Used By Permission of The Star - Tuesday December 25, 2007
OF LATE there have been gatherings and street demonstrations by various groups, prompting the police to act to disperse the crowd.
The Home Affairs Minister has invoked the provisions of the Internal Security Act 1960 to detain certain individuals. It is reported that sedition charges have also being laid against certain individuals.
A reader wants to know why different laws are being invoked because a group of people have demonstrated on a particular issue, and whether it is necessary to involve different laws over one incident. Even though only one event may have taken place, different offences may occur which could be committed by the same or different people.
Demonstrations and processions are not bad things by themselves. The Federal Constitution provides for freedom of assembly subject to specified restrictions. Where demonstrations are concerned, these are adequately provided for under the provisions of the Penal Code and the Police Act 1967. However, the situation can take a different turn when seditious statements are made at or in connection with such gatherings. When this happens, the Sedition Act 1948 has often been relied upon if what is said or published has a seditious tendency.
What is sedition has been described by judge J. Stephens as, ¡°Words or writing used or written for the purpose of bringing into contempt the Crown or the Constitution of the Country, or administration of Justice, or to excite her Majesty¡¯s subjects to alter existing laws otherwise than by lawful and constitutional means as well as to incite feelings of ill-will and hostility between different classes of Her Majesty¡¯s subjects.¡±
Traditionally sedition has been seen as an offence closely connected to being involved in a rebellion and described as ¡°disloyalty in action¡±. However, the offence in Malaysia has acquired an additional feature in sub paragraph (f) of the Sedition Act which makes it seditious to touch upon what in our context are referred to as sensitive issues. Under the Act, the intention of the person uttering the words is not a relevant factor in constituting an offence. Section 3(3) of the Sedition Act 1948 specifically provides that the intention of the person is irrelevant.
Another question that often arises is whether words ought to be regarded as seditious if there is no effect produced on the audience to whom they are addressed.
Even in England, the views expressed are not entirely consistent. In Rex v. Aldred, Coleridge J. said that it is necessary ¡°... to look at all the circumstances surrounding the publication with the view of seeing whether the language used is calculated to produce the results imputed; that is to say, you are entitled to look at the audience addressed, because language which would be innocuous, practically speaking, if used in an assembly of professors or divines, might produce a different result if they were used before an excited audience of young and uneducated men.¡±
A different and opposing view was expressed by Cave J. in Reg v. Burns who in the course of deciding whether the words had such a tendency went on to say: ¡°A man cannot escape from the consequences of uttering words (with a seditious tendency) solely because the persons to whom they are addressed may be too wise or too temperate to be seduced (by those words).¡±
Another characteristic of our society is that whenever sensitive issues are touched upon, rumours will circulate of possible racial conflict.
Many do not realise that passing such messages can amount to an offence. Section 28 of the Internal Security Act 1960 provides that ¡°any person who, by word of mouth or in writing or in any newspaper, periodical, book, circular or other printed publication or by any other means spreads false reports or makes false statements likely to cause public alarm, shall be guilty of an offence¡±.
If anyone thinks that he is immune when using e-mail or sms, it should be noted that the Act is all encompassing and covers everyone. Even more relevant is Section 211(1) of the Communications and Multimedia Act 1998 which stipulates that it is an offence for a content application service provider or other person using a content application service to provide content that is false.
Section 8(1) of the Printing Presses and Publications Act 1984 states that: ¡°Where in any publication there is maliciously published any false news, the printer, publisher, editor and the writer thereof shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding twenty thousand ringgit or both.¡±
Although this provision is meant to be used against those involved in the publishing business, it is a provision that needs to be kept in mind. In view of this, it may be asked whether it is necessary to exercise detention powers under the Internal Security Act 1960.
Unlike other laws where an offender is punished after committing the offence, the Internal Security Act is pre-emptive in nature when security is otherwise likely to be breached. However, because preventive detention does not allow a person the same liberty and privileges that are otherwise available, it is subject to criticism.