MEDIA LAW (LAW571)

QUESTION: OCTOBER 2009 PART B QUESTION 1 Syed Aizril is the owner of a web blog, Kickdefollow. He wrote in his blog about the Malaysian government and invited the people to fly Malaysian national flag upside down as a protest against the government. Upon receiving several complaints and after reading the web blog , the Attorne General decided to take legal action against Syed Aizril for making statements containing seditious tendency. Discuss the definition and the application of the law of sedition in Malaysia.

LECTURERS NAME: PN MAZLINA MOHAMAD MANGSOR

WIKI IDYVINO SAHA MOHD SANUSI NUR HIDAYAH MAT AZARITH SOFIA AZIZ NOR NAZIFAH AHMAD NORDIN NUR AMNI LUKMAN YATIMI 2011686094 2011272876 2011403462 2011408492 2011210784

The issue is whether the act publishing a blog contain seditious tendency might fall under the offence on Sedition Act and can public prosecutor initiate an action towards Syed Aizril by applying it in the High Court. The Sedition Act 1948 in Malaysia is a law prohibiting discourse deemed as seditious. The act was originally enacted by the colonial authorities of British Malaya. The act criminalizes speech with "seditious tendency", including any speech that would bring into hatred or contempt or to excite disaffection against the government or generate feelings of ill-will and hostility between different races. Under section 2 of the Sedition Act , it defines seditious when applied to or used in respect of any act , speech , words( any phrase, sentences or other), publication or other things as one having a seditious tendency . Seditious tendency is defined in Section 3 of the Sedition Act 1948 as to bring hatred or contempt or to excite disaffection against Ruler or government or to the administration of justice in the country, to raise discontent or disaffection among the citizen, to promote ill will and hostility between races or classes and to question the provisions of Federal Constitution dealing with language, citizenship, the special privileges of Malays and natives of Sabah and Sarawak and the sovereignty of the Rulers. Under the Act, those who commit an offence can be fined up to RM 5,000 and / or imprisoned up to three years. A second offence carries a sentence of up to five years imprisonment. Under section 3(1) the matter that is considers as sedition is as its bring into hatred to contempt or to excite disaffection against any ruler or government. Which mean any words which against the government or the ruler is fall under sedition. In the case of Public Prosecutor v Param Cumarasamy, the issue is to bring into hatred or contempt the administration of justice in the country. The defendants criticism of the Pardons Board for not applying uniform standards in considering applications for mercy was held not to constitute sedition. It was held that intention to stimulate to violence, uproar or public disorder is not a necessary ingredient of the crime. As long as the words were intentionally published and they had a tendency to cause ill will, the offence of seditious is complete. As in the case of Public Prosecutor v Ooi Kee Saik, the issue was to raise discontent or dissatisfaction among the subject. The facts of the case are where an opposition leader had accused the Government of gross partially in favour of one race over another. The accused have no defence to argue in terms as his words were, in fact, true and honest.it is also held that Sedition can be committed either in public or in private. The speaker the printer and the publisher, of a speech may all be prosecuted.

Other than that, it is a seditious if the speech or the words are to excite or provoke subjects to seek alteration other than by lawful means of any matter by law establish. In other words, if the matters would stimulate subject to amend or changes something that is not in lawful means it is a seditious act. Under Section 3(3) of the Seditious Act, it was laid down proving intention is not necessary for it to be seditious. It is enough if there is seditious tendency. The application of this act is that it is irrelevant to prove mens rea of such act to be seditious. This actually contradicts with the principle of a criminal offence. In the case of Public Prosecutor v Param Cumarasamy, it was held that there is seditious tendency it such act likely to incite to specific group or public at large. Section 4 (1) (a) of the Sedition Act stated that any person who does or attempt to do or makes any preparation to do , or conspires with any person to do any act which has or which would , if done , have a seditious tendency shall be guilty of an offence and shall on conviction , be liable for a first offence to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding five years; and any seditious publication found in the possession of the person or used in evidence at his trial shall be forfeited and may be destroyed . Section 10(1) of the Sedition Act laid down laid down the power of Public Prosecutor to apply to the High Court for an order to prohibit the circulation of seditious publication. It is called prohibiting order to prohibiting publication Section 10 (2) stated that an order under this section may be made ex parte on the application of the Public Prosecutor in chambers. Section 10 (3) of the SA stated that it shall be sufficient if the order describes the prohibited publication that it can be identified by a reasonable person who compares the prohibited publication with the description in the prohibition order. Section 10( 4) stated that every person on whom a copy of a prohibition order is served by any police officer shall forthwith deliver to that police officer every prohibited publication in his possession , power or control. And if he fails to do so , he shall be guilty of an offence and shall on conviction , be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding one year or to both. Not only have that, the Sedition Act 1948 also given a wide authority of power to arrest and search, with or without warrant. This can be seen in the sections 8 and 11 of the Act. Section 8 stated that a Magistrate may issue a warrant empowering any police officer, not below the rank of Inspector, to enter upon any premises where any seditious publication is known or is reasonably suspected to be and to search therein for any seditious publication. Sections 11 states that any police officer not

below the rank of Inspector may arrest without warrant any person found committing or reasonably suspected of committing or of having committed or of attempting to commit or of procuring or abetting any person to commit any offence against this Act, or reasonably suspected of the unlawful possession of anything liable to forfeiture thereunder. In appying to this problems, first Syed Azril had wrote in his blog an article which will bring hatred and dissatifaction towards the government. So, under section 3(1) of Sedition Act 1948, it can be recognised as a seditious act. Furthermore, by inviting people to fly the Malaysian national flag upside down as a protest against the government, it shows that he was provoking other to strive for changes in the government. Hence, it is a seditious matter under section 3(1) which provide the matter which have tendency of being a seditious act. Syed Aizril have publish words against the government and also propose people to raise Malaysian flag upside down on the month of August. Eventhough such act may be questioned as to the ground of intention, applying both Section 3(3) of the Seditious Act and the case of Public Prosecutor v Param Cumarasamy, such act amount to seditious tendency as there is likelihood that such act will incite havoc to the public. Furthermore, the act of publishing in his blog obviously shows that there is intention of such publication to be red to public. On the application of this section to the issue given , when Syed Aizril wrote in his blog about the Malaysian and invited Malaysians to fly the Malaysian flag upside down as a protest against the government , he actually already commit the offence under the section 4(1) of the Sedition act which he does and have seditious tendency on his writing/publication and may be liable with the charge stated on this section. Since Attorney General would like to take an action towards Syed Aizril after receiving a several complaints. Here , section 10 of the Sedition Act already state about Public prosecutor may make an application to the court in order to prohibit the circulation of seditious publication and by virtue of section 10 (3) it can be sufficient by looking the content of the blog as a seditious tendency by reasonable man. Since the blog receiving a complaint from a readers, itt can be assume that the blog is contains a seditious publication which may brought him liable under this offence. To apply the said laws into our application, it can be said that Syed Aizril can be arrested without any warrant issued. His action of telling others to hang the Malaysian national flag upside down is irrelevant. His objective was to show protest against the Malaysian government. By asking others to join your protest, this clearly shows that he is causing discomfort between the citizens and the government. This

will affects the national security and causing alarm towards the innocent citizens. Thus, Syed Aizril must be arrested, to be precise, under Section 11 of the Act, since further delay of his arrestment will cause problem to national harmony and peace. As a conclusion, Syed Aizril may be liable under the section provided in a Sedition Act that clearly shows that his act contains seditious meaning. Public Prosecutor also may initiate an action towards Syed Aizril by virtue of section 10 of the Sedition Act and he might be arrest without warrant if he reasonably suspected commit/ attempting to commit any offence against this Act.