The People’s Judge continues his call to the young to use the tools of modern communication to effect change in Malaysia, pointing out how we are stuck with a government using 19th century British colonial laws to further repress us. Read Part 1 of this article here.
The sedition legislation is the most oppressive law ever devised by a colonial power to subjugate the natives by the colonialists who took over the land they had colonized. In this country the Sedition Act 1948 is typical of such colonialism – this word means ‘the practice of acquiring and controlling another country and occupying it’. If you read on you will know that this is the true picture of how our Sedition Act 1948 migrated from 1870 British India to Peninsular Malaya in 1948 when the country was a British protectorate except for Malacca and Penang which were colonies.
There is an excellent article in the Star, Wednesday, 9 February 2011, titled Sedition law’s overreach by Professor Shad Saleem Faruqi. It says:
Definition: Section 2 and 3(1) of the [Sedition Act 1948] state that any act, speech, words or publication are seditious if they have a tendency towards any of the following:
To bring into hatred or contempt or to excite disaffection against any Ruler or government.
Dissaffection does not mean absence of affection but refers to disloyalty, enmity and hostility: PP v Param Cumaraswamy  1 MLJ 526
Application of the law: In Param Cumaraswamy it was held that intention to incite to violence, tumult or public disorder is not a necessary ingredient of the crime.
As long as the words were intentionally published and they had a tendency to cause ill will, etc, the offence is complete.
The Professor also alluded to the acquittal of Mr Cumaraswamy:
But in PP v Param the defendant’s criticism of the Pardon’s Board for not applying uniform standards in considering applications for mercy was held not to constitute sedition.
I was the judge who tried Mr Param Cumaraswamy. At the conclusion of the trial, I acquitted him.
As pointed out by Professor Faruqi ‘As long as the words were intentionally published and they had a tendency to cause ill will, etc, the offence is’ established. I had to acquit Param Cumaraswamy because I made a finding of fact that the words when uttered by him, who is a mere lawyer without any following, could not possibly have any tendency ‘to bring into hatred or contempt or to excite disaffection against any Ruler or government’. The Public Prosecutor, who in this case was the Attorney-General – he was Abu Talib – did not appeal.
Just think how repressive this law is. You can’t even say that the powers that be were practicing double standards. If Param had been tried before another judge he could have been convicted. For example, in Lim Guan Eng v PP  3 MLJ 14, HC & CA;  2 MLJ 577, FC an opposition leader who complained that justice was selectively administered was convicted of the sedition charge. Even members of Parliament can be convicted of sedition for words spoken in Parliament: see Mark Koding v PP  2 MLJ 120.
Mahathir when he was Prime Minister spoke in Parliament to remove the powers of the rulers yet nothing happened to him. But if anyone were to point out there is selective prosecution he can be charged for sedition and most probably he would be convicted.
At the end of his article, the Professor pointed out that:
The concept of sedition in Malaysia is much broader than in the UK, Ireland, India and Australia.
On ideal democratic standards, the law is open to many criticisms for its breadth and for its far-reaching implications on political life in the country.
For this reason it is ripe for review. Whether the technique for law reform will be legislative or judicial remains to be seen.
The professor is quite right. The Sedition Act 1948 is an archaic piece of legislation. It migrated from 1870 British India to Peninsular Malaya in 1948 (Sabah in 1964 and Sarawak in 1969). While other countries of the Commonwealth, of which Malaysia is a member, have advanced into the modern age, in this country, time stood still. We are still back in the time of Sir James Stephen in 1870 British India. This was pointed out by Sinha CJ in Kader Nath v State of Bihar  AIR, SC 955. In fact section 124A of the Indian Penal Code was the work of Stephen J.
Sir James Stephen was the judge (he was Mr Justice Stephen in England) whose definition of sedition appeared as Article 93 of the Digest of the Criminal Law. I said this before I called on Mr Cumaraswamy to enter on his defence, “Although it may appear to be in English case law that incitement to violence or inciting others to public disorders is an essential ingredient of sedition, it is not so in a criminal code which has as its model Stephen’s definition.”
Article 93 of the Digest was used as the model for the crime of sedition in the Criminal Code of the Gold Coast.
So that when we look at section 124A of the Indian Penal Code or at the Criminal Code of the Gold Coast on Sedition, or our own Sedition Act, we are looking at the definition of sedition as apprehended by Sir James Stephen back in the year 1870. The English common law on sedition has developed separately from Stephen’s 1870 definition. As pointed out by Professor Faruqi other nations like the UK, Ireland, India and Australia have moved on to modern times. The modern law of sedition is no longer repressive in other countries but not so in Malaysia where our sedition law is the same law as applied to the colonies of Great Britain back in the year 1870. For us Malaysians we live in a retrograde – this word means moving backwards to a worse state – country where our clock had stopped in the year 1870.
Now, I trust you will realize that we Malaysians are in dire straits. Don’t you think it is time for us to move on to a better Malaysia. Like the people of Egypt we can use people’s power to change from tyranny to a true democracy. Use the power of your vote to unseat the oppressors.
We have been under their yoke for 53 years. Enough is enough!
Use facebook and twitter. Use your email and if every reader of this article emails it to his friends we will be able to persuade a whole generation of young people to vote out the BN and replace them with a new government.
It doesn’t matter that the new are inexperienced but at least we have a government of the people, by the people and for the people. It took the English peoples 700 years to get rid of their tyrannical kings. The American people took 250 years to get to where they are today.
I don’t think we will take that long because we are resilient and we have the benefit of hindsight. And above all we have our young people whose young minds will be able to meet the challenges ahead.
NH Chan, a much respected former Court of Appeal Judge, is a gavel of justice that has no hesitation in pounding on Federal Court judges with wooden desks for heads. Retired from the Judiciary to become the People’s Judge. Wrote the explosive “Judging The Judges”, now in its 2nd edition as “How To Judge The Judges”. Once famously hinted at a possible “case match” between lawyer and judge by remarking that “something is rotten in the state of Denmark” (see Ayer Molek Rubber Company Berhad & Ors v Insas Berhad & Anor  3 CLJ 359). We need more people like NH Chan. That’s why you should buy PASOC and his book.
Tags: Abu Talib, Barisan Nasional, Democracy, Dictatorship, Egypt Revolution, Hosni Mubarak, Jordan, Lim Chong Eu, Lim Guan Eng, Lim Kit Siang, N.H. Chan, NH Chan, Oligarychy, PASOC, Param Cumaraswamy, Pardons Board, Shad Faruqi, Totalitarianism, Tunisia uprising, Yemen uprising, rich politicians, sedition, social media, social revolution
NH Chan, a much respected former Court of Appeal Judge, is a gavel of justice that has no hesitation in pounding on Federal Court judges with wooden desks for heads. Retired from the Judiciary to become the People’s Judge. Wrote the explosive “Judging The Judges”, now in its 2nd edition as “How To Judge The Judges”. Once famously hinted at a possible “case match” between lawyer and judge by remarking that “something is rotten in the state of Denmark” (see Ayer Molek Rubber Company Berhad & Ors v Insas Berhad & Anor  3 CLJ 359). We need more people like NH Chan. That is why you should buy PASOC and his book.
Posted on 18 February 2011. You can follow any responses to this entry through the RSS 2.0.
Read more articles posted by NH Chan.