Malaysia on the wrong side of history in Karpal’s conviction for sedition

Karpal Singh’s conviction for sedition recently has thrown Malaysia back into the days of the Court of Star Chambers in the 17th century where people were convicted and imprisoned for critisicing the British monarch and the British Empire.

The law on sedition came about during a period when kings and queens were believed to have divine powers and they were believed to be god sent and as such the laws dispensed by them were unquestionable and criticism of rulers were seen as sinful and unlawful and therefore they cannot be challenged. Today, this believe is no longer true, foolish and an abberation.

In India prominent Indian freedom fighters and nationalist like Mahatma Gandhi, V.O. Chidambaram Pillai ( better known as “ Kappalotiyar Tamilzhan) and Balgandhar Tilak were arrested charged for sedition for speaking against the British in India. Mahatma Gandhi for example was imprisoned several times after being convicted for sedition.

The  intention of the British was clearly to  suppress  and  punish  per se  any  individual  who  attempts  to  create  feelings  of  disaffection,  hatred  or  contempt  to its rule.   The  crime  of  sedition  was  the  most  effective  weapon  used by  the  British  to suppress  dissent  and  to  fulfill  its  colonial  agenda  in  India.

The Sedition Act is draconian because the truth or falsity of the words uttered or written, are immaterial and will not provide a defense. Even if the words are uttered by the speaker with the most, noblest intention again this will not provide him with a defence. It is therefore an absolute liability offence where intention is irrelevant. In Public Prosecutor v Mark Koding, Justice Azmi Kamaruddin in the course of his judgment said:

“… it is immaterial whether the accused intention or motive was honorable or evil when making the speech.”  

All the judge has to do is to see whether the words are likely to create disaffection against the government, the ruler or the people. If in his honest judgment he finds it is likely to do that then the statement is seditious. The Malaysian courts have adopted the meaning of “disaffection” in the Australian case of Burns v Ransley, which means disloyalty, enmity and hostility. In other common law jurisdictions like Canada, Australia and India it has been established sedition could not be established without proof of acts that have implicit in them the idea of subverting the government by violent means and inciting others to violence and disorder. Unfortunately the trend in Malaysia gleaned from the cases decided, does not require any proof of incitement to violence or unlawful behaviour. In essence the Malaysian courts have rejected the common law requirement.

It is quite clear that prosecutions under the Sedition Act are carried out to suppress dissent and its reach even extends to what is said by Members of Parliament, in Parliament. This is rather shocking as the electorate expects the people whom they have voted into Parliament to speak on their behalf without fear or favour. The question is, how are the representatives of the people expected to perform their parliamentary duties if their mouths are gagged by the Sedition Act? This is definitely an affront to the principle of parliamentary democracy. No other parliament in the world is subjected to such a restriction.

It is unfortunate to see that Malaysia has gone down the same road that the British had taken decades ago and with the convictions of Karpal Singh, Lim Guan Eng and Uthaya Kumar of Hindraf for sedition, they will go down in history undoubtedly as the Mahathma Gandhi’s of Malaysia.

In many countries, sedition laws have either become obsolete or have been repealed. There has not been a prosecution for sedition in Canada since the 1950s.This may be due to the fact that the Law Reform commission of Canada in 1986 had described that the offence of sedition as “an outdated and unprincipled law”. In Australia, the post 9/11 era led to the passing of the Anti- Terrorism Act (No 2) 2005 which made substantial amendments to existing sedition laws by repealing several sections of the Crimes Act 1914 concerning sedition. In India, most charges of sedition are dismissed since the Indian Supreme Court has decided that the incitement to violence and disorder must be proven in order to constitute the offence of sedition unlike Malaysia. In England, the last conviction for sedition occurred in 1909 and thereafter prosecutions have become very rare and now the UK has repealed its laws on sedition. Even Kenya has repealed their Sedition Act.

Although our Sedition Act is up for repeal as announced by the Prime Minister in July 2012, it is sad to note that the draconian law is continuously being used and threatened to be used against the people. The government should seriously push for the repeal of the Sedition Act immediately as promised and stop the use of the Act pending its repeal as Karpal Singh’s conviction for sedition has severely dented the country’s image in the global arena more so with Malaysia being a former member of United Nations Human Rights Council we have clearly send the wrong message to the global community and now we are surely in the wrong side of history. – April 9, 2014.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.