The Umno Youth report

against malaysiakini and the resultant police raid yesterday have raised more than an eyebrow or two.

Malaysians are calling in by the dozens to ask if the police have the power to act as they did, in arriving unannounced and taking away computer equipment without a search warrant.

The answers lie in the provisions of the Sedition Act 1948, although the clauses are open to interpretation. Ultimately, it is the court that will decide if the letter posted on malaysiakini on Jan 9 was seditious as alleged.

What is considered 'seditious'?

An act, speech, word, publication or other thing that:

• Brings into hatred or contempt or excites disaffection against any Ruler or government, or the administration of justice;

Promotes feelings of ill-will and hostility between different races and classes of Malaysians;

Questions any matter, right, status, position, privilege, sovereignty or prerogative established or protected by specific provisions of the Federal Constitution.

What is not seditious?

An act, speech, word, publication or other thing that:

• Shows that any Ruler has been misled or mistaken in any measures he has taken;

Points out errors or defects in government, constitution, legislation or administration of justice with a view to remedying the error or defect;

Persuades the subjects of any Ruler or government to reform matters by lawful means;

Points out what could produce or have a tendency to produce feelings of ill-will and enmity between the different races and classes, with a view to eliminating such matters.

Are there exclusions?

The rights under Part III, Article 152, 153 and 181 of the Federal Constitution may not be questioned in any context. These cover matters of status, rights and privileges, among others.

Who can be charged under the act?

Section 4(1) defines the offender as anyone who carries out any act that has a seditious tendency. This includes preparations for such an act or conspiring with anyone who is involved in such an act. Action can also be taken in cases where the act has not been carried out but which, if it had, would have a seditious tendency.

This covers the saying of seditious words; the printing, publishing, sale, offer for sale, distribution or reproduction of any seditious publication; and import of seditious publications.

What is the penalty for these offences?

On conviction, the first-time offender is liable to a fine not exceeding RM5,000 or imprisonment for up to three years, or both. Subsequent offences are punishable with a maximum jail sentence of five years. Any seditious publication found in possession of the offender and used as evidence will be forfeited and destroyed, or disposed of as the court directs.

Can someone be charged for possessing seditious material?

Yes. On conviction, there is a maximum fine of RM2,000 or 18 months' jail, or both, for a first offence. Repeat offenders may be jailed for up to three years.

Who has been charged recently?

Since January 2000, five charges have been filed in court, including one against the editor of Harakah , which is pending. Opposition politician Marina Yusof was fined RM5,000, while the case against prominent lawyer and politician Karpal Singh was withdrawn.

What is the requirement on the standard of evidence?

The evidence must be corroborated by more than one witness. The accused may not be convicted if there is proof that he or she did not authorize, consent to or have knowledge of the seditious tendency of the material.

Is it compulsory for the police to obtain a search warrant?

Generally yes, except where there is reasonable cause to believe that seditious material is being concealed on the premises and that any delay in retrieving it may lead to its removal.

Can the police arrest anyone without a warrant?

Yes, if they have reasonable grounds to suspect that a seditious act is being, or is likely to be committed.

What could happen to any newspaper that contains seditious matter?

The court may order its suspension for up to a year and prevent its senior editorial staff from being engaged in newspaper work in every way for up to a year. Printing presses may be seized. In all cases, however, the court may specify conditions in its order.

What other orders may the court issue?

It may prohibit the continued circulation of the seditious material and order everyone in possession of a copy to hand this in to the police. Those who do not comply with the court's prohibition order or who knowingly retain prohibited material are liable, upon conviction, to a fine not exceeding RM1,000 or one year's jail, or both.

The court may also empower police to enter and search premises to seize prohibited material, and to use such force as may be necessary for this purpose. They must post a copy of the prohibition order and search warrant on the premises. The owner may appeal to the court within 14 days to discharge the prohibition order and for the return of the material.