AMERICAN BAR ASSOCIATION
CENTER FOR HUMAN RIGHTS
WASHINGTON, DC
Report: Malaysia’s Sedition Act Unlawfully Restricts Free Expression
Executive Summary
The American Bar Association Center for Human Rights (Center)1 reviewed Malaysia’s Sedition
Act and found that it infringes upon the right to freedom of expression, as enshrined in
international treaties and norms. The law is also far more restrictive than similar laws in other
Commonwealth countries. The Center analyzed the law in response to concerns that it was being
used to silence government critics, including human rights attorney Eric Paulsen and political
cartoonist Zunar.
As it stands, the Sedition Act does not adequately protect the right to freedom of expression
granted by the Universal Declaration of Human Rights, and is far too broad to meet the
international standards for restrictions on freedom of expression under the International
Covenant on Civil and Political Rights. The law violates the international standard on restrictions
on free expression by not serving a legitimate purpose and instead stifling debate about matters
of public interest, including the conduct of public figures. The United Nations Human Rights
Committee has specifically commented that “[e]xtreme care must be taken” to ensure that
sedition laws are not invoked “to suppress or withhold from the public information of legitimate
public interest that does not harm national security or to prosecute journalists, . . . human rights
defenders, or others, for having disseminated such information.”2
Sedition as an offense originated in the United Kingdom, but the United Kingdom has since
abolished it. A review of other Commonwealth jurisdictions has found that Australia has
followed suit, the United States has no federal sedition law, and the highest courts in Canada,
India, and South Africa have significantly limited the application of their countries’ sedition laws
1
This memorandum was prepared by pro bono counsel on behalf of the Justice Defenders program of the American
Bar Association, Center for Human Rights. The views expressed herein have not been approved by the House of
Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as
representing the policy of the American Bar Association. In addition, this memorandum is intended as background
information. It is not intended as legal advice on a particular case.
2
U.N. Human Rights Comm., General Comment No. 34, Article 19: Freedoms of opinion and expression, ¶ 30 (July
29,
2011)
(hereinafter
“Article
19
Comment”),
available
at
http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf.
1
in ways that ensure those laws would not hinder a citizen’s right to freedom of expression. In
these countries, the crime of sedition requires the offender intend to directly incite individuals to
violence against the state.
About the ABA Center for Human Rights: Through the Justice Defenders Program, we
provide assistance in a range of circumstances, including helping activists and lawyers charged
with crimes in retaliation for their advocacy efforts. We do so through pro bono legal assistance
which includes litigation advice, legal research and drafting, advocacy, and trial observations.
2
AMERICAN BAR ASSOCIATION
CENTER FOR HUMAN RIGHTS
WASHINGTON, DC
MEMORANDUM
To: Interested Persons
From: American Bar Association Center for Human Rights – Justice Defenders Program
Re: International and Comparative Analysis of Malaysia’s Sedition Act of 1948
The American Bar Association Center for Human Rights3 was asked to provide an analysis of
Malaysia’s Sedition Act of 1948 (the “Act” or the “Sedition Act”) under international and
commonwealth freedom of expression standards as they relate to sedition laws. Eric Paulsen is a
human rights lawyer and the executive director of Lawyers for Liberty in Malaysia. Zulkiflee
Bin Sm Anwaraul Haque (Zunar) is a satirical cartoonist, who just won the Committee to Protect
Journalist’s 2015 International Press Freedom Award. 4 Both of these men are facing prison
sentences after being charged under Article 4 of Malaysia’s Sedition Act 1948. According to
widely reported facts, Mr. Paulsen has been charged under Section 4(1)(c) of Malaysia’s
Sedition Act 1948 for sending a message over his Twitter account that criticized the Malaysian
Department of Islamic Development (Jakim). In his message, Mr. Paulsen alleged that Jakim was
promoting extremist interpretations of Islam in its Friday sermons, despite the Government of
Malaysia’s public commitment to combat extremist ideology in Malaysia.5 Zunar is facing nine
3
This memorandum was prepared by pro bono counsel on behalf of the Justice Defenders program of the American
Bar Association, Center for Human Rights. The views expressed herein have not been approved by the House of
Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as
representing the policy of the American Bar Association. In addition, this memorandum is intended as background
information. It is not intended as legal advice on a particular case.
4
See Committee to Protect Journalists, “CPJ International Press Freedom Awards 2015,” https://cpj.org/awards/
(last visited November 20, 2015).
5
The Defense Minister of Malaysia commented that a terrorist attack like the one in Paris could happen in Malaysia.
Paulsen tweeted: “Jakim is promoting extremism every Friday. Govt needs to address that if serious about
extremism in Msia;” See, e.g. The Malaysian Insider, “PAS: Friday sermon an attempt to spread religious hatred,”
http://www.themalaysianinsider.com/malaysia/article/pas-friday-sermon-an-attempt-to-spread-religious-hatred (last
visited March 4, 2015); The Malay Mail Online (reprinted by Spot News), “Only Muslims will help Muslims, Jakim
says in Friday Sermon,” http://www.spotnews.co/malaysia-news/53edad3b4da171bd394680bb (last visited March 4,
2015).
3
charges under the Sedition Act, for nine individual tweets criticizing the Malaysia judiciary after
Anwar Ibrahim’s Federal Court verdict that he sent out over his Twitter account.6
The Act falls well short of Commonwealth and international freedom of expression standards,
particularly due to the law’s extremely broad definition of sedition, complete lack of an intent
requirement, and imprisonment for up to three years for the first offense and up to five years for
subsequent offenses. This memorandum includes (1) an overview of the Sedition Act; (2) a
comparative analysis of sedition law in Commonwealth jurisdictions, including arguments that
have been successful in overturning or limiting such laws in those jurisdictions; and (3) analysis
of the Sedition Act under prevailing international human rights law and norms of freedom of
expression.
Sedition Act of 1948
The Constitution of Malaysia, in Article 10, states that “every citizen has the right to
freedom of speech and expression,” although this right is subject to certain listed restrictions,
including laws “prohibiting the questioning of any matter, right, status, position, privilege,
sovereignty or prerogative.”7 Article 149 of the Constitution could authorize laws that may be in
conflict with Article 10. One such law is the Sedition Act of 1948, which, among other things,
criminalizes “any act” which has a broadly defined “seditious tendency.” 8 However, the Sedition
Act has been constitutionally challenged on the argument that it is not a valid law as it was not
enacted by Parliament, but before Parliament was in existence.9 The Federal Court ruled that
6
See Charge Sheet of Zulkiflee Bin Sm Anwaraul Haque (Zunar); See also Index on Censorship, Zunar: “I Will
never stop. It is my right as a citizen to express my view, October 29, 2015,
https://www.indexoncensorship.org/2015/10/zunar-i-will-never-stop-it-is-my-right-as-a-citizen-to-express-my-view/
7
Constitution, Art. 10 (Malaysia) (2010).
8
Sedition Act 1948, Act 15 (2006) (Malaysia), available at http://www.agc.gov.my/Akta/Vol.%201/Act%2015.pdf.
“Seditious tendency” is defined as a tendency:
(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;
(b) to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to
attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise
than by lawful means, of any matter as by law established;
(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in
Malaysia or in any State;
(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of
any State or amongst the inhabitants of Malaysia or of any State;
(e) to promote feelings of ill will and hostility between different races or classes of the population of
Malaysia; or
(f) to question any matter, right, status, position, privilege, sovereignty or prerogative established or
protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal
Constitution.
Id. § 3(1).
9
Article 149 (“Legislation against subversion, action prejudicial to public order, etc.”) explicitly authorizes laws
notwithstanding Article 10 so long as the legislation recites “that action has been taken or threatened by any
(continued…)
4
Article 162 of the Constitution allowed for the Sedition Act to be considered a validly
constituted law under the Constitution of Malaysia.10
The Sedition Act criminalizes (1) the commission, attempt, or conspiracy to commit “any
act” which has or would have a “seditious tendency”; (2) “utter[ing] any seditious words”; and
(3) printing, publishing, offering for sale, distributing, reproducing, or importing “any seditious
publication.”11 Each of these offenses is punishable by fines and imprisonment for up to three
years for the first offense, and up to five years for a subsequent offense and mere possession of
“any seditious publication” absent a “lawful excuse” is punishable by fines and imprisonment for
up to one and a half to three years.12 The Act also allows the Malaysian government to impose
the following prohibitions for up to one year on newspapers convicted of publishing any matter
having a seditious tendency, with violations subject to fines and imprisonment for up to three
years: (1) prohibiting the future publication of the newspaper; (2) prohibiting the person(s)
convicted from publishing, editing, writing, or assisting with the production of any newspaper;
(3) seizing any printing press used in contravention of the aforementioned prohibitions. 13 It
further allows court orders to prohibit the issuance or circulation of seditious publications and the
surrender to the police of all copies of the publications, with non-compliance subject to fines and
imprisonment for up to one year.14
In addition to these substantive offenses, the Sedition Act includes two notable
procedural elements. First, the Act authorizes arrests without a warrant of any person who
committed, attempted to commit, aided others to commit, or is reasonably suspected of
committing any of the listed offenses.15 And second, the offenses under the Act explicitly lack
any intent requirement, rendering them strict liability offenses because “the intention of the
person charged . . . shall be deemed to be irrelevant if in fact the act had . . . a seditious
tendency.”16
Comparative Analysis of Sedition Law in Commonwealth Jurisdictions
The crime of sedition, which originated in the United Kingdom, is no longer recognized
in that country or several other Commonwealth nations. Courts, legislatures, and law reform
substantial body of persons, whether inside or outside the Federation,” which, among other things, “excite[s]
disaffection against . . . any Government in the Federation,” or “is prejudicial to public order in, or the security of
the Federation or any part thereof.Constitution, Art. 149 (Malaysia) (2010).
10
See The Malay Mail Online, Federal Court rules Sedition Act constitutiona, UM’s Azmi Sharom to stand trial,
http://www.themalaymailonline.com/malaysia/article/federal-court-rules-sedition-act-constitutional-ums-azmisharom-to-stand-tr .
11
Id. § 4.
12
Id.
13
Id. § 9.
14
Id. § 10.
15
Id. § 11.
16
Id. § 3(3).
5
commissions have declared it anachronistic, undemocratic, and an unconstitutional
encroachment on the right to freedom of expression. Where Commonwealth countries do
maintain the crime of sedition, it is limited to situations in which the actor incited the public to
violence against the state. The cumulative weight of authority of so many Commonwealth
countries should be persuasive to Malaysia’s courts.
The Commonwealth jurisprudence described below provides two principal arguments.
The United Kingdom and Australia have abolished their sedition laws, and the United States has
no federal sedition law. In the alternative, Canada, India, and South Africa have each imposed
strong intent requirements on their sedition laws, effectively limiting actionable sedition to the
intent to incite violence against the state. The United Kingdom similarly adopted this intent
requirement prior to fully abolishing its sedition law, and the United States has imposed this
intent requirement on state laws. From these countries, it could be argued that Malaysia should
not only impose a specific intent requirement on the Sedition Act—as opposed to the current
strict liability framework—but also that this requirement should be similarly strong. Modern
statutes and case law from South Africa and Australia also support these two arguments.
Canada
Canada was the first Commonwealth country to severely limit the scope of sedition, in
the 1951 case Boucher v. The King. While the crime of sedition remains in the Canadian
Criminal Code, 17 it has not been used since the Boucher decision. 18 Boucher involved the
seditious libel conviction of a Jehovah’s Witness who distributed leaflets titled “Quebec’s
Burning Hate for God and Christ and Freedom is the Shame of all Canada” that urged the people
17
R.S.C. 1985, c. C-46, § 59-60.
Seditious words 59. (1) Seditious words are words that express a seditious
intention.
Seditious libel (2) A seditious libel is a libel that expresses a seditious intention.
Seditious conspiracy (3) A seditious conspiracy is an agreement between two or
more persons to carry out a seditious intention.
Seditious intention (4) Without limiting the generality of the meaning of the
expression “seditious intention”, every one shall be presumed to have a seditious
intention who (a) teaches or advocates, or (b) publishes or circulates any writing
that advocates, the use, without the authority of law, of force as a means of
accomplishing a governmental change within Canada.
Exception 60. Notwithstanding subsection 59(4), no person shall be deemed to
have a seditious intention by reason only that he intends, in good faith, (a) to
show that Her Majesty has been misled or mistaken in her measures; (b) to point
out errors or defects in (i) the government or constitution of Canada or a
province, (ii) Parliament or the legislature of a province, or (iii) the
administration of justice in Canada; (c) to procure, by lawful means, the
alteration of any matter of government in Canada; or (d) to point out, for the
purpose of removal, matters that produce or tend to produce feelings of hostility
and ill-will between different classes of persons in Canada.
18
Article 19 Global Campaign for Free Expression, “Memorandum on the Malaysian Sedition Act 1948,” July 2003,
p. 7.
6
of Quebec to protest the government.19 The Canadian Supreme Court overturned the conviction,
holding that although the contents of the leaflet were intended to provoke anger and hostility
toward the state, that alone was not sufficient for a charge of sedition. The Court stated, “[a]n
intention to bring the administration of justice into hatred and contempt or exert disaffection
against it is not sedition unless there is also the intention to incite people to violence against it.”20
This is especially relevant when compared to the Sedition Act, which has no intent requirement
and therefore sweeps incredibly broadly. Canada’s law already had an intent requirement prior
to Boucher, 21 but the Canadian Supreme Court nevertheless substantially strengthened it,
leaving the only actionable form of seditious intent as the intent to incite violence against the
state.
Justice Rand’s concurrence in Boucher highlighted the Court’s reasoning behind limiting
the law so significantly that it has not been implemented since. Tracing the history of the crime
of sedition throughout common law, Justice Rand stated that the law came from a time when “we
conceive[d] of the governors of society as superior beings, exercising a divine mandate, by
whom laws, institutions, and administrations are given to men to be obeyed, who are, in short,
beyond criticism, reflection or censure upon them or what they do.” 22 Law’s purpose is to
change as society does, however. Rand stated:
[C]onstitutional conceptions of a different order making rapid
progress in the 19th century have necessitated a modification of the
legal view of public criticism; and the administrators of what we
call democratic government have come to be looked upon as
servants, bound to carry out their duties accountably to the public.
The basic nature of the Common Law lies in its flexible process of
traditional reasoning upon significant social and political matter;
and just as in the 17th century the crime of seditious libel was a
deduction from fundamental conceptions of government, the
substitution of new conceptions, under the same principle of
reasoning, called for new . . . conclusions.23
The Malaysian courts should recognize this same flexibility in their law as they reconsider its
applicability. As Justice Rand stated, “There is no modern authority which holds that the mere
effect of tending to create discontent or disaffection among His Majesty’s subjects or ill will or
hostility between groups of them, but not tending to issue in illegal conduct, constitutes the crime
[of sedition] . . . . Freedom in thought and speech and disagreement in ideas and beliefs, on
every conceivable subject, are of the essence of our life.”24
19
[1951] S.C.R. 265.
20
Id. at 283.
21
See supra note 10.
22
Id. at 285-86 (Rand, J., concurring).
23
Id. at 286, (Rand, J., concurring).
24
Id. at 288, (Rand, J., concurring).
7
United Kingdom
The United Kingdom formally abolished sedition crimes in 2009, with the passage of the
Coroners and Justice Act.25 Section 73 of that statute abolished the common law offenses of
sedition and seditious libel. The relevant language appeared in the first version of the bill, and
the legislative history and debates do not shine any light on Parliament’s reasons for abolishing
sedition.26 But even prior to this statute’s enactment, criminal prosecution for sedition crimes in
the United Kingdom had been rare. In Boucher, Justice Locke quoted Stephen’s History of the
Criminal Law of England as saying that since 1852 “prosecutions for seditious libel have been so
rare in England that they can be said practically to have ceased.”27
The pre-Coroners and Justice Act case of R v. Chief Metropolitan Stipendiary Magistrate,
ex parte Choudhury shows how the United Kingdom had limited the application of its sedition
law even before abolishing it. In Choudhury the High Court in the United Kingdom considered
whether Salman Rushdie’s The Satanic Verses amounted to seditious libel. In finding that it did
not, the court followed Boucher, and stated the high standard that must be met for such a finding:
[T]he seditious intention upon which a prosecution for seditious
libel must be found is an intention to incite violence or to create
public disturbance or disorder against His Majesty or the
institutions of government. Proof of an intention to promote
feelings of ill will and hostility between different classes of
subjects does not alone establish a seditious intention. Not only
must there be proof of an incitement to violence in this connection,
but it must be violence or resistance or defiance for the purpose of
disturbing constituted authority.28
It is important to note that the “different classes of subjects” the court was referring to were
British residents of different religions: “British Muslims who are against the publication of the
book, on the one hand, and on the other, non-Muslim British citizens who are in favour of the
publication of the book on the basis of freedom of opinion or expression.” 29 Therefore, even
before the United Kingdom abolished the crime of sedition altogether, it did not recognize
actions that created division between citizens of different religions to be sedition.
This understanding was not new in the United Kingdom. In justifying its interpretation
that a finding of sedition required more than an intention to incite violence against the state, the
25
Coroners
and
Justice
Act
of
2009,
http://www.legislation.gov.uk/ukpga/2009/25/section/73.
2009,
c.
25,
§
73,
available
at
26
See “Bill documents -- Coroners and Justice Act 2009,” Parliamentary business, last visited Jan. 3, 2016,
http://services.parliament.uk/bills/2008-09/coronersandjustice/documents.html; “Bill stages -- Coroners and Justice
Act 2009,” Parliamentary business, last visited Jan. 3, 2016, http://services.parliament.uk/bills/200809/coronersandjustice/stages.html.
27
[1951] S.C.R. 265, 322, (Locke, J., concurring).
28
[1991] 1 QB 429, 453.
29
Id. at 452.
8
Choudhury court referenced an 1853 publication by Lord Cockburn that criminalized sedition
only for acts aimed at the government, and not for acts aimed at religion. It stated:
Hence the usual objects of the offense (of seditious libel) are the
Sovereign, the Houses of Parliament, the Administrators of Justice,
Public Officers and Departments wielding and representing the
state’s power or dignity. . . . The guild of sedition is often
described of consisting of its tendency to produce public mischief .
. . and so it is. But it is not every sort of mischief that will exhaust
the description of the offense. It must be that sort of mischief that
consists in and arises out of directly and materially obstructing
public authority.30
Paulsen’s tweet was not solely aimed at religion, but at the government’s support of extremist
religion. Regardless, the strict focus of Commonwealth sedition laws against the state and not
religion weighs against Malaysia’s use of the Sedition Act.
United States
While the United States enacted a broad Sedition Act shortly after its founding, 31
members of the executive, legislative, and judicial branches of government all found it to be
unconstitutional. Presidents Jefferson and Madison condemned the Act. Furthermore, President
Jefferson pardoned those who had been convicted under the Act and remitted their fines. 32 In
1840, the U.S. Congress passed a law to ensure repayment of any fines levied under the Sedition
Act on the ground that it was unconstitutional. 33 The 1798 statute never came before the
Supreme Court, but in one of his most famous dissents, Justice Holmes, with Justice Brandeis
joining, stated that the First Amendment had effectively abolished the common law crime of
seditious libel.34 Justice Jackson agreed in a later case.35 The Supreme Court has since declared
that “no court of last resort in this country has ever held, or even suggested, that prosecutions for
libel on the government have any place in the American system of jurisprudence.”36
30
Id. at 452-53.
31
1 Stat. 596. The 1798 statute made it a crime, punishable by a $5,000 fine and five years in prison, if:
[A]ny person shall write, print, utter or publish any false, scandalous and
malicious writing or writings against the government of the United States, or
either house of the Congress, or the President, with intent to defame or bring
them, or either of them, into contempt or disrepute; or to excite against them, or
either or any of them, the hatred of the good people of the United States.
32
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 275 (1964).
33
Id. at 276.
34
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
35
Beauharnais v. Illinois, 343 U.S. 250, 289 (1952) (Jackson, J., dissenting).
36
Sullivan, 376 U.S. at 291.
9
While some state governments have had criminal syndicalism laws that punished
advocacy and assembly against the government, the Supreme Court has severely curtailed the
reach of these laws. In Brandenburg v. Ohio, the Court considered the Ohio Criminal
Syndicalism Act,37 under which a Ku Klux Klan leader was convicted. Finding the Ohio statute
unconstitutional, the Court stated that “the constitutional guarantees of free speech and free press
do not permit a state to forbid or proscribe advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action.”38 Twenty states used to have similar laws to Ohio’s,39
but very few still have them.40 Any state law that does not draw a distinction between “the mere
abstract teaching of the moral propriety or even moral necessity for a resort to force and violence
[and] preparing a group for violent action and steeling it to such action . . . intrudes upon the
freedoms guaranteed by the First and Fourteenth Amendments” and is unconstitutional.41
India
India still has a sedition law in its criminal code, but the Indian Supreme Court has
significantly limited its application.42 In Kedar Nath v. State of Bihar, the Court held that the
sedition law applied only to speech or action that incited violence against the government.43 The
37
The Act prohibited “advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods
of terrorism as a means of accomplishing industrial or political reform” as well as “voluntarily assembling with any
society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” Ohio
Rev. Code Ann. § 2923.13
38
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
39
Id.
40
The states that still have criminal syndicalism laws include Nevada (N.R.S. 203.117), Oklahoma (21 Okl. St. Ann.
§ 1263), and Utah (U.C.A. 1953 § 76-8-902).
41
Brandenburg, 395 U.S. at 448.
42
IPC § 124A:
Sedition. Whoever by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or contempt,
or excites or attempts to excite disaffection towards, the Government established
by law in India, shall be punished with imprisonment for life, to which fine may
be added, or with imprisonment which may extend to three years, to which fine
may be added, or with fine.
Explanation 1 - The expression “disaffection” includes disloyalty and all
feelings of enmity.
Explanation 2 - Comments expressing disapprobation of the measures of the
Government with a view to obtain their alteration by lawful means, without
exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.
Explanation 3 - Comments expressing disapprobation of the administrative or
other action of the Government without exciting or attempting to excite hatred,
contempt or disaffection, do not constitute an offence under this section.
43
Kedar Nath Singh v. State of Bihar, 1962 AIR 955.
10
Indian constitution guarantees and protects freedom of speech and expression—a guarantee
referred to as “the sine qua non of a democratic form of Government” by the Kedar Nath court.
The court saw its responsibility as “drawing a clear line of demarcation between the ambit of a
citizen’s fundamental right guaranteed under Art. 19(1)(2) of the Constitution [guaranteeing the
freedom of speech and expression] and the power of the legislature to impose reasonable
restrictions on that guaranteed right in the interest of, inter alia, security of the State and public
order.”44 The line the court drew, the same one the United States and Canada drew, would save
Paulsen and Zunar from prosecution under those countries’ sedition acts. The Indian Supreme
Court articulated this line as follows: “A citizen has a right to say or write whatever he likes
about the Government, or its measures, by way of criticism or comment, so long as he does not
incite people to violence against the Government established by law or with the intention of
creating public disorder.”45
The Indian Supreme Court has also extended the constitutional protection of freedom of
speech and expression to art that criticizes the state. S Rangarajan v. P Jagjivan & Ors, the
court held that a movie that criticized government policies and operations could not be denied a
certificate for exhibition.46 The Rangarajan court used lofty language in defending the movie
that criticized the caste system, justifying its protection on democratic grounds. The court stated:
The democracy is a Government by the people via open
discussion. The democratic form of government itself demands
[of] its citizens an active and intelligent participation in the affairs
of the community. The public discussion with people participation
is a basic feature and a rational process of democracy which
distinguishes it from all other forms of government. The
democracy can neither work nor prosper unless people go out to
share their views. The truth is that public discussion on issues
relating to administration has positive value.47
India’s broad interpretation of its constitution’s protection of free speech and expression should
serve as a non-Western model for Malaysia. 48
44
Id.
45
Id.
46
S Rangarajan v. P Jagjivan & Ors, 1989 SCR (2) 204.
47
Id.
48
However, while this case law may be helpful in persuading Malaysia’s courts to limit the Sedition Act, it is
important to note that the rest of India’s government has not hewed as tightly to this limitation as would be ideal.
Despite the Supreme Court’s soaring language, recent news reports indicate that sedition charges are still prevalent
in India today. P. D. T. Achary, “Render Sedition Unconstitutional,” The Hindu (Oct. 14, 2015),
http://www.thehindu.com/opinion/lead/sedition-legislation-meant-to-suppress-the-voice-of-indianpeople/article7758013.ece; Shaju Philip, “Youth Slapped With Sedition Charges for Not Standing to National
Anthem, Gets Bail,” Indian Express (Sept. 22, 2014), http://indianexpress.com/article/india/india-others/youthslapped-with-sedition-charges-for-not-standing-to-national-anthem-gets-bail/; Saptarishi Dutta, “Sedition in India: A
(continued…)
11
South Africa
The crime of sedition continues to exist at common law in South Africa, but the country’s
case law on related issues indicates a strong protection of freedom of expression that limits its
scope. 49 In 1992, before the fall of apartheid, the South African Supreme Court stated in a
defamation case that “the general approach properly adopted by our courts [towards defamation
is] that a wide latitude should be allowed in public debate on political matters.”50 South Africa’s
post-apartheid constitution explicitly guarantees freedom of expression and the press, subject to
certain exceptions, one of which is “incitement of imminent violence.” 51 Under the new
constitution, courts have articulated a strong defense for freedom of expression that encompasses
criticism of the state, suggesting that only an intentional incitement of violence would currently
qualify as sedition. In National Media Ltd. v. Bogoshi, the South African Supreme Court stated:
“The success of our constitutional venture depends upon robust criticism of the exercise of
power.”52
Australia
In 2009, Australia amended its sedition laws, renaming that section of the criminal code
“Urging violence and advocating terrorism.” 53 There are four such crimes: “urging violence
against the Constitution etc.”; “urging violence against groups”; “urging violence against
members of groups”; and “advocating terrorism”.54 All of the crimes require the actor both to
intentionally urge the use of force or violence and to intend that the force or violence will occur.
In fact, the Australian Department of the Environment, Water, Heritage and the Arts stated that,
while the country’s previous sedition offenses “were not designed to capture media
commentators, satirists, artists, activists, or other persons acting in good faith when reporting or
criticising the Government’s policies,” the amended law would “provide important clarification
to the operation of the urging violence offences to ensure that legitimate expression is not
captured by these offenses.”55
International Standards of Freedom of Expression
Overview of International Standards
Quick History,” Wall Street Journal (Sept. 14, 2012), http://blogs.wsj.com/indiarealtime/2012/09/14/trivedi-casesets-off-sedition-debate/.
49
Article 19 Global Campaign for Free Expression, “Memorandum on the Malaysian Sedition Act 1948,” July 2003,
p. 8.
50
Argus Printing & Publishing Co. Ltd. v. Inkatha Freedom Party, [1992] ZASCA 63.
51
Constitution of the Republic of South Africa, Ch. 2, Section 16.
52
[1998] ZASCA 94 (quoting Holomisa v. Argus Newspapers Ltd., 1996 (2) SA 558 (W), at 608J-609D).
53
Criminal Code Part 5.1 Section 80.2.
54
Id.
55
“Overview of Proposed Changes to Australia’s Sedition Laws,” Australian Government, Department of the
Environment, Water, Heritage and the Arts (July 2009), http://arts.gov.au/sites/default/files/pdfs/sedition-laws.pdf.
12
Malaysia is a member of the United Nations and therefore bound to respect the rights and
guarantees set out in the Universal Declaration of Human Rights (“UDHR”). Article 19 of the
UDHR states that “[e]veryone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.”56 And Article 29 of the
UDHR states that restrictions on such freedoms must be “determined by law solely for the
purpose of securing due recognition and respect for the rights and freedoms of others and of
meeting the just requirements of morality, public order and the general welfare in a democratic
society.”57 Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”)
contains similar language. 58 These protections have routinely been extended to journalism,
criticism of government, and human rights discourse.59 Under this international standard, any
restriction on the right to freedom of expression must be (1) provided by law; (2) for the purpose
of safeguarding a legitimate public interest; and (3) be necessary to secure that interest. 60
The United Nations Human Rights Committee (“UNHRC”), the body charged with
authoritative interpretation and enforcement of the ICCPR, has commented that “[e]xtreme care
must be taken” to ensure that sedition laws are not invoked “to suppress or withhold from the
public information of legitimate public interest that does not harm national security or to
prosecute journalists, . . . human rights defenders, or others, for having disseminated such
information.”61 In particular, restrictions on the freedom of expression “must not be overbroad,”
especially with regard to the “particularly high” value of “uninhibited expression” in
“circumstances of public debate in a democratic society concerning figures in the public and
56
Universal Declaration of Human Rights, Art. 19, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948), available
at http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf.
57
Id. Art. 29.
58
International Covenant on Civil and Political Rights, Art. 19, Mar. 23, 1976, 999 U.N.Y.S. 171, available at
https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf. Although Malaysia
has not adopted the ICCPR, it has been widely adopted across the globe and therefore represents international norms
of freedom of expression.
59
See, e.g., U.N. Human Rights Committee, Velichkin v. Belarus, U.N. Doc. A/CCPR/C/85/D/1022/2001 (Oct. 20,
2005) (extending freedom of expression to discussion of human rights); U.N. Human Rights Committee, Mavlonov
v. Uzbekistan, U.N. Doc. A/CCPR/C/95/D/1334/2004 (Mar. 19, 2009) (extending freedom of expression to
journalism critical of government); Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt, Comm. No.
323/06 (African Commission on Human and Peoples’ Rights, Mar. 1, 2011) (extending freedom of expression to
journalism related to political protest); U.N. Human Rights Committee, Dissanayake v. Sri Lanka, U.N. Doc.
A/CCPR/C/93/D/1373/2005 (July 22, 2008) (extending freedom of expression to criticism of government).
60
See, e.g., ICCPR Art. 19(3).
61
U.N. Human Rights Comm., General Comment No. 34, Article 19: Freedoms of opinion and expression, ¶ 30
(July
29,
2011)
(hereinafter
“Article
19
Comment”),
available
at
http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf. For example, a “restriction on the issuing of a statement
in support of a labour dispute, including for the convening of a national strike, was not permissible on the grounds of
national security.” Id.
13
political domain.”62 And “the mere fact that forms of expression are considered to be insulting
to a public figure is not sufficient to justify the imposition of penalties” because “all public
figures . . . are legitimately subject to criticism and political opposition,” such that states “should
not prohibit criticism of institutions, such as the army or the administration.” 63 Finally,
restrictions on mass media “may never include a ban on a particular publication unless specific
content, that is not severable, can be legitimately prohibited under Article 19,” and media outlets,
publishers, journalists, websites, and any other such information dissemination system may not
be penalized or prohibited from publishing material “solely on the basis that it may be critical of
the government or the political social system espoused by the government.”64
The U.N. Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression commented that “prison terms are both reprehensible and out of
proportion to the harm suffered by the victim” regarding offenses such as insulting the head of
state or publishing “false” or “alarmist” information.65 “In all such cases, imprisonment for the
peaceful expression of an opinion constitutes a serious violation of human rights.” 66 And the
Special Rapporteur’s report on his 1998 visit to Malaysia specifically noted that Malaysia’s
Sedition Act “fail[s] to offer adequate protection of the right to freedom of opinion and
expression as provided for by applicable international human rights law, including article 19 of
the [UDHR].”67
In addition to these international standards, all three regional human rights instruments
contain similar standards with respect to the protection of freedom of expression. Article 10 of
the European Convention on Human Rights, Article 13 of the American Convention on Human
Rights (“ACHR”), and Article 9 of the African Charter on Human and Peoples’ Rights (“African
Charter”), each contain similar language to Article 19 of the ICCPR.68 The European Court of
62
Id. ¶ 34.
63
Id. ¶ 38.
64
Id. ¶¶ 39, 42–43.
65
Abid Hussain (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and
Expression), Rep. on Protection and Promotion of the Right to Freedom of Opinion and Expression, U.N. Doc.
E/CN.4/2000/63,
¶ 205
(Jan.
18,
2000),
available
at
http://daccess-ddsny.un.org/doc/UNDOC/GEN/G00/102/59/PDF/G0010259.pdf?OpenElement.
66
Id.; see also Abid Hussain, Rep. on Protection and Promotion of the Right to Freedom of Opinion and Expression,
U.N.
Doc.
E/CN.4/1999/64,
¶ 28
(Jan.
29,
1999),
available
at
http://daccess-ddsny.un.org/doc/UNDOC/GEN/G99/107/66/PDF/G9910766.pdf?OpenElement (“The only legitimate purpose
of . . . insult laws is to protect reputations . . . these laws should never be used to prevent criticism of government or
even for such reasons as maintaining public order for which specific incitement laws exist[.]”).
67
Abid Hussain, Rep. on the Mission to Malaysia, U.N. Doc. E/CN.4/1999/64/Add.1, ¶ 66 (Dec. 23, 1998),
available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G98/052/96/PDF/G9805296.pdf?OpenElement
68
See
European
Convention
on
Human
Rights
Art.
10,
available
at
http://www.echr.coe.int/Documents/Convention_ENG.pdf; American Convention on Human Rights Art. 13,
available at http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.pdf; African Charter
(continued…)
14
Human Rights (“ECHR”) has held that “freedom of political debate is at the very core of the
concept of a democratic society” such that “[t]he limits of acceptable criticism are, accordingly,
wider as regards a politician as such than as regards a private individual.”69 The Inter-American
Commission on Human Rights issued a report noting that desacato laws (laws against insulting,
threatening, or injuring public officials) are incompatible with Article 13 of the ACHR because
they fail to meet the principle of necessity and do not pursue legitimate ends.70 Finally, the
African Commission on Human and Peoples’ Rights adopted a declaration stating that
“[f]reedom of expression should not be restricted on public order or national security grounds
unless there is a real risk of harm to a legitimate interest and there is a close causal link between
the risk of harm and the expression,”71 and has called for the repeal of “insult laws which impede
freedom of speech” across Africa.72
The UNHRC has commented—with respect to the related offense of criminal
defamation—that “imprisonment is never an appropriate penalty” under Article 19 of the
ICCPR. 73 In addition, each of the regional human rights courts have held that prison terms
violate the applicable human rights instruments described above when imposed for crimes that
infringe on the freedom of expression, such as criminal defamation and sedition laws.
In Cumpănă & Mazăre v. Romania, two Romanian journalists that published a newspaper
article and accompanying cartoon critical of a former deputy mayor and judge were charged with
criminal defamation and insult.74 They were convicted of both crimes and sentenced to seven
months in prison, fined, and prohibited from working as journalists for one year following their
prison sentences.75 The ECHR found that the publication was “indisputably a matter of general
interest to the local community which the applicants were entitled to bring to the public’s
attention through the press,”76 and held that “the imposition of a prison sentence for a press
offence will be compatible with journalists’ freedom of expression as guaranteed by Article 10 of
on
Human
and
Peoples’
Rights
Art.
9(2),
http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf.
69
June
27,
1981,
available
at
Lingens v. Austria, 8 Eur. Ct. H.R. (ser. A) at 103 (1986).
70
Inter-American Commission on Human Rights, Annual Report 1994, Rep. on the Compatibility of ‘Desacato’
Laws with the American Convention on Human Rights, OEA/Ser.L/V/II.88, Doc. 9 rev. (1995), available at
http://cidh.oas.org/annualrep/94eng/chap.5.htm.
71
African Comm’n on Human and Peoples’ Rights, Declaration of Principles on Freedom of Expression in Africa
(2002),
ACHPR/Res.62(XXXXII)02,
available
at
http://www.achpr.org/files/sessions/32nd/resolutions/62/achpr32_freedom_of_expression_eng.pdf.
72
African Comm’n on Human and Peoples’ Rights, Resolution on Repealing Criminal Defamation Laws in Africa
(Nov. 24, 2010), Res. 169, available at http://www.achpr.org/sessions/48th/resolutions/169/.
73
Article 19 Comment ¶ 47.
74
Cumpănă & Mazăre v. Romania, App. No. 33348/96, Eur. Ct. H.R., ¶¶ 19–21 (Dec. 17, 2004), available at
http://hudoc.echr.coe.int/eng?i=001-67816.
75
Id. ¶ 37.
76
Id. ¶ 95.
15
the Convention only in exceptional circumstances, notably where other fundamental rights have
been seriously impaired, as, for example, in the case of hate speech or incitement to violence.”77
Applying this standard, the ECHR held that although the journalists were properly convicted of
the crimes charged, the sanctions imposed violated Article 10.78 This was particularly so with
regard to the prison sentence, for which there was “no justification whatsoever” for such a
sanction which “by its very nature, will inevitably have a chilling effect.”79 . The case supports
the notion that prison sentences for sedition—particularly for up to three years under the
Malaysian Sedition Act, as opposed to the seven-month sentence in Cumpănă—violate
international human rights principles even if the defendants are liable for the underlying
substantive offenses.
The Inter-American Court of Human Rights (“IACHR”) has similarly held that
imprisonment is not a valid sanction for statements of opinion regarding public officials. In
Kimel v. Argentina, an Argentinian journalist was convicted of criminal defamation for the
publication of a book that was critical of judicial conduct during the investigation of murders
committed during a military dictatorship more than a decade prior. 80 The journalist was
substantially fined and sentenced to a one-year suspended imprisonment term.81 The IACHR
found that this punishment was excessive in violation of Article 13 of the ACHR.82 In doing so,
the court cited Cumpănă,83 and noted that “an opinion cannot be subjected to sanctions, even
more so where it is a value judgment on the actions of a public official in the performance of his
duties,” such that the excessive fine and prison term was “overtly disproportionate” to the
charged conduct. 84 Thus, under IACHR principles, Paulsen and Zunar cannot be subject to
criminal sanctions, especially imprisonment, for their expressions of opinion that are critical of
the judiciary or other government officials.
Finally, in Lohé Issa Konaté v. Burkina Faso, the African Court on Human and Peoples’
Rights (“ACHPR”) addressed a criminal prosecution for, among other charges, public insult,
against a journalist for articles critical of public officials. 85 The court imposed sanctions of
77
Id. ¶ 115.
78
Id. ¶ 110, 122.
79
Id. ¶ 116.
80
Kimel v. Argentina, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 177, ¶¶ 41–42 (May 2, 2008).
81
Id. ¶ 45.
82
Id. ¶ 13.
83
Id. ¶ 78 n.57.
84
Id. ¶¶ 93–94. See also Palamara-Iribarne v. Chile, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C)
No. 135, ¶¶ 88, 95 (Nov. 22, 2005) (Imprisonment for a minimum of sixty-one days for criticism of the Navy
violated Article 13 because the “sanctions . . . were disproportionate to the criticism leveled at government
institutions and their members, thus suppressing debate, which is essential for the functioning of a truly democratic
system, and unnecessarily restricting the right to freedom of thought and expression.”).
85
Lohé Issa Konaté v. Burkina Faso, App. No. 004/2013, Afr. Ct. H.P.R., ¶¶ 3–4 (Dec. 17, 2014), available at
http://www.ijrcenter.org/wp-content/uploads/2015/02/Konate-Decision-English.pdf.
16
twelve months imprisonment, substantial fines and civil damages, and a ban on the publication of
the newspaper at issue for six months.86 The ACHPR held that the conviction violated Article 9
of the African Charter and Article 19 of the ICCPR.87 In so doing, the court noted that the state
“failed to show how a penalty of imprisonment was a necessary limitation to freedom of
expression in order to protect the rights and reputation of members of the judiciary,” and that
prison terms imposed pursuant to the relevant statutes were “a disproportionate interference in
the exercise of the freedom of expression by journalists in general and especially in the
Applicant’s capacity as a journalist.”88
Analysis of “Seditious Tendency” and Lack of Intent Under International Norms
The Sedition Act is grossly out of step with international norms in several respects, but
this memorandum will focus specifically on the Act’s broad definition of “seditious tendency”
and its lack of any intent requirement. Paulsen is a lawyer charged under the Sedition Act for
tweets critical of portions of the Malaysian government for promoting extremist interpretations
of Islam in contrast to the government’s public commitment to combat such extremist
ideologies.89 Zunar is a political cartoonist charged under the Sedition Act for tweets critical of
the judiciary in Malaysia.90
The Sedition Act criminalizes any speech (or other act, attempt, or conspiracy) which has
a “seditious tendency.” As relevant here, seditious tendency is defined to include a tendency “to
bring into hatred or contempt or to excite disaffection against any Ruler or against any
Government . . . [or] against the administration of justice in Malaysia or in any State” or “to
question any matter, right, status, position, privilege, sovereignty or prerogative established or
protected by” listed sections of the Malaysian Constitution relating to citizenship and the
sovereignty and immunity of Malaysian government officials. In addition, the Sedition Act
expressly states that the defendant’s intent is “irrelevant.”91 These aspects render the Sedition
86
Id. ¶¶ 5–6.
87
Id. ¶ 176.
88
Id. ¶¶ 163–64.
89
Paulsen’s January 9, 2015 tweet stated: “Jakim is promoting extremism every Friday. Govt needs to address that
if serious about extremism in Msia.”
90
S See Charge Sheet of Zulkiflee Bin Sm Anwaraul Haque (Zunar); See also Index on Censorship, Zunar: “I Will
never stop. It is my right as a citizen to express my view, October 29, 2015,
https://www.indexoncensorship.org/2015/10/zunar-i-will-never-stop-it-is-my-right-as-a-citizen-to-express-my-view/
91
Sedition Act § 3(3). The Act includes a limited defense wherein speech may not be deemed seditious “by reason
only that” it tends to show that (1) “any Ruler has been misled or mistaken in any of his measures”; (2) “point out
errors or defects in any Government or constitution . . . or in legislation or in the administration of justice with a
view to the remedying of the errors or defects”; or (3) to persuade citizens “to attempt to procure by lawful means
the alteration of any matter”; or (4) “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.” Sedition Act § 3(2). Other
than the first defense listed above, however, none of the defenses apply to offenses which “question any matter,
right, status, position, privilege, sovereignty or prerogative” of the government provided for by certain sections of
the Constitution, which renders the defense toothless because it mostly does not apply to this broad catch-all offense.
17
Act grossly overbroad such that it fails to meet any of the three requisite conditions for a
restriction on freedom of expression and thus violates Malaysia’s obligations under international
law.
Provided By Law
Under the international human rights standards discussed above, restrictions on freedom
of expression must be provided by law. Although the Sedition Act is a statute enacted pursuant
to a constitutional grant of authority that alone does not satisfy the international requirement that
the Act’s restrictions must be provided by law. In order for a restriction to be provided by law, it
“must be formulated with sufficient precision to enable an individual to regulate his or her
conduct accordingly” and “may not confer unfettered discretion for the restriction of freedom of
expression on those charged with its execution.”92 The IACHR decision in Usón Ramírez v.
Venezuela illustrates the operation of the “provided by law” requirement. 93 A retired public
official was convicted and sentenced to five years and six months imprisonment for “slander
against the National Armed Forces” based on statements he made during a television interview.94
The court found that the legality principle requires criminal laws “to use strict and unequivocal
terms, clearly restricting any punishable behaviors,” which “involves a clear definition of the
incriminatory behavior, setting its elements, and defining the behaviors that are not punishable or
the illicit behaviors that can be punishable with non-criminal measures.”95 The court held that
the law at issue did not “establish the elements that may offend, slander, or disparage” and did
not “specify whether it is important that the active subject attribute facts that damage the honor
or whether it suffices simply to give an offensive or disparaging opinion, without attributing any
illicit acts, for example, for the imputation of the crime.”96 This “ambiguity . . . raises doubts
and opens possibilities for the abuse of discretion,” and the law was therefore “too vague and
ambiguous in its formulation to comply with the legality requirements” of Article 13 of the
ACHR.97
The gross overbreadth of the Sedition Act, and particularly the term “seditious tendency,”
renders the Act far too vague to enable individuals to conform their conduct to the law, and
92
Article 19 Comment ¶ 25. Relatedly, Articles 14 and 15 of the ICCPR provide certain fair trial rights, including
the right to be presumed innocent and the right to be informed of the charge, both of which are potentially
implicated here due to the vagueness of the Sedition Act. ICCPR Art. 14–15. According to the U.N. Human Rights
Committee, the right to be informed “applies to all cases of criminal charges, including those of persons not in
detention,” such as Paulsen and Zunar. General Comment No. 13 (Art. 14), United Nations Compilation of General
Comments, ¶ 8.
93
Usón Ramírez v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C)
No. 207 (Nov. 20, 2009).
94
Id. ¶¶ 37–38.
95
Id. ¶ 55.
96
Id. ¶ 56.
97
Id. ¶¶ 56–57; see also Kimel, ¶¶ 63–67 (Criminal defamation prosecution in which the court “did not adhere to the
original criminal definition applied” violated Article 13 of the ACHR because criminal laws “must be formulated
previously, in an express, accurate, and restrictive manner.”).
18
therefore fails the provided by law requirement. The definition of “seditious tendency” includes
vague, subjective, and undefined terms such as “hatred,” “contempt,” “disaffection,” and
“feelings of ill will and enmity.” Thus, neither Paulsen nor Zunar are able to “ascertain what
sorts of expression are properly restricted and what sorts are not” under the Sedition Act, in
violation of international norms.98 As in Usón Ramírez, even though the Sedition Act is an
enacted statute, the ambiguity of these terms does not satisfy the provided by law requirement
under international standards.
Legitimate Purpose
Restrictions on freedom of expression “must be applied only for those purposes for which
they were prescribed and must be directly related to the specific need on which they are
predicated.”99 As relevant to the Sedition Act, the only potentially legitimate purposes under
international norms are national security and public order. Paulsen and Zunar are both being
charged under § 4(1)(c) of the Sedition Act for printing, publishing, or distributing “any seditious
publication.”100 In Paulsen’s case, the “seditious tendency” most likely derives from charges that
his tweet would tend to “bring into hatred or contempt or to excite disaffection” against the
Malaysian government or questions a “matter” or “prerogative” of the Constitution. In Zunar’s
case, the “seditious tendency” most likely derives from charges that his tweets would tend to do
the same with regard to the judiciary and its relationship to the government.
There is little to no logical connection between “bringing [the Malaysian government]
into hatred or contempt” and national security or public order. And the link is even more
tenuous with respect to the prohibition on questioning “any matter” regarding, for instance, the
sovereignty of the Malaysian government. Paulsen and Zunar are therefore being prosecuted
“solely on the basis” of speech that “may be critical of the government or the political social
system espoused by the government,” in violation of Article 19 of the ICCPR and several other
international human rights instruments. As the Inter-American Commission on Human Rights
has explained in reference to desacato laws that—like the Sedition Act—are ostensibly intended
to protect public order, such laws often have the opposite effect:
Finally and most importantly, the Commission notes that the
rationale behind desacato laws reverses the principle that a
properly functioning democracy is indeed the greatest guarantee of
public order. These laws pretend to preserve public order precisely
by restricting a fundamental human right which is recognized
internationally as a cornerstone upon which democratic society
rests. Desacato laws, when applied, have a direct impact on the
open and rigorous debate about public policy that Article 13 [of the
ACHR] guarantees and which is essential to the existence of a
democratic society. In this respect, invoking the concept of
98
Article 19 Comment ¶ 25.
99
Article 19 Comment ¶ 22.
100
See Charge Sheet for Eric Paulsen; See Charge Sheet for See Charge Sheet of Zulkiflee Bin Sm Anwaraul Haque
(Zunar).
19
“public order” to justify desacato laws directly inverts the logic
underlying the guarantee of freedom of expression and thought
guaranteed in the Convention.101
The U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression has expressed similar concerns with the use of national security to justify
limitations on the freedom of expression, “The use of an amorphous concept of national security
to justify invasive limitations on the enjoyment of human rights is of serious concern. The
concept is broadly defined and is thus vulnerable to manipulation by the State as a means of
justifying actions that target vulnerable groups such as human rights defenders, journalists or
activists.”102
As applied to Paulsen and Zunar, the Sedition Act effectively stifles “open and rigorous
debate about public policy,” specifically the religious extremist tendencies of certain portions of
the Malaysian government and judicial corruption, thus undermining the public order it is
intended to preserve. Particularly given the threat of imprisonment for up to three years per
violation (up to five years for subsequent offenses) for their peaceful expressions of opinion, the
prosecution of Paulsen and Zunar is a serious violation of their human rights under international
norms. Under these international principles, references in the Malaysian Constitution to national
security and public order as justifications for laws such as the Sedition Act do not suffice to meet
the legitimate purpose requirement.
Necessity
The final prong requires that restrictions on the freedom of expression “must be
‘necessary’” for the achievement of the legitimate purpose, and “must not be overbroad.”103 This
is particularly so with regard to the matters of public debate, such as those that are at issue here.
The broad definition of “seditious tendency” clearly violates the international human rights
principle that restrictions on freedom of expression must be “necessary” in democratic society,
proportional to the harm caused, and not overbroad relative to the objectives of the restriction.
“Seditious tendency” is broadly defined to apply to “any Ruler,” “any Government,” and the
questioning of “any matter” in the Constitution regarding citizenship or government sovereignty,
among others. 104 Nor are the penalties under the Act proportional to the harms caused, as
peaceful expressions of opinion by individuals such as Paulsen and Zunar are subject to arrests
without warrants, imprisonment for up to three years for the first violation and up to five years
101
Inter-American Commission on Human Rights, Report on the Compatibility of “Desacato” Laws With the
American Convention of Human Rights, Chapter 5, available at http://cidh.oas.org/annualrep/94eng/chap.5.htm.
102
Frank La Rue (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and
Expression), Rep. on the Promotion and Protection of the Right to Freedom of Opinion and Expression, U.N. Doc.
A/HRC/23/40,
¶ 60
(Apr.
17,
2013),
available
at
http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf.
103
Article 19 Comment ¶¶ 33–34.
104
See supra note 3.
20
for subsequent violations, excessive fines, and the restriction or banning of any publication that
publishes their content.
The principle of necessity is illustrated by the ECHR’s decision in Cumpănă, which as
described above involved a seven-month prison sentence, substantial fines, and a prohibition
from working as journalists for one year against two Romanian journalists for criminal
defamation and insult offenses.105 In determining that the “domestic courts in the instant case
went beyond what would have amounted to a ‘necessary’ restriction on the applicants’ freedom
of expression,” the court found that these sanctions were “undoubtedly very severe.” 106 The
court emphasized “the chilling effect that the fear of such sanctions has on the exercise of
journalistic freedom of expression,” which “works to the detriment of society as a whole” and is
“a factor which goes to the proportionality, and thus the justification, of the sanctions
imposed.”107 The court found that in the context “of a debate on a matter of legitimate public
interest,” there was “no justification whatsoever for the imposition of a prison sentence,” and that
the one-year ban from working as journalists “was particularly severe and could not in any
circumstances have been justified by the mere risk of the applicants’ reoffending,” “was not
justified by the nature of the offences,” and further “contravened the principle that the press must
be able to perform the role of a public watchdog in a democratic society.” 108 Cumpănă is
therefore particularly applicable to Paulsen and Zunar’s cases under the Sedition Act, which
similarly allows for sanctions that include imprisonment, substantial fines, and prohibitions from
working as journalists. 109 Thus, the criminal prosecution of Paulsen and Zunar under the
Sedition Act, which could lead to sanctions even more severe than those in Cumpănă, clearly
violates the necessity principle under international legal standards.110
Finally, the Sedition Act is a strict liability statute, as it expressly renders the defendant’s
intent irrelevant to liability. Paulsen and Zunar may therefore be convicted under the Act even if
their sole intention was to, for instance, show that the government’s policies are “mistaken,” as
provided for under the Act. Because their intent is irrelevant, if individuals happen to feel
contempt for the Malaysian government as a result of tweets, Paulsen and Zunar may be liable
under the Act regardless of their intentions. This independently renders the Sedition Act
105
See supra notes 67–68 and accompanying text.
106
Cumpănă, ¶¶ 112, 121.
107
Id. ¶ 114.
108
Id. ¶¶ 116–19.
109
See supra note 6 and accompanying text.
110
See also Konaté, ¶¶ 163, 165 (“In essence, the Court notes that, for now, defamation is an offense punishable by
imprisonment in the legislation of the Respondent State, and that the latter failed to show how a penalty of
imprisonment was a necessary limitation to freedom of expression in order to protect the rights and reputation of
members of the judiciary. . . . Apart from serious and very exceptional circumstances for example, incitement to
international crimes, public incitement to hatred, discrimination or violence or threats against a person or a group of
people, because of specific criteria such as race, colour, religion or nationality, the Court is of the view that the
violations of laws on freedom of speech and the press cannot be sanctioned by custodial sentences, without going
contrary to the above [international law] provisions.”).
21
overbroad and further violates the UNHRC principle that the “mere fact that forms of expression
are considered to be insulting to a public figure is not sufficient to justify the imposition of
penalties.”111 In finding that a Venezuelan statute violated Article 13 of the ACHR, the IACHR
in Usón Ramírez noted that the statute imposed liability “even when the active subject did not
have the intent to injure, offend, or disparage the passive subject.” 112 The Sedition Act is
similarly invalid here on the independent ground that Paulsen and Zunar may be criminally liable
under the Act regardless of their intent.
Conclusion
Malaysia’s Sedition Act is far more onerous than international norms proscribe and
fellow Commonwealth countries currently employ. Sedition as an offense originated in the
United Kingdom, but the United Kingdom has since abolished it. Australia has followed suit, the
United States has no federal sedition law, and the highest courts in Canada, India, and South
Africa have significantly limited the application of their countries’ sedition laws in ways that
ensure those laws would not apply to Paulsen and Zunar’s conduct. As it stands, the Sedition
Act does not adequately protect the freedom of expression granted by the UDHR, and is far too
broad to meet the international standards for restrictions on freedom of expression under the
ICCPR.
111
Article 19 Comment ¶ 38.
112
Usón Ramírez, ¶ 56.
22