“A LINE must be drawn between the right to freedom of speech and sedition,” High Court Judge Raja Azlan Shah had said.

The learned judge made this remark midway through his judgment in the case of Public Prosecutor v Ooi Kee Saik & Ors (1971). A doyen of Malaysian judges, he earlier emphasised 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 that everyone has to say, write or publish what they please, so long as they do not breach the law. If they say or publish anything expressive of a seditious tendency, they are guilty of sedition.”

In Malaysia, the court determines where the line is drawn. The question then arises: where is the line to be drawn, and when does free political criticism end and sedition begin? According to the learned judge, the right to free speech ceases when it falls 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 as a criticism of government policy or administration with a view to achieving change or reform, the speech is safe.

However, if the court concludes that the speech used naturally, clearly, and indubitably has the tendency to stir up hatred, contempt, or disaffection against the government, it is caught by section 3 of the Act.

In the Ooi Kee Saik case, the court, after considering the speech as a whole and making allowances for the enthusiasm of the speaker, held that it went far beyond the limits of freedom of expression. The speech, in the court’s opinion, expressed a seditious tendency.

Four years later, in the case of Public Prosecutor v Fan Yew Teng (1975), High Court Judge Abdul Hamid said, “The [Sedition] Act is in no way directed at any law-abiding citizen, nor is it directed at those whose words express only a tendency to point out errors or defects in the government or Constitution as established by law, even if the condemnation is 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 the Act unless the words used have a tendency to produce any of the consequences set out in (section 3) of the Act.”

Echoing the views expressed by Justice Raja Azlan Shah, Justice Abdul Hamid added:

“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 a line is drawn, it should provide enough caution to those embarking on the path of criticism.

“The court cannot, however, be expected, in drawing such a line, to weigh the right to freedom of speech and sedition as though it is measuring it on the delicate balance of a jeweller’s scale. It suffices 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.”

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 that 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 irrelevant if, in fact, the words have a seditious tendency.

“Therefore, if the speech of the accused falls 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. To 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 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 opposing 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 had said, “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. – August 22, 2024.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.