ists, it might serve to mit­i­gate the pun­ish­ment.

Con­clu­sion

Whilst no statis­tics are avail­able to the writer, one is left with the im­pres­sion that based on the fre­quency of po­lice re­ports al­leg­ing sedi­tion, the num­ber of prose­cu­tions that are known to fol­low would make it ap­pear that many, if not most re­ports, do not dis­close any of­fence.

This is be­cause as stated ear­lier, sedi­tion is more than merely mak­ing state­ments which have a link or con­nec­tion to race, re­li­gion or lan­guage which make cer­tain in­di­vid­u­als un­happy with what has been said and per­haps prompt them to lodge po­lice re­ports for pub­lic­ity and mileage.

In Pub­lic Pros­e­cu­tor vs Mark Kod­ing, the court held that state­ments in Par­lia­ment which pose a ques­tion whether the Govern­ment should al­low the con­tin­u­a­tion of Chi­nese and Tamil schools, and the use of Chi­nese and Tamil on road signs, were con­sid­ered to not have a sedi­tious ten­dency.

How­ever, Mark Kod­ing was found guilty on sedi­tion not be­cause he had raised the ques­tion but he had gone on to say that if the Fed­eral Con­sti­tu­tion al­lowed such use, then the rel­e­vant pro­vi­sions should be amended to re­strict such en­thu­si­asm.

Of course, there is un­doubt­edly a need to avoid the pub­li­ca­tion of con­tent which is gen­er­ally found to be of­fen­sive. The an­swer to this may lie in look­ing into other ex­ist­ing laws or even cre­at­ing new laws but not on sedi­tion.

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