How the British scrapped their sedition laws

This statement follows the United Kingdom & Eire Malaysian Law Students’ Union (KPUM)’s recent statement in response to the Sedition (Amendment) Bill 2015 recently tabled and passed in the Dewan Rakyat to strengthen the Sedition Act 1948.

As many would have known, the Sedition Act 1948 is a pre-merdeka British enactment aimed to control dissenters and to strengthen their political grip in Malaya during a period when the spirit of nationalism was rising high among the people. However, sedition laws were nothing new even back then. Its roots could be traced deep within the age-old English common law.

In fact, English sedition laws were not repealed until recently in 2009, when the British Parliament voted to do away with them altogether.

Therefore, as Malaysian law students reading English law, the Union feels that it is its duty to educate the Malaysian public on sedition laws, its British origins and how the British came to terms with abolishing it.

Sedition, or seditious libel as it is here, was a common law (case law) criminal offence in the UK – just like most criminal offences such as murder and theft – and unlike Malaysia where most criminal offences are codified within statutes such as the Penal Code or the Sedition Act itself.

The common law principles of seditious libel evolved from the Britain’s oldest laws such as the Statute of Westminster 1275, when Kings were divine and the feudal society could not be questioned.

The case establishing the principles of seditious libel was the Star Chamber case De Libellis Famosis of 1606. This was where it was first established that for the crime of sedition, truth was no defence and intention was irrelevant as was whether there was any actual harm done, which is still the cornerstone of the principles of sedition in modern day Malaysia 409 years later today.

The punishment back then include imprisonment and the loss of the offender’s ears. British sedition laws were extensively used in the eighteenth and nineteenth centuries, most notably against John Wilkes, who was a radical MP and civil rights activist who bravely challenged the extent of freedom of speech and media freedom in Britain at that time through his publication North Briton, but it was eventually declared seditious by parliament and was publicly burned.

Deemed ill defined, unnecessary

A more contemporary and widely-cited definition of sedition can be found in Article 114 of Stephen’s Digest of the Criminal Law, where it bears an almost identical wording as section 3 of our Sedition Act 1948, except where the requirement of seditious intent is surprisingly found within this “revised” version of English sedition.

At least defences were made available to the defendants to prove that they did not intend to cause hatred or contempt.

The offence of seditious libel remained largely unused for the most of the twentieth century as British democracy liberalised. The 1970s was the last time prosecutions were ever made for this offence, in which the offenders either had their sentence suspended or were conditionally discharged.

In 1977, the Law Commission expressed its view that the common law offence of sedition was ill defined and unnecessary. Lord Denning, in his 1984 book Landmarks in the Law, extrajudicially wrote that the definition of sedition was “found to be too wide.

It would restrict too much the full and free discussion of public affairs…So it has fallen into disuse for nearly 150 years”, accurately summarizing the redundant and inappropriate nature of the offence as an established consensus for over a generation.

In March 2009, amendments to the Coroners & Justice Bill were tabled in the House of Commons by Evan Harris MP, and then again in the House of Lords by Lord Lester of Herne Hill, before the government eventually accepted the case for abolition and promised to get rid of the laws themselves.

No basis to retain Act

Below are some very well articulated points by their lordships in the House of Lords’ debate on the motion:

“It is my understanding that … Secretary of State for Justice, agrees that there is no basis for keeping the laws of seditious libel … on the statute book and that there would be a benefit in setting an example to oppressive regimes which use similar offences to silence dissent by repealing them.” – Lord Lester of Herne Hill (HL Deb, 9 July 2009, cols 843)

“The power to express forcefully political discontent is the cornerstone of democracy and lies with the people. Conversely, it is not therefore in the power of government to criminalise this expression. The fundamental rights of UK individuals would be better protected by removing the offence of seditious libel from the statute book.” – Baroness D’Souza (HL Deb, 9 July 2009, cols 848)

“The ability of individuals to criticise the state is crucial to maintaining freedom. In this day and age, when we have so many journalists, bloggers and so forth who give us their views all the time, we should get rid of anything that may in any way curb their criticisms of the state. We need a vigorous culture of free speech in order to keep government up to the mark…

“…Of course, the laws of seditious and criminal libel are very active in other countries. Some of them look at us and say, “You have them, so why shouldn’t we have them? It is up to us whether we should use them”…

“… If Britain is seen as a beacon of parliamentary democracy, even after the Governments that we have had in recent years, the laws created here have a profound influence. It is time that these antique and out-of-date laws were repealed.” – Lord Thomas of Gresford (HL Deb, 9 July 2009, cols 849-850)

With that, the law of seditious libel was completely uprooted from the English legal system with the additional hope to help campaigners overseas argue for its abolition.

M’sia regressing
The Union therefore respectfully urges the Malaysian government and parliament to consider reviewing and repealing the Sedition Act 1948 instead of the further strengthening of the law.

As evident above, the law of sedition is nearly half a millennium old, an extremely archaic piece of law in which the British – whom enacted our Sedition Act has fully repealed.

And even so a requirement for seditious intent existed within the offence to provide a defendant with a right to be heard before the UK repealed the offence. Malaysia, on the other hand, did not only maintain the active use of a 409-year-old draconian law, but we have also strengthened the act to cover more areas.

It appears to the Union that the authority’s respect for our federal constitution, human rights and the rule of law in Malaysia has further regressed.

The Union maintains that the Sedition Act 1948 is an archaic and draconian law containing legal principles which defies the principles of natural justice and the rule of law. The Union also reiterates that there are sufficient laws within the Penal Code to tackle incitement of violence and the breach of peace through a higher and proper criminal threshold, rendering the Sedition Act irrelevant.

The Union further submits that the continual existence of the Sedition Act is a threat not just detrimental to civil liberties, but also academic freedom, press freedom and intellectual development in Malaysia.

Just as Lord Thomas very rightly said, a vigorous culture of free speech is needed to keep the government up to mark. As such, the Union respectfully urges the Malaysian government to withdraw the amendment and repeal the Sedition Act 1948.  —- MansuhAktaHasutan — PANG JO FAN