The Sedition Act is in fact not an Act of the Parliament of Malaysia but an Ordinance of the pre-Independence Federal Legislative Council. It was enacted in 1948, as a consolidation and enhancement of older state seditious publication enactments, shortly after the declaration of a State of Emergency to combat the alleged Communist insurgency. It was revised in 1970 following the 1969 Declaration of Emergency, and renamed from Ordinance to Act, but it was never substantively enacted by the Parliament. For this reason, its constitutional validity is currently before the courts in the case of legal academic Dr Azmi Sharom, who is charged with sedition for stating his legal opinion about an aspect of the 2009 Perak Constitutional Crisis.
In its unamended form, section 3 of the Sedition Act criminalises speech, publication or sale, distribution, reproduction or importation of a publication having a “tendency” to “bring into hatred or contempt or to excite disaffection” against either the government or the administration of justice, to “raise discontent or disaffection” among Malaysians, or to promote feelings of “ill will and hostility” between the races or classes in Malaysia. The intention of the utterer or publisher is irrelevant (section 3(3)), although there is a defence for innocent possession or publication in section 6. Furthermore, following the 1969 Emergency, an additional clause (s 3(1) (f)) was inserted specifically to penalise the questioning of any of the constitutional provisions protecting what are colloquially referred to as the “sensitive issues”: citizenship, the Malay language, Malay special privileges and the sovereignty and position of the Malay rulers. This provision, in practice, has been used to silence and punish criticism of UMNO’s pro-Malay affirmative action policies, including the New Economic Policy and its successors. Shortly after discussion of the sensitive issues was criminalised, Chief Justice H T Ong expressed the hope that the sub-section dealt with an exceptional and transient situation and would be removed “when the justification no longer exists for banning fair comment on matters of public interest”. Forty-four year later it is apparent that the perceived need to criminalise discussion of “matters of public interest” has become entrenched. The Act does, in fact, attempt to make a distinction between challenging the government on one of the sensitive topics protected by section 3(1)(f), which is always seditious, and pointing out errors in the implementation of policies connected with those sensitive topics, which may be defensible (section 3(2)). However in practice the line is blurred, and those accused of sedition rarely get the benefit of the doubt. Maximum punishment for a first offence is 3 years’ jail, and 5 years for subsequent offences (section 4), and following a conviction, a newspaper that has published seditious content can be suspended for up to a year, and the presses seized by police.
The Act has, of course, been frequently and forcefully criticised by international and Malaysian human rights advocates because the definition of “seditious tendency” is so elusive that the utterer or publisher of virtually any speech the authorities do not like can be investigated and prosecuted, even if not ultimately convicted. This fear of being harassed, fined or imprisoned for what might well be regarded as constitutionally permissible free speech is not hypothetical, and there are far too many instances to list here, but some generalisations can be offered.
The pattern appears to be that in the colonial era, from the Bolshevik Revolution and end of the First World War to Independence (Merdeka) in 1957, sedition was primarily used to quell communist strivings and Malayan anti-colonial resistance. For example, radical Malayan nationalist leader Ahmad Boestaman was convicted in 1947, and newspaper reports indicate more than 40 communist sedition prosecutions in this period.
After Merdeka, and particularly from 1970 and until the late 1980s, the Act appears to have been used most rigorously against UMNO’s critics in the Opposition who were alleged to have raised “sensitive issues”. In other words, sedition’s primary function in Malaysia since the 1920s as a defence against communist and revolutionary propaganda came to be replaced by a mission to prevent scrutiny of and challenges to government policy and, in particular, to criminalise critical discussion of UMNO’s increasingly ethno-supremacist agenda. For example in the early to mid-1970s DAP politicians Ooi Kee Saik, Fan Yew Teng and Oh Keng Seng were prosecuted for speaking about the racially discriminatory and divisive implementation of UMNO’s pro-Malay social and economic policies and were given heavy penalties: Oh, Ooi and Fan were each fined 2,000 ringgit and Fan was disqualified from his parliamentary seat. On the other hand, champions of Malay cultural nationalism prosecuted for remarks that seemed to denigrate Chinese and Indian language rights were given lighter penalties: for example, a sub-editor of the Malay language daily Utusan was fined 1,000 ringgit in 1971, and in 1982 an independent MP was put on a good behaviour bond. Apart from actual prosecutions, a common thread in allegations of sedition is also that critical comment on pro-Malay policies is interpreted by UMNO as racially divisive sedition. For example, when in 1987 a branch of the Malaysian Chinese Association – one of UMNO’s coalition partners – proposed to amend the Sedition Act to criminalise referring to Malaysians of Indian or Chinese heritage as “immigrants” (effectively a racial slur in Malaysia’s polarised politics), UMNO’s then Youth Wing leaders Anwar Ibrahim (now the imprisoned Opposition leader) and Najib Razak (now the Prime Minister) denounced the MCA proposal as “seditious and smacking of communalism”. The prosecution of Bar Council Vice-President Param Cumaraswamy for questioning the decision of the Pardons Board on an ISA matter is also noteworthy in this period.
Throughout the 1990s until the present, a constant justification for the Sedition Act is that it is essential to manage inter-communal tensions – hence the notion that a National Harmony Act might be a gentler substitute. But the pattern of investigations and charges demonstrates clearly that it is used to buttress right-wing Malay policies and politicians, and increasingly, Muslim institutions such as the confident and powerful national and state Islamic bureaucracies, and is almost never deployed to calm hate speech directed at Malaysia’s other ethnic and faith communities. A recent pair of examples will have to suffice: In January this year human rights lawyer Eric Paulsen was arrested (by 20 police), interrogated and charged under the Sedition Act for stating that JAKIM (the National Islamic Development Department) promotes extremism in the texts of its Friday sermons, whereas an UMNO Women’s Wing leader who falsely alleged in the UMNO General Assembly in November 2014 that a Chinese in the state of Kedah had burned a copy of the Quran did not face anywhere the same level of police scrutiny and it appears that she will not be prosecuted.
Importantly, since the abolition of the ISA, sedition investigations and prosecutions have increased sharply. My rough calculations based on media reports yield the following figures. From mid-2012 to the General Election in May 2013 there were 4 police investigations and two sedition charges. After the election and until the end of that year, at least 15 people or organisations were investigated by the police, 11 people were charged or prosecuted, and there was one conviction recorded. During 2014, at least 18 people were investigated by police, 13 people were charged (human rights lawyer and opposition MP N Surendran was charged twice), and three convictions were recorded. In the first four months of 2015 the police have investigated at least 21 people or organisations for sedition, some, like the cartoonist Zunar, are facing multiple charges.
Amanda Whiting is a legal historian at Asian Law Centre, The University of Melbourne. She is writing a history of the Malaysian legal profession, and a separate but related history of sedition in Malaysia. This article is part two of a three part series analysing the Bill to reform the Sedition Act. Part 1 and Part 3 are available HERE and HERE.
 “Chief Justice hopes for removal of amendments to Sedition Act”, Straits Times, 3 November 1971, p 9
 “MCA: We did not question Malay rights”, Straits Times, 6 November 1986, p 8