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2008-05-01

Understanding the Exceptions of Sedition Act

Since we are entering into the new political arena, we notice that some segments of our community, especially those who are fixed with outdated and narrow mindset, are still waving the flag of Sedition Act, 1948 to prevent an open discussion on sensitive issues. They are in an overzealous mood of lodging police report against Malaysians who wish to make a breakthrough of what appear to be a deadlock on certain issues, such as equality among races and freedom of religious. At the same time, some Malaysians are not keen to speak out for fear that they may be whacked with the offences of Sedition Act.

As such, I have done a summary of offences under the Sedition Act and listed out what constitute a seditious tendency act, speech and word. As one can conclude, it is a matter of how one is to frame his/her sentence to avoid being entangled into the trap of Sedition Act.


The Summary of Offences under the Sediton Act 1948

1. Principally, section 3(1) of the Act spells out the following act, speech or words deemed having seditious tendency:-

a. bring hatred against Government (means Federal or State) or against any Ruler (means Yang di-Pertuan Agong, Ruler or Governor of any State);

b. excite someone to bring unlawful alteration of the Government or Rulers;

c. bring hatred against the administration of Justice;

d. raise discontent or dissatisfaction amongst the subjects of the King and Rulers or among the inhabitants of Malaysia;

e. promote feeling of ill-will and hostility between different races; or

f. question right, status, position, privilege or prerogative protected by Part III (Citizenship), Art. 152 (National Language and learning of other languages), Art. 153 (Reservation of quotas pertaining to services, permit etc for Malay and natives of Sabah and Sarawak), and Art. 181 (Rulers’ sovereignty) of the Federal Constitution.

2. However, there are exceptions as defined under section 3(2) of the Act. The following act, speech or words shall not be deemed seditious:-

a. show any Ruler has been misled or mistaken in his measures;

b. point out errors or defects committed by the Government, the legislation or the administration of justice with a view to remedying such errors or defects. However, one can only question the implementation aspects of Part III, Art.152, 153 and 181 of the Federal Constitution, but cannot question the existence of such rights and position.

c. except for matters under Part III, Art.152, 153 and 181, point out, with a view to their removal, any matters having a tendency to produce feeling of ill-will between different races. This also includes using lawful mean to persuade an alteration of Government.

3. Once it is proved that the words used have a seditious tendency, intention of the accused is irrelevant (section 3((3) of the Act).

4. Penalty for the offences committed under the Act is fine not exceeding RM5,000 or imprisonment not exceeding 3 years or both (section 4(1) of the Act).

5. Prosecution shall only be made with the written consent of the Public Prosecutor (section 5(1) of the Act).


Some cases that brought or arguments that raised under the Sedition Act, 1948:

(i) Majlis Peguam Malaysia & Ors v Raja Sekaran Krishnan & Other (2004) 4 CLJ 239

Extraordinary General Meeting of Bar Council: Resolution to discuss allegations of impropriety made against then Chief Justice. Whether contemptuous and constituted offences under Sedition Act 1948?

Held: the convening of the EGM and the adoption of the proposed resolution would clearly constitute an offence under s. 3(1)(c) and 4(1)(a) of the Sedition Act 1948.

(ii) Lim Guan Eng v PP (1998) 3 CLJ 769

Uttering seditious words: Allegation that Malaysia had double-standard laws, that Attorney General had not prosecuted a 'criminal' and that the court had detained an innocent girl - Whether gave rise to seditious tendency?

Held: To allege double standards against the public prosecutor in deciding which cases ought to be brought before the courts amounts to denigrating and undermining the administration of criminal justice. An offence under Sedition Act.

(iii) PP v Param Cumaraswamy [1986] CLJ 606 (Rep)

Open appeal by way of newspaper statement to Pardons Board - The statement: “What is disturbing and will be a source of concern to the people is the manner in which the Pardons Boards exercises its prerogative”.
- Whether likely to create disaffection against Ruler?

Held: There was no tendency in the words to create antagonism, enmity and disloyalty among the people.

(iv) PP v Fan Yew Teng (1975)

The accused is charged with an offence under section 4(1)(c) of the Sedition Act for publishing a seditious publication namely, an article under the caption "Alliance Policy of Segregation `Evidence Galore' listed by Dr. Ooi". Whether the article gave rise to seditious tendency?
Held: The speech read as a whole, has gone beyond what is sanctioned by law and has in fact a seditious tendency.

(v) Mark Koding v PP [1982]

The Accused, a Member of Parliament, is charged under Sedition Act for uttering seditious words: “Keadaan eksklusif dalam negara kita di masa ini adalah hasil daripada baik hati kaum bumiputra membiarkan sekolah-sekolah China dan India menggunakan bahasa mereka selepas Merdeka”.

Held: Accused guilty as charged.

(vi) Melan Bin Abdullah & Anor v PP (1971)

The Utusan Melayu newspaper published a report of a talk reads: "Abolish Tamil or Chinese medium schools in this country". Sanction for their prosecution was given under s. 5(1) of the Sedition Act.

Held: It comes squarely within the definition of "seditious tendency" as extended by para. (f).


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