The Sedition Act has reared its ugly head again.

This time it has been used against Irene Fernandez and former Perak Mentri Besar, Nizar Mohamed.

We have seen how the Sedition Act was used against Karpal Singh, a prominent lawyer and politician, when he was charged for insulting the Sultan of Perak for saying that His Majesty should not interfere with matters concerning the state and that he can be sued for doing so.

Some may wonder what sedition is all about as the word sounds very serious and terrifying.

No doubt it is a serious and terrifying offence as one may be imprisoned for merely voicing out different views and opinions.

Worst still one may even be branded as a criminal, not for committing crimes like theft and murder but by only having different views or opinions that may be interpreted as being anti- establishment by the powers that be.

The prime minister has announced recently that the Sedition Act will be reviewed.

This article posits that the Sedition Act 1948 should not be reviewed but repealed.

The question is why?

I say this because, any piece of legislation which imprisons people for holding different views and opinions is to say the least, draconic.

Such a law should not be a part of any legal system.

To understand why this is so, one needs to inquire into history to look at the origins of the offence of sedition.

The offence itself is made in England.It is part of the common law of England.

It was created to protect the British monarch and the British Empire from being criticised or vilified.

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.

Today, this believe is no longer true and is seen as foolish.

Therefore a law which was created with such a purpose in mind may not be suitable or relevant in present times.

The common law provides that one is only deemed to have uttered or published words which are seditious if those words incite people to violence.

Therefore words which do not incite others violence does not amount to sedition.

Although this was the case in Britain, its colonies were visited with legislation against sedition which was more draconian.

In India for example the British colonial courts through several cases decided that the common law on sedition as applied in England will not be applied in India.

That means words which merely criticised the British colonial government in India over its unfair policies and practices amounted to sedition.

That explains why prominent Indian freedom fighters and nationalist like Mahatma Gandhi, V O Chidambaram Pillai 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, irrespective of the whether or not disorder follows or is likely to follow.

Clearly, this was the most convenient way to successfully prosecute freedom fighters and nationalist.

The crime of sedition was the most effective weapon used by the British to suppress dissent and to fulfill its colonial agenda in India.

A further qualification of incitement to violence and public disorder to prove the offence of sedition would have definitely been an hindrance.

The law on sedition that was applied in India is the same as ours in Malaysia.

The Sedition Act 1948 was enacted by the British to suppress communist elements within the Communist Party of Malaya and its propaganda which was active in Malaya during the emergency period.

The communist officially surrendered to the Malaysian government in 1989.

Although communism is no longer a threat, nevertheless the Sedition Act has been used against members of the opposition, Members of Parliament, journalist and other NGO leaders pursuing campaigns that imply some criticism of the government policies and its institutions.

Some of these individuals have been fined and one occasion even imprisoned under the Sedition Act.

The current Chief Minister of Penang, Lim Guan Eng for example,

was charged and convicted for sedition and was imprisoned.

The British left Malaya in 1957 however the Sedition Act never left with them.

It was actually adopted into the Malaysian legal system by a constitutional amendment.

It is unfortunate that we are still being dictated by colonial laws like the Sedition Act, which is considered obsolete in many commonwealth countries due to its history of being an instrument of oppression.

The Sedition Act is a piece of legislation that can be easily abused and manipulated by the powers that be because of the uncertainty contained in its provisions.

The provisions of the Act are couched with archaic and vague language in particular Section 3(1) (a) - (f) which lays down the situations where words can come within the meaning of ‘seditious tendencies' .

They are as follows:

(a) bring hatred or contempt to the government or to excite disaffection against any ruler or against any government.

(b) to excite its subjects to procure the alteration of the government by unlawful means

(d) to raise discontent or disaffection amongst the people

(e) to promote feeling of ill-will and hostility between the different races

(f) to question any matter, right, status, position, privilege, sovereignty or prerogative protected by the Federal Constitution.

The uncertainty of its provisions is implicit in words like "bringing into hatred or contempt or to excite disaffection against any ruler or against any government" in Section 3.

The language used here is broad and vague enough to catch anything and everything particularly the tendency to question or criticise any government about their policies or actions.

There seems no line drawn between legitimate criticisms and criticisms that lead to incitement to violence and disorder.

It seems that any criticism aimed at any government or its institutions are capable of having seditious tendencies under the Act.

Of grave concern is the fact that the Act can be used quiet easily to stifle legitimate criticisms against the government and its institutions.

Cases have shown that this is possible.

For example Dr Ooi Kee Saik a opposition politician, was charged and sentenced to pay a fine under the Sedition Act for having lamented during his speech about the domination of one particular race (the Malays) in the army, police, educational institutions and business and that these policies do not augur well with the government's policy on racial integration and he accused the government of gross partiality in favour of one race.

The court found that the issues raised by Dr Ooi amounted to bringing the government into hatred or contempt, or exciting feelings of disaffection against the government.

It is clear that Dr Ooi was only calling for greater racial integration between the various races in Malaysia in order to prevent racial imbalance in the institutions of government and that he was only pointing out to the government that they should do away with policies that do not promote racial integration which is a recognised objective of the government.

He did not incite any members of his party or the general public to violence.

In fact many government ministers today have time and again called on the government to maintain better racial balance in the various institutions of the government.

It is difficult to understand how Dr Ooi's statements could be considered as seditious.

The wanton use of the Sedition Act can also be seen in the prosecution of Param Cumaraswamy, a prominent lawyer and a human rights activist, who was charged for having uttered seditious words at a press conference ,where he made statements calling upon the Pardons Board to recommend to the King that the death sentence of a man charged for possession of a firearm be commuted to life imprisonment as it had done in another more serious case, where the accused a influential politician and a serving Minister was guilty discharging a firearm and committing murder.

The accused also urged the Pardons Board to exercise their powers fairly and uniformly so that people would not be made to feel that the Board was discriminating between the rich and the poor in terms of severity of sentence.

The prosecution alleged that the utterance of these words above by the accused have a tendency to raise discontent or disaffection amongst the subjects of the Yang Dipertuan Agong or any ruler of any state and to bring into hatred or contempt or to excite disaffection against any ruler or against any Government

Param Cumaraswamy , was acquitted and discharged after being called to enter his defense on the grounds that the alleged seditious statements did not have the tendency to incite or to raise disaffection among the people and it did no refer to the King but only to the Pardons Board.

In hindsight, Param Cumaraswamy should not have been prosecuted in the first place since it is obvious that he was only seeking reprieve for his client by calling on the Pardons Board to act according to good conscience so that it would not be seen to be discriminatory.

His plea was for a good cause and as such there was nothing seditious in his plea.

Even more worrying is the fact that 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.

The recent incidences involving Irene Fernandez, Nizar and Karpal Singh and has indeed attracted much public attention and we have seen how the machinery of the government particularly the police have swiftly swung into action to investigate the case.

However in hindsight, the alleged seditious statements uttered by Irene Fernandez, Nizar and Karpal Singh seems to be rather trivial, when compared to the statements made by certain Umno delegates at the Umno general assembly in 2007.

Although there were speeches made that were racially inflammatory which would clearly come within the ambit of the Sedition Act, no action taken by the police and surprisingly no one was charged for sedition.

Their inaction seems to be rather mind boggling when compared with the swiftness of the investigations done in the Irene Fernandez cases, Nizar case's and Karpal Singh's case.

Again in the Permatang Pauh by elections in 2008 certain racially inflammatory statements were made against the Chinese community in Malaysia by a Umno politician but lo and behold although the police investigated him, he was never charged for sedition.

Conversely, two bloggers who were perceived to be anti- establishment and one of the founders of Hindraf who only tried to raise the legitimate concerns of the Indian community, were speedily charged for sedition.

The point here is that laws like the Sedition Act can be used to create a culture of fear among the people that they may prosecuted if they spoke their mind on certain issues and of course these type of laws can used at the whims and fancies of the powers that be to only prosecute those whom they feel is a threat to their existence and as shown from the examples above, the Act can be used as a tool for selective prosecution.

I do not understand why is there such a hue and cry made about the Irene Fernandez and Nizar's statements made to the press about the ill-treatment of foreign workers and about the Sultan of Johor purchasing a car number plate.

The authorities should instead investigate Irene Fernandez's claim rather than threatening her with sedition.

His Majesty the Sultan of Johor has already clarified that he had purchased the number plate with his own money after being questioned by Nizar, who for all intents and purpose has a right to express his opinion that His Majesty may have made a mistake.

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" and that there no longer seems to be a need for separate offence of sedition since the conduct that would be proscribed by can be dealt with as incitement, conspiracy, contempt of court or hate propaganda.

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 adopted the British common law where the incitement to violence and disorder must be proven in order to constitute the offence of sedition.

In England, the last conviction for sedition occurred in 1909 and thereafter prosecutions have become very rare. Kenya has repealed their Sedition Act.

The Sedition Act actually spells the death knell for the opposition in any Parliamentary democracy and therefore this is another justification for the repeal of the Sedition Act.

Even if it is argued that that the Sedition Act is necessary to maintain public tranquility and racial harmony, there are enough provisions in the Penal Code to deal with racial strife and anarchy.

People who cross the line by inciting others to overthrow the government or the monarchy through violence or to commit crimes against another community can be dealt with under the Penal Code.

Sedition Act 1948 relic of its time

The relevance of the Sedition Act today must be looked at along the lines of maintaining public order by punishing and deterring those who incite violence and public disorder and curbing the threat of subversion and terrorism.

However, the main theme of the Sedition Act currently in force today clearly, does not address these concerns but it seeks only to criminalize speech or expression that is merely critical of the government and its institutions.

The opposition as the elected representatives of the people and civil society groups should be allowed to criticise the administration of government and its policies since it is the legitimate expectation of the people that the government and the institutions of government are administered in accordance with the principles of transparency and accountability.

As such the repeal of the Act is necessary and timely since the Malaysian Penal Code is equipped with provisions against racial incitement, subversion and curbing terrorist activities which includes inciting people to engage in terrorism against the state and other terrorist activities.

Jeyaseelen Anthony is an advocate and solicitor (non -practicing) and was also a member of the Bar Council Law Reform Committee.