GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.2, April 2013
The Challenges in Controlling Malaysian Bloggers
with the Sedition Act 1948
Rajini Kumar Sreedharam
Faculty of Law, National University Malaysia
[email protected]
Assoc.Prof.Dr.Faridah Jalil
Faculty of Law, National University Malaysia
[email protected]
found that 56% of Malaysians blogged to express their views,
while 49% blogged to keep friends and family updated.4
Abstract— Blogging has become a popular way for a Web user to
publish information on the Web in Malaysia. Bloggers write blog
posts, share their likes and dislikes, voice their opinions, and
provide suggestions, report news, and form groups in
Blogosphere. Bloggers have used their blogs to express freely
their ideas and opinions without realizing that they might face
legal liabilities. A number of laws were used especially sedition
law for the investigation, however only some bloggers were
prosecuted because of the inadequacy of the law. This research
will be focused on the difficulties and inadequacy of Sedition law
in governing the bloggers. The findings of this study will
contribute awareness to the respective bodies either in improving
or amending the legislation in the digital era.
Bloggers have used their blogs to express ideas and
opinions without realizing that their statements may subject
them to legal liabilities. The emergence of the digital era has
unintended consequences for race, civil rights, and hate speech
among bloggers. Many laws are enforced against bloggers, for
example Internal Security Act (1960), Official Secrets Act
(1972), Defamation Act (1957), Sedition Act 1948 (Amended
in 1969), Copyright Act 1987 and Copyright (Amendment)
Act 1987, Cyber Laws of Malaysia, Communications and
Multimedia Act (1998)- Content Code & The Printing Presses
and Publications Act (1984). The Multimedia and
Communication Commission of Malaysia had also prepared a
Content Code which described the proper content and
materials allowed to be shown for public viewing. In the
context of the democratic ethos emerging in Malaysian
society, this paper will explore the difficulties in regulating
bloggers using the presence law of sedition in Malaysia.
Keywords- bloggers, blogging, Inadequacy, legislation
I.
INTRODUCTION
The growth of Internet websites offering weblogs continue
to mushroom every day. A weblog or in short a blog is an
online journal containing the personal reflections and
comments provided by the writer i.e., the blogger. The activity
of updating a blog is ‘blogging’ and someone who keeps a
blog is a ‘blogger’. Blogs are typically updated daily using
software that allows people with little or no technical
background to update and maintain the blog. Postings on a
blog are always arranged in chronological order with the most
recent additions featured most prominently.1 The presence of
blogs has created a change in terms of the flow of
communication and how information is obtained, shared and
accessed. 2 In November 2006, Blogging Asia: A Windows
Live Report released by Microsoft's MSN and Windows Live
Online Services Business revealed that 46% or nearly half of
the online population have a blog.3Blogging Asia: A Windows
Live Report was conducted online on the MSN portal across 7
countries in Asia namely Hong Kong, India, Korea, Malaysia,
Singapore, Taiwan and Thailand. Interestingly, the report
The apparent explanation of difficulties is the inadequacy
of the Sedition law leading to shortfall in enforcement on
bloggers. In particular, there is perception that Sedition
legislation has become irrelevant and archaic. This could be
explained by a number of factors. First the Sedition Act was
first introduced by the British to Malaya in 1948 as part of a
set of legal restrictions designed to silence dissent against
colonialism and British rule. Secondly the Sedition Act
restricts freedom of speech and expression for every citizen in
Malaysia. Thirdly Sedition as a concept is largely antithetical
to the underlying premises of modern democracy. Lastly the
Sedition law defeated the purpose of the Multimedia Super
Corridor establishment. Under the MSC Malaysia 10 Point
Bill of Guarantees, the government pledges to "ensure no
Internet censorship".5
II. THE LAW OF SEDITION
The Sedition Act 1948 is derived from the criminal
provisions drafted by Sir James Stephen in 1870 in the then
colonial India. The law’s intention was to curb opposition to
1
www.matisse.net
Abdul Latiff Ahmad, “The Social Reality Of The Malaysian
Blogosphere”, International Journal of Arts & Sciences, ISSN: 19446934 :: 4(3):239-252 (2011)
3
Blogging Phenomenon Sweeps Asia available at
http://www.prnewswire.com/cgi- bin/stories.pl?
ACCT=104&STORY=/www/story/11-28-2006/0004480819&EDATE
accessed 25 January 2007.
2
4
Sabrina Mohamed Hashim 2007 2 CLJ i.
MSC Malaysia 10 Point Bill of Guarantees,
http://www.mscmalaysia.my/topic/MSC+Malaysia+Bill+of+Guarantees.
5
DOI: 10.5176/2251-2853_2.2.114
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.2, April 2013
colonial rule. The law migrated to colonial Malaya in 1948, to
Sabah in 1964 and to Sarawak in 1969. 6 The Federal
Constitution of the Federation of Malaya 1957 and later
Malaysia 1963 permitted Parliament to impose restrictions on
the freedom of speech granted by the Constitution. After the
May 13 Incident, when racial riots in the capital of Kuala
Lumpur led to at least 200 deaths, the government amended
the Constitution to expand the scope of limitations on freedom
of speech.7
The Constitution (Amendment) Act 1971 named Articles
152, 153, and 181, and also Part III of the Constitution as
specially protected, permitting Parliament to pass legislation
that would limit dissent with regard to these provisions
pertaining to the social contract. (The social contract is
essentially a quid pro quo agreement between the Malay and
non-Malay citizens of Malaysia; in return for granting the nonMalays citizenship at independence, symbols of Malay
authority such as the Malay monarchy became national
symbols, and the Malays were granted special economic
privileges.) With this new power, Parliament then amended
the Sedition Act accordingly. Sedition law criminalizes the
expression or publication of words that tend to incite hatred or
contempt against any government or the ruler.
To exite disaffection: This encompasses bringing into
hatred or contempt or exciting disaffection against any
Ruler or against any government, section 3(1) (a).11
•
To attempt alteration otherwise than by lawful
means: This encompasses exciting subjects to attempt
to procure the alteration other than by lawful means of
any matter by law established.12
•
To raise discontent amongst subjects: This covers
the raising of discontent or disaffection among the
subjects or amongst the inhabitants of Malaysia or of
any State, section 3(1) (d).14
•
To promote ill-will and hostility: This consists of
promoting ill-will and hostility between races or
classes of the population.15
•
To question the “sensitive matters”: This
encompasses the questioning of any provisions
dealing with the right, status, position, privilege,
sovereignty or prerogative established or protected by
the Constitution in relation to citizenship, language,
the special position of the Malays and the natives of
Sabah and Sarawak and the sovereignty of the Malay
Rulers, section 3(1)(f).16
Section 3(2) provides certain exceptions, providing
examples of speech which cannot be deemed seditious. It is
not seditious to "show that any Ruler has been misled or
mistaken in any of his measures", nor is it seditious "to point
out errors or defects in the Government or Constitution as by
law established". It is also not seditious "to attempt to procure
by lawful means the alteration of any matter in the territory of
such Government as by law established" or "to point out, with
a view to their removal, any matters producing or having a
tendency to produce feelings of ill-will and enmity between
different races or classes of the population of the Federation".
However, the act explicitly states that any matter covered by
subsection (1) (f), namely those matters pertaining to the
Malaysian social contract, cannot have these exceptions
applied to it.
A person found guilty of sedition may be sentenced to
three years in jail, a RM5, 000 fines, or both. In Malaysia,
various offences are provided for in the Sedition Act 1948
such as it is an offence for any person to print, publish or
distribute any seditious publication.8 Section 2 of the Act links
sedition with a “seditious tendency”. 9 The central notion of
sedition is defined circularly in the Act as anything which,
“when applied or used in respect of any act, speech, words,
publication or other thing qualifies the act, speech, words,
publication or other thing as having seditious tendency.”10 The
section states that any act, speech, words or publication is
seditious if it falls under any of the following:
•
•
Section 3(3) goes on to state that "the intention of the
person charged at the time he did or attempted (a seditious act)
... shall be deemed to be irrelevant if in fact the act had, or
would, if done, have had, or the words, publication or thing
had a seditious tendency". This latter provision has been
criticized for overruling mens rea, a legal principle stating that
a person cannot be guilty of a crime if he did not have the
intent to commit a crime. A person found guilty of sedition
may be sentenced to three years in jail, a RM5, 000 fines, or
both.17
III.
DIFFICULTIES IN REGULATING BLOGGERS
A. Sedition Act conflicts with Human Rights
Article 10(1) of the Malaysian Federal Constitution
guarantees freedom of speech and expression to every citizen.
Malaysians’ rights are protects by this constitution to express
their concern and dissatisfaction by choosing the appropriate
mean of communication which are not threatening the peace
and security of the country. Freedom of expression is one of
the most fundamental rights that individuals enjoy. It is
fundamental to the existence of democracy and the respect of
To excite disaffection against administration of
justice: This encompasses bringing into hatred or
contempt the administration of justice in the country,
section 3(1) (c).13
6
See judgment of N H Chan, J in PP v Param Cumaraswamy [1986] CLJ
(Rep) 606.
7
Rahman, Tunku Abdul (1969). "May 13 - Before and After".
8
Section 4 of the Sedition Act 1948.
9
Section 2 of the Sedition Act 1948.
10
Section 3 of the Sedition Act 1948.
11
PP v Param Cumarasamy [1986] 1 MLJ 518 at 524.
12
Section 3(1) (b) of the Sedition Act 1948.
13
Lim Guan Eng v PP [1998] 3 MLJ 14.
14
PP v Ooi Kee Saik [1971] 2 MLJ 108.
Section 3(1) (e) of the Sedition Act 1948.
Melan bin Abdullah v PP [1971] 2 MLJ 280.
17
Sedition Act 1948, Law of Malaysia.
15
16
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.2, April 2013
human dignity. Freedom of expression is the freedom to speak
without censorship and/or limitation. Freedom of speech has
internalized, people all over the world refers to Article 19 of
the Universal Declaration on Human Rights (UDHR), a
United Nations General Assembly resolution, guarantees the
right to freedom of expression.18 Moreover the use of sedition
law against bloggers is against the freedom of expression
policies.
provisions in Article 10(1). The six specified grounds are (1)
to cause a substantial number of citizens to fear organized
violence against persons or property; (2) to excite disaffection
against the Yang DiPertuan Agong or and Government in the
Federation; (3) to promote feelings of ill-will and hostility
between races or other classes of the population likely to cause
violence; (4) to procure the alteration, otherwise than by
lawful means, of anything by law established; (50 which is
prejudicial to the maintenance or the functioning of any supply
or service to the public in the federation or any part thereof;
and (6) which is prejudicial to public in, or the security of, the
federation or any part thereof.22
The Sedition Act would be unconstitutional, as the
Constitution guarantees freedom of speech, without Article
10(2) of the Constitution, which permits Parliament to enact
"such restrictions as it deems necessary or expedient in the
interest of the security of the Federation or any part thereof,
friendly relations with other countries, public order or morality
and restrictions designed to protect the privileges of
Parliament or of any Legislative Assembly or to provide
against contempt of court, defamation, or incitement to any
offence".
Therefore every law made under Article 149 must contain
the recital prescribed in Article 149(1). The Sedition Act
contains no such recital. Absence of a recital amounts to a
violation of a mandatory procedural requirement. The
alternative approach could be that the absence of a mandatory
recital relegates the Act to the status of an ordinary law under
Article 10 that is bereft of the special scope of Article 149.
Under Article 149(1) subversion action must be taken or
threatened by “any substantial body of persons”.
Article 10(4) also states that "Parliament may pass law
prohibiting the questioning of any matter, right, status,
position, privilege, sovereignty or prerogative established or
protected by the provisions of Part III, article 152, 153 or 181
otherwise than in relation to the implementation thereof as
may be specified in such law".19
C. The terms of “Sedition” and “seditious tendency” are
vague and broadly defined.
The test for restrictions on freedom of expression under
international law requires all such restrictions to be defined
clearly by law. This means that the law should be accessible
and also that it should not be excessively vague. The crime of
sedition, as set out in the Sedition Act, is far too vague to meet
this standard. This is of particular importance given the
criminal nature of these offences and the potential penalty of
imprisonment. Both ‘sedition’ and ‘seditious tendency’ are
loosely defined and subjective words such as ‘hatred’,
‘contempt’, ‘discontent’, ‘feelings of ill-will’ and
‘disaffection’ are used without any definition. It might be
argued that the exceptions to the general rule on sedition
clarify and narrow the scope of the offence.23
These portions of the Constitution have been criticised by
bloggers and advocates, who charge that "under the Malaysian
Constitution, the test is not whether or not the restriction is
necessarily but the much lower standard of whether or not
Parliament deems the restrictions necessary or even expedient.
There is no objective requirement that the restriction actually
is necessary or expedient and the latter standard is much lower
than that of necessity."20 The sedition law is significant preMerdeka restriction on freedom of speech and it was amended
significantly in 1971. Its constitutionality on the touchstone of
Article 4(1) and 162(6) is a necessary task. There is not much
literature on the issue of how far the provisions of the Sedition
Act are within the parameters (broadly defined though they
are) of Article 10 Clause (2), (3) and (4). Sedition Act has
stood the test of time since 1948; it is not immune from
judicial review. Some of its provisions do raise enthralling
issues of constitutionality.21
In fact, they indicate just how broad and undefined the
offence really is. Any rule which needs an exception in favour
of pointing out that the rulers are misled is quite obviously
unacceptably vague. The same is true of the exception in
favour of pointing out errors with a view to remedying them.
Indeed, this narrow exception seems to imply that pointing out
errors for any purpose other than remedying them, for
example for political gain during elections, is not allowed. The
legal elements of sedition are vague, imprecise and ill-defined,
therefore liable to be abused. The United States Supreme
Court has struck down legislation on the basis that it is void
for vagueness and want of certainty. 24 A law is void for
vagueness if it fails to give a person fair notice that certain
conduct is prohibited. Unfortunately, this is a striking feature
of the Sedition Act 1948.
B. Sedition Act and Article 149
Is the Sedition Act a law under Article 149? If the Sedition
Act is an act to combat subversion, then it suffers from a
number of manifest defects. Article 149 provides that any law
designed to stop or prevent the six specified incidents or
circumstances contained in the Article is valid,
notwithstanding that it is inconsistent with any of the
18
UN General Assembly Resolution 217A(III), adopted 10 December
1948.
19
Article 19 Global Campaign for Free Expression (2003).
"Memorandum on Malaysian Sedition Act 1948"
20
Article 19 Global Campaign for Free Expression (2003).
"Memorandum on Malaysian Sedition Act 1948".
21
Prof.Datuk Dr. Shad Saleem Faruqi.“The Law of Sedition in Malaysia,
Seminar on Efficacy of Sedition Act 1948, 26 & 27 September 2011,
AG Chamber, Malaysia.
22
Article 149 of Federal Constitution.
Article 19 Global Campaign for Free Expression (2003).
"Memorandum on Malaysian Sedition Act 1948".
24
Papachristou v City Jacksonville 405 U.S. 156 (1972). Refer “Lawyers
and the Rule of Law on Trial-Sedition in Malaysia
at.http://www.Irwc.org.
23
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.2, April 2013
content which targeted mostly on the religion of Islam and its
support towards apostasy in Malaysia and Singapore. This
case has been submitted for further action to the Attorney
General’s Chambers by Malaysian Communications and
Multimedia Commissions (MCMC) after a complete
investigation.30
Further, it is a fundamental requirement that penal laws
like the Sedition Act contain a mens rea element. With the
dispensation of a fundamental element like mens rea to
establish criminal liability, the Sedition Act violates the
principles of fundamental justice. However unlike in other
laws where a seditious intention is necessary, in Malaysia a
seditious tendency is enough. 25 The entire burden of
determining criminality therefore rests on the shoulder of the
judge.
D. Sedition law against the Multimedia Super Corridor
policy
Malaysia has embarked on an international public relations
campaign to draw technology research and development to its
Multimedia Super Corridor (MSC), a high tech business centre
and communications infrastructure designed to help Malaysia
become an international information technology leader.31 The
grant of MSC Malaysia Status entitles qualified entities to a
set of incentives, rights and privileges from the Government of
Malaysia ("Government"), namely the MSC Malaysia Bill of
Guarantees ("BoGs"). The BoGs reflects the Government's
intention to provide an environment in MSC Malaysia that is
conducive to the development of MSC Malaysia Status
entities. 32 The Bill of Guarantees of the Multimedia Super
Corridor (MSC), an information-technology development
project, promises no censorship of the internet. Developing
Internet infrastructure in Malaysia is a state priority, and
consumers are encouraged to purchase PCs and Internet
access. However the enforcement of sedition law against
bloggers welcomes the violation of MSC Bill of Guarantees.
Under point 7 of the Multimedia Super Corridor (MSC)
Malaysia 10 Point Bill of Guarantees to the international
community, the government promises to ensure no internet
censorship.33
On the ground of “seditious tendency”, throughout 2009
and 2010, a number of bloggers faced legal constraint,
intimidation, fines, and brief periods of detention. No bloggers
were imprisoned at year’s end, though several had charges
pending against them. Bloggers who had been targeted earlier
also continued to face legal proceedings, and some new
charges were issued. Raja Petra, the blogger and Malaysia
Today founder, was charged with sedition and criminal
defamation in 2009 over his writings implicating the prime
minister and his wife in the killing of a Mongolian national.
He left the country halfway through his trial, and warrants
were issued for his arrest. 26 The charges against him were
dropped pending his return to Malaysia. After Raja Petra, the
second blogger who was arrested under Seditions Act in
Malaysia is Abdul Rashid Abu Bakar, whose blog is Penarik
Beca (trishaw peddler). Abdul Rashid was detained for
publishing in his blog a digitally manipulated image of the
police insignia, deemed to be “insulting” to the police force.
Followed by the another famous blogger Syed Azidi Syed
Aziz, the owner of a web blog- Kickdefalla is the third
Malaysian blogger being arrested under the Sedition Act 1948.
Syed is accused for inciting people to fly Malaysian national
flag upside down as a protest against the government. 27
Accordingly, blogger, Bernard Khoo, better known through
his blog, zorro-unmasked.blogspot.com, was investigated
under Section 4 (1) (C) of the Sedition Act due to a posting on
his blog, titled Childish Police Bullying Again, that featured a
heavily modified logo of the Royal Malaysian Police.28 Zakhir
Mohammed, the author of the blog - bigdot.com, which first
suggested the existence of the alleged conspiracy, was
investigated following a slew of reports against him for his
blog entry. He was questioned under the Sedition Act for his
entry "Making Christianity the official religion?" The
allegation was then featured on the front page of Malay daily
Utusan Malaysia.29 In addition, Makcik Hajjah Sitt Al Wuzara
blog is the latest case under the investigation of Sedition law.
‘Makcik Hajjah Sitt Al Wuzara’ had created a blog and a
Facebook webpage that alleged to have elements of menacing
content that may affect the social, religious and political
harmony in Malaysia. The blog allegedly contains abusive
Therefore, politically contentious blogging was clearly
not what the government had in mind when it made this
promise or when it introduced initiatives to encourage
widespread Internet use. It did not, and does not, intend for
the Internet (or any other ICT for that matter) to be used as a
tool to critically discuss or challenge the political, socioeconomic status quo. In other words, attention is focused on
ICTs for socio-economic development as determined and
delineated by a government that tends to control and
constrain domestic media and other forms of communication.
To curb unwelcome critiques of the government and its
programs and policies, bloggers are impelled to practice selfcensorship through the inherent threat or enforcement of a
wide range of restrictive law as sedition will be enforced.
This scenario brings a conflict on the MSC Bill of Guarantees
which promises there will be no internet censorship.
IV.
25
Section 3(3) of the Sedition Act 1948.
Teh Eng Hock, “Raja Petra Can’t Be Tried in Britain,” Star Online,
May26,2010,http://thestar.com.my/news/story.asp?file=/2010/5/26/nation
/6340987&sec=nation.
27
Lee Min Keong, 2007, ZDNet Asia.
28
Marhalim Abas, “Blogger quizzed under Sedition Act,” The Malay
Mail Online, November 5th, 2009
http://www.mmail.com.my/content/18005-blogger-quizzed undersedition-act
29
Himanshu Bhatt, “ Blogger quizzed under Sedition Act,”The Sun, 17
May 2011.
26
NATIONAL HARMONY ACT REPLACES
SEDITION ACT
30
Malaysian Communications And Multimedia Commissions.
See http://www.msc.com.my/msc/msc.asp.
See http://www.mscmalaysia.my/topic/
MSC+Malaysia+Bill+of+Guarantees
33
See http://www.mscmalaysia.my/topic/
MSC+Malaysia+Bill+of+Guarantees
31
32
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.2, April 2013
[1]
Prime Minister Najib Tun Razak announced the repeal of
the Sedition Act in what he said was part of the government’s
continued effort to improve civil liberties. According to him
the 1948 law, which was often used to allegedly silence and
intimidate opposition, is to be replaced with a new National
Harmony Act.34 Najib has instructed Attorney General Abdul
Gani Patail to hold a full public consultation before the new
legislation is drafted to ensure that the views of all Malaysians
are represented. The new National Harmony Act will balance
the right of freedom of expression as enshrined in the
Constitution, while at the same time ensuring that all races and
religions are protected. According to Najib, the new Act
underlines the spirit of harmony and mutual respect that has
been the foundation of the stability and success of Malaysia.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
Many were unhappy with the announcement especially
bloggers who are fighting for freedom of expression. Even
some religious leaders say there is no need for the National
Harmony Act as there are enough provisions in the Penal
Code to deal with sensitive issues.35 However the new law
could be welcomed with hope it will be consistent with the
best international practices and the new act should reflects
substantive transformation which uphold the freedom of
speech in the cyberspace.
[9]
[10]
[11]
[12]
[13]
V.
CONCLUSION
[14]
[15]
With a law like the Sedition Act 1948 actively put to use
despite five decades of independence it is doubtful whether the
law could effectively regulates the bloggers. Sedition law has
severe undemocratic tendencies that need to be improved. The
voice for equal rights and fair treatment by the people has
never been stronger than what we witnessed during the period
leading up to the 2008 general elections especially among
bloggers in the cyberspace. The important fact is equal and
fair enforcement of the law which will improve perception of
people in which this law has been enforced in the last few
decades.
[16]
[17]
[18]
[19]
[20]
By facilitating the open sharing of ideas, information and
perspectives, blogging in Malaysia has the potential to serve
as a democratizing force in a country with little freedom of
expression. Democratic expectations of the local blogosphere
must be tempered, however, with a realistic understanding of
its limitations and of the government’s hegemonic, and
sometimes coercive, mechanisms of control. This paper has
only begun to introduce the difficulties in regulating bloggers
in Malaysia, leaving plenty of room for future research and
analysis.
[21]
[22]
[23]
[24]
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REFERENCES
34
“National Harmony Act to replace Sedition Act”, by Syed Jaymal
Zahiid July 11, 2012. http://www.freemalaysiatoday.com/
35
“Scrap new law to replace Sedition Act”, by G Vinod July 20, 2012.
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.2, April 2013
Rajini Kumar Sreedharam is a Senior Lecturer
at the School of Business, Technology Park
Malaysia College, Malaysia. He obtained his
LL.B (Law) degree from Anglia Ruskin
University UK and his MSc (Corporate
Communication) from University Putra
Malaysia (UPM), Malaysia.
Currently he is pursuing his PhD (Law) at
National University Malaysia. He has 10 years
of teaching experiences at tertiary level in the area of Law and
Communication. His current research interests are on constitutional law
and freedom of expression.
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© 2013 GSTF