AUGUST 21 — “A line must be drawn between the right to freedom of speech and sedition,” said High Court Judge Raja Azlan Shah (as His Highness then was).
The learned judge was halfway through his judgment in the case of Public Prosecutor V Ooi Kee Saik & Ors [1971] when he made the statement. A doyen of Malaysian judges, the learned judge had earlier said that “we must resist the tendency to regard the right to freedom of speech as self-subsistent or absolute. The right to freedom of speech is simply the right which everyone has to say, write or publish what he pleases so long as he does not commit a breach of the law. If he says or publishes anything expressive of a seditious tendency he is guilty of sedition.”
In this country the court draws the line. The question arises: where is the line to be drawn; when does free political criticism end and sedition begin? According to the learned judge, the right to free speech ceases at the point where it comes within the mischief of section 3 of the Sedition Act 1948. The dividing line between lawful criticism and sedition is as follows:
If upon reading an impugned speech as a whole the court finds that it was intended to be a criticism of government policy or administration with a view to obtain its change or reform, the speech is safe.
But if the court comes to the conclusion that the speech used naturally, clearly and indubitably, has the tendency of stirring up hatred, contempt or disaffection against the government, then it is caught by section 3 of the Act.
The court in Ooi Kee Saik, having taken the speech as a whole and after making all allowances for the enthusiasm of the speaker, held that it went very much beyond the limits of freedom of expression. The speech in the court’s opinion was expressive of a seditious tendency.
Four years later in the case of Public Prosecutor v Fan Yew Teng [1975] High Court Judge Abdul Hamid (as he then was) said:
“The [Sedition] Act is no way directed at any law-abiding citizen, nor is it directed at those whose words are expressive of only a tendency to point out errors or defects in the government or Constitution as by law established, even though the condemnation may be couched in the strongest possible language.
“It is lawful and not actionable so long as the criticism is fair and temperate. It is evident from the Act that the government, like the court or any other institution, does not enjoy immunity from fair criticism. Fair criticism however strong would not infringe that Act unless the words used have a tendency to produce any of the consequences set out in [section 3] of the Act.”
Subscribing to the views expressed by Justice Raja Azlan Shah, Justice Abdul Hamid said:
“Raja Azlan Shah J spoke of a line that must be drawn between the right to freedom of speech and sedition. The court draws that line. May I respectfully add that once such line is drawn, this should provide enough caution to persons embarking upon the path of criticism.
“The court cannot, however, be expected, in drawing such line, to weigh the right to freedom of speech and sedition as though it is measuring it in the nice balance of a jeweller’s scale. Suffice if the court could expound some principle by which a citizen may be guided as to when the light of freedom of speech recedes, and the darkness of sedition begins.”
A further four years later, High Court Judge Ajaib Singh (as he then was) in the case of PP v Ooi Kee Saik [1979] said:
“The intention of the accused when he made the speech and used words which are alleged to be seditious is not material or relevant for it is provided in section 3(3) of the Sedition Act that the intention of the speaker shall be deemed to be irrelevant if in fact the words have a seditious tendency.
“Therefore if the speech of the accused comes within the provisions of the Act as having a seditious tendency he commits the offence of uttering seditious words whether or not he intended his speech to have a seditious tendency.... [[T]o establish its case against the accused the prosecution is not obliged to prove that anything said in his speech was true or false or that it caused any disturbance or a breach of the peace.”
Justice Ajaib Singh added:
“Intention of the speaker as the Sedition Act provides is irrelevant. Fair criticism of government policies is not unlawful and is not seditious per se but in criticising government policies or those of opposite political parties utmost care must be taken to ensure that the words uttered or published do not otherwise have a seditious tendency as defined in the Sedition Act.”
When a charge of sedition under the Sedition Act came before the High Court again in 1986 in the case of Public Prosecutor v Param Cumaraswamy, High Court Judge Chan (as he then was) had this to say:
“If the words complained of are themselves ‘expressive of a seditious intention’ as defined in the [Act] they are ‘seditious words’. It is not necessary to produce any extrinsic evidence of 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 [Act] the seditious intention appears without any extrinsic evidence.”
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 Act.
The above is the law — the doing or making of any act or publication having in fact a seditious tendency renders the person responsible liable to prosecution under the Act.
So mind your words.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
