JULY 23 — Dear Datuk Seri Zahid Hamidi,

I refer to your speech in Singapore as quoted by The Malay Mail Online on July 6 where you said that “Now however they want to abolish the Sedition Act too... I do not think there is a need, because what have we got left to protect the people and the country’s peace? In addition, when it is repealed, all slander, allegations and condemnations by provocators can be considered legitimate even though our democracy does not require it.”

With all due respect dear sir, your statement has barely any legal basis.

I have recently completed my internship with the most famous and (self-proclaimed) hottest lawyer on Twitterjaya (and as he sometimes claims, hottest lawyer alive), THE Syahredzan Johan. And during my time with him, he has assigned me research on the state of sedition laws in Malaysia. Having thoroughly researched on it, I am now able to claim that I have acquired enough knowledge about it to prove that your statement is, unfortunately, legally incorrect.

Now, I am sure that Datuk Seri has endless things to do and meetings to attend to; working hard solving crime in Malaysia. I mean; nobody would have time to waste, making funny statements or to starting pointless arguments in Parliament, right? I will hence make my letter brief so that Datuk Seri can introduce new policies to stop deaths in police custody while setting up the IPCMC in your sincere service to the people of Malaysia.

Coming back to my main point, I would just like to point out to Datuk Seri that the Sedition Act 1948 and the Defamation Act 1957 are two different laws. By repealing the Sedition Act, the only Act that will be repealed would be the Sedition Act. Surprising, I know. But that is generally how the law works.

Datuk Seri, in short; the Sedition Act 1948 was enacted by our British colonial masters at that particular point in time to combat communist terrorism. It was a serious issue back then when the communist were actively spreading their ideologies, badly affecting the British operations here in Malaya. Interestingly, this Act was never once used against the communists. Its’ usage only became active in the 1960s when the government used it to crack down on opposition figures such as Ooi Kee Saik and Fan Yew Teng. Action on Lim Kit Siang and Lim Guan Eng followed suit soon after. Whether this is generally a good thing, I am not sure. But from a legal perspective, they formed the early precedents of sedition laws in Malaysia.

That being said, the main issue here is whether the sedition law is necessary at all. Under s.4 of the Sedition Act 1948, one would have committed an offence by uttering words which has “seditious tendency”.  The definition of a “seditious tendency” is stated in s.3 which translates as words that have a tendency to generally stir up emotions against the government or the Ruler or even towards the courts and to provoke racial tension. Then the question arises, how do we now determine if these words has such tendency? The case laws by those guys I mentioned interpreted this. I have summed them up into 8 points:

  1. Seditious words have to be spoken by the accused. [PP v Ooi Kee Saik & Ors]
  2. It is immaterial whether statement is true or false. [PP v Oh Keng Seng]
  3. Constructive criticism towards government policy for change or reform is safe speech. But if court is satisfied that speech is clearly aimed at stirring up hatred, contempt or disaffection towards the government (or the YDPA), it shall be caught within s.3(1) of the Act. [PP v Ooi Kee Saik & Ors]
  4.  ‘Excite disaffection’ in relation to a Government refers to the implanting or arousing or stimulating in the minds of people a feeling of antagonism, enmity and disloyalty tending to make government insecure. [PP v Param Cumaraswamy]
  5. s6(2) provides that a person shall not be convicted under s4(1)© or (d) if he does not authorize the publication or has no reason to believe that the publication had a seditious tendency. [PP v Ooi Kee Saik & Ors]
  6. The courts must determine sedition tendency as the general impression that a normal person has upon reading the statement. [PP v Fan Yew Teng]
  7. It is unnecessary for the Prosecution to specify in charge which of the 6 tendencies the accused violated. Judge may determine in trial. [PP v Param Cumaraswamy]
  8. Words are seditious if they are likely to incite or influence the audience actually addressed or if they are likely to incite or influence ordinary people even though the audience addressed was unaffected by the words [PP v Param Cumaraswamy]

Datuk Seri, this means you would need to arrest the whole Twitterjaya and jail them for having differing views from yours (and that’s just a small portion of people you would need to arrest)! Such acts are despicable as it restricts the people’s freedom of expression and everybody should be free to express their love and give monkey hugs! This also means that the Sedition Act 1948 goes against Article 10 of our Federal Constitution and so the Act should be deemed unconstitutional.

In all seriousness, Datuk Seri. Your concern was that our country’s peace and stability will be threatened once this Act is repealed. You said that allegations, slanders and condemnations will be legitimate. But not to worry, having sneaked into Syah’s room one fine day when he was out at court and did some research using his racks of books, I found out this is not true! We will still have the Defamation Act 1957 (for civil cases) and s.499 – 502 of our Penal Code (for criminal cases) to deal with people with ill intent who speak nonsense. Personally, I get very irritated with people who intentionally say stupid things to gain media attention, all of them of which are of course, very different from yourself, Datuk Seri.

Defamation laws in Malaysia, given that they are modeled after defamation laws in the UK, are very comprehensive and well established. Defamatory statements can be done verbally (slander) or through other mediums (libel). To establish defamation under the Defamation Act 1957, the statement must first be defamatory, it must refer to the plaintiff and that the statement must be published.

Now how do we determine if the statement is defamatory? Our courts, in Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Bhd & Anor held that a statement is defamatory if it has the “tendency to excite against the plaintiff the adverse opinion of others, although no one believes it’s true. Another test is: would the words tend to lower the plaintiff in the estimation of right-thinking members of the public? The typical type of defamation is an attack upon the moral character of the plaintiff attributing crime, dishonesty, untruthfulness, ingratitude or cruelty.” By that, if the court finds that the statement is directed to the plaintiff and that it is published, the case of See Hoe Thean Sun & Anor v Lim Tee Keng has determined that “When words are published which are both false and defamatory, the law presumes malice on the part of the person who publishes them.”

Besides, the law of defamation in Malaysia also provides for a wide range of defenses available to the defendants so that their rights would not be violated. Specific privileges are given to people of different positions so that their work can be conducted properly and the system can maintain its’ check and balances. People who can prove that they made fair comments would also be able to establish their defense as well as those who are able to prove in court that what they said was true (Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor).

Datuk Seri, our defamatory laws serve the same purpose as the sedition laws that you have complained about. No one would be able to make a mean or condemning remark without the chance of being scrutinized by the courts and our judiciary system.

Furthermore, your government has also in countless cases utilized these very same laws to sue your political opponents and sometimes successfully so. Hence there is no need whatsoever to retain the archaic Sedition Act which initially purpose was to combat terrorism. Datuk Seri, your political opponents may be nasty, but they are no terrorists, their freedom of expression deserves to be protected as enshrined in our Federal Constitution. Your colleague, the well-respected and widely adored Mr Tan Keng Liang claimed that the Sedition Act will go once the National Harmony Act is enacted. I don’t know where he got his information from, but I personally think that there is no need for replacements as sedition laws are no longer relevant in this time and day. However in the case that it really happens, I can only humble ask that you would please ensure that this new law complies with the fundamental liberties enshrined under our Federal Constitution.

Datuk Seri, I hope this letter has cleared your confusion on the matter. Your concern is a non-issue. The sovereignty of this country will not be threatened by the speeches of some idiots as it does not make their statements legally legitimate. We have enough established laws in the country to deal with this issue.

For your information, the UK stopped convicting people under sedition laws since 1909. We should consider doing that soon too. After all, better 104 years late than never right?

Yours sincerely,
@jofanpang

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malay Mail Online.