The Demise of the Sedition Act

The Sedition Ordinance 1948 (the “Ordinance”) did not survive the establishment of the Malaysian Federal Constitution (the “Constitution”). Why? Well, to put it in one sentence, it is simply because the Ordinance wasn’t passed by Parliament. This argument was taken in the Federal Court a few days ago in a referral case on the constitutionality of the Sedition Act. Let’s go through the argument stage by stage.

Parliaments Exclusive Power to Restrict Freedom of Speech and Expression

Only Parliament may by law impose restrictions on right to freedom of speech and expression. This power lies within the exclusive realm of Parliament. This was made clear by the Supreme Court in the case of Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697. It is important to note that Article 10(2) requires that Parliament comes to a conclusion that a restriction on such right is necessary under one of the grounds stated in the same article

The Ordinance was never passed in Parliament

The Ordinance was passed by the British Legislative Council on 06.07.1948. Since its inception, the Ordinance has undergone the following:

1.    Modifications by the Yang di-Pertuan Agong (“YDPA”) pursuant to Article 162(4) of the Constitution on 13.11.1958 (the “1958 Order”);

2.    Two orders by the YDPA to extend the application of the Act to Sabah, Sarawak and Singapore;

3.    Revision by the Commissioner of Law Revision on 14.04.1970. The Sedition Ordinance 1948 was renamed as the Sedition Act 1948 (the Sedition Ordinance will be hereinafter referred to as the “Act”);

4.    Amendments by the YDPA pursuant to the Emergency (Essential Powers) Ordinance No.45 1970.

It is clear that the Act was never once passed or even discussed in the way required under Article 10(2) in Parliament.

Article 162 does not save the Act

The said Article allows Parliament or the Court to modify pre-Merdeka laws to bring it in accord with the Constitution. Back in 1956, the YDPA had the power to do so under Article 162(4) (repealed in 1963) as Parliament was yet to be established. The YDPA did in fact exercise his powers under Article 162(4) using the 1958 Order.

The point here is this: the Act was a law that was incapable of modification, and was therefore outside the ambit Article 162. In Malaysia, the cases of Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ 79 and Assa Singh v Menteri Besar, Johore [1969] 2 MLJ 30 extensively discussed the application of Article 162. In both these cases, it was held that the relevant law could be modified under Article 162. However, it left open the door to a scenario where a law could not be or was incapable of being modified under Article 162. The Court of Appeal in Singapore made this clear in Tan Eng Hong v Attorney-General [2012] 4 SLR 476 when discussing the Malaysian Article 162. V K Rajah JA in delivering the judgment of the Court stated:

“We align ourselves with the latter two cases, and find that while those two cases hold that modification of unconstitutional existing laws must be carried out, this is only in so far as modification is possible. Surinder Singh and Assa Singh leave open the position which the courts should take where modification is impossible, viz, whether the courts can then void the unconstitutional existing law under Art 4.”

The Act falls squarely under this category. It was a law that was incapable of modification as only Parliament could enact it. It fell outside the powers of the YDPA under Article 162(4). In considering this point, it must be borne in mind that the apex courts of this land has recognised the doctrine of separation of powers. As such, if the Constitution has provided for limits on a power, such limit must be respected as the Constitution is the supreme law of the land. The constitutional limit here is that only Parliament can legislate to restrict freedom of speech and expression.

To sum it up, the general rule is that pre-Merdeka laws can be modified to bring it in accord with the Constitution under Article 162. However, there is an exception, which is that Article 162 does not apply to laws that are incapable of being modified. The Act is such a law as only Parliament can enact it.

Subsequent Events did not validate the Act

If the Act is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. (Keshavan Madhava Menon v The State of Bombay, AIR 1951 SC 128)

Conclusion

The question is one of power and not of the substance of the Act. If the Act was tabled and passed in Parliament as required under Article 10(2), it would be valid. However, this was clearly not done. It is now in the hands of the Court to give effect to the fundamental principles underlying our Constitution.

The Story Behind the Sedition Act

Much has been said about the Sedition Act 1948 (the “Act”) and its background. Discussion on the Act has become ever more vibrant in light of its proliferated usage recently. It is important that the public knows how the Act came about and how it has evolved over the years. The following information is based on documents obtained from the National Archives of Malaysia and the United Kingdom.

Material Background

1.            The Federation of Malaya Agreement (“FMA”) was entered into on 21.01.1948. In essence, the Federation of Malaya (the “Federation”) united the Federated Malay States, Johor, Kedah, Perlis, Kelantan, Terengganu and the Strait Settlements. The executive authority was vested in the High Commissioner and the Federal Executive Council (“Executive Council”). The legislative authority was vested in the Federal Legislative Council (“Legislative Council”) which was headed by the High Commissioner.

The Sedition Ordinance 1948 (the “Ordinance”)

2.            On 10.06.1948, the Attorney-General, E.P.S. Bell, submitted a draft Sedition Bill (“Draft Bill”) to the Chief Secretary, H.P. Bryson. His reasons were stated in a telegram as follows, “His Excellency was anxious for a Bill to unify the law relating to sedition and I submit a draft herewith”.  The Draft Bill essentially was a reproduction of the various Sedition Enactments and Ordinances in each State with a few new provisions.

3.            On 12.06.1948, in an emergency meeting, the Draft Bill was considered and approved by the Federal Executive Council to be introduced in the Legislative Council on 05.06.1948.  An Emergency Ordinance Bill (“Emergency Bill”) was also discussed in the same meeting.

4.            On 16.06.1948, the High Commissioner declared a state of emergency in certain areas of Perak and Johor. This proclamation was extended to the whole of the Federation on 18.06.1948 pursuant to the British Military Administration Proclamation (Essential Regulations) Ordinance. The emergency was declared due to the increase of communist attacks in the Federation.

5.            The Emergency Bill was passed in the Legislative Council on 05.06.1948 and came into force as the Emergency Regulations Ordinance 1948 on 07.07.1948 (“Emergency Ordinance 1948”).

6.            On 06.06.1948, the Sedition Bill (the “Bill”) was tabled in the Legislative Council. Before the Bill was read, the Standing Rules and Orders of the Legislative Council were suspended pursuant to Rule 121 of the same to enable the Bill to be taken through all its stages in the proceedings. The Bill was eventually passed on the same day.

7.            On 12.07.1948, the High Commissioner made an emergency proclamation pursuant to Section 3 of the Emergency Ordinance 1948 which applied to the whole of the Federation. The Sedition Bill came into force as the Sedition Ordinance on 19.07.1948.

The Ordinance after Independence

8.            All the modifications and amendments discussed below can be viewed here - http://surendraananth.blogspot.com/2015/03/modifications-and-amendments-made-to.html.

9.            On 13.11.1958, the Yang di-Pertuan Agong (“YDPA”) made an order cited as the Federal Constitution (Modification of Laws) (Ordinances and Proclamations) Order 1958 (the “1958 Order”) pursuant to Article 162(4) of the Federal Constitution. The 1958 Order consisted of modifications which appeared to the YDPA to be necessary or expedient for the purpose of bringing the provisions of existing laws into accord with the provisions of the Constitution. The 1958 Order made certain modifications to the Ordinance.

10.         On 28.05.1964, the YDPA made an order cited as the Modification of Laws (Sedition) (Extension and Modification) Order 1964 pursuant to Section 74 of the Malaysia Act which extended the application of the Ordinance to Sabah and Singapore. A similar order was made by the YDPA on 20.11.1969 to extend the application of the Ordinance to Sarawak.

11.         The Ordinance was revised by the Commissioner of Law Revision to become the Sedition Act 1948 on 14.04.1970 pursuant to Section 6 of the Revision of Laws Act 1968. Minor substitutions and grammatical changes were also made.

The Sedition Act 1948

12.         On 15.05.1969, the YDPA made an emergency proclamation pursuant to Article 150 of the Federal Constitution. On 10.08.1970, the YDPA issued an ordinance entitled Emergency (Essential Powers) Ordinance No.45 1970 (“Emergency Ordinance 1970”) pursuant to Article 150(2) of the Federal Constitution. The YDPA had amended the Sedition Act 1948 via the Emergency Ordinance 1970.

13.         On 20.12.2011, the Senate passed a motion to annul the 1966, 1969 and 1977 Emergency Proclamations.

Conclusion

Many have said that the Ordinance was passed to combat communism. Although the Ordinance was not an emergency law, the timing of its inception and the fact that it was passed in a rush speaks for itself. 

Modifications and Amendments made to the Sedition Act from its Inception in 1948

Date	Sections Amended	Original Provision	Amended Provision
13.11.1958	Section 2 – Definition of “Government” substituted	“Government” means any of the Governments of the United Kingdom, of the Federation, of any State or Settlement in the Federation, or of any Dominion, Colony, Protectorate State or territory in the possession of or under the protection of or held under any mandate or trusteeship by His Britannic Majesty or the Government of any of His Britannic Majesty’s Dominion	“Government” means the Government of the Federation and of any State in the Federation
	Section 2 – Definition of “Ruler” substituted	“Ruler” means His Britannic Majesty or any Ruler of any Malay or other State under the protection of His Britannic Majesty	“Ruler” means the Yang di-Pertuan Agong or the Ruler or Governor of any State in the Federation
	Section 3(1)(c) – words “Malay” and “Settlement” deleted	To bring into hatred or contempt or to excite disaffection against the administration of justice in the Federation or in any Malay State or Settlement; or	To bring into hatred or contempt or to excite disaffection against the administration of justice in the Federation or in any State; or
	Section 3 (1)(d) – words “His Majesty” and words “Malay” and “Settlement” deleted	To raise discontent or disaffection amongst the subjects of His Majesty or of the Ruler of any Malay State or amongst the inhabitants of the Federation or of any Malay State or Settlement; or	To raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any Malay State or amongst the inhabitants of the Federation or of any State; or
	Section 6(1) – words “Enactment of the Federated Malay States or any corresponding provision of law in force in any Malay State or Settlement” substituted	Notwithstanding anything to the contrary contained in the Evidence Enactment of the Federated Malay States or any corresponding provision of law in force in any Malay State or Settlement, no person shall be convicted of an offence under section 4 of this Ordinance on the uncorroborated testimony of one witness	Notwithstanding anything to the contrary contained in the Evidence Ordinance, 1950, no person shall be convicted of an offence under section 4 of this Ordinance on the uncorroborated testimony of one witness
	Marginal note to Section 6(1) substituted	Evidence F.M.S. Cap. 10	No. 11 of 1950
14.04.1970	Title	Federation Of Malaya, No. 14 of 1948	Laws of Malaysia, Act 15, Sedition Act, 1948
	Preamble – substituted the word “Ordinance” with the word “Act”	An Ordinance to provide for the punishment of sedition	An Act to provide for the punishment of sedition
	Section 1 – substituted the word “Ordinance’ with the word “Act”	This Ordinance may be cited as the Sedition Ordinance, 1948	This Act may be cited as the Sedition Act, 1948
	Section 3(1)(b) – substituted the words “by such Government” with the words “by the Government”	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 such Ruler or governed by such Government, the alteration, otherwise than by lawful means, of any matter as by law established; or	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 such Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established; or
	Section 3(1)(c) – substituted the words “the Federation” with the word “Malaysia”	To bring hatred or contempt or to excite disaffection against the administration of justice in the Federation or in any State; or	To bring hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State; or
	Section 3(1)(d) - substituted the words “the Federation” with the word “Malaysia”	To raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any Malay State or amongst the inhabitants of the Federation or of any State; or	To raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any Malay State or amongst the inhabitants of Malaysia or of any State; or
	Section 3(1)(e) - substituted the words “the Federation” with the word “Malaysia”	To promote feelings of ill-will and hostility between different races or classes of the population of the Federation	To promote feelings of ill-will and hostility between different races or classes of the population of Malaysia
	Section 3(2) – Made grammatical changes	Notwithstanding anything in sub-section (1) of this section contained an act, speech, words, publication or other thing shall not be deemed to be seditious by reason  only that it has tendency -	Notwithstanding anything in sub-section (1) an act, speech, words, publication or other things shall not be deemed to be seditious by reason only that it has a tendency -
	Section 3(2)(c) - substituted the words “by such Government” with the words “by the Government”	To persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Ruler or governed by such Government as by law established; or	To persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Ruler or governed by the Government as by law established; or
	Section 3(2)(d) - substituted the words “the Federation” with the word “Malaysia”	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 of the population of the Federation	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 of the population of Malaysia
	Section 3(3) – substituted the word “Ordinance” with the word “Act”	For the purpose of proving the commission of any offence against this Ordinance the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact such act had, or would, if done, have had, or such words, publication or thing had, a seditious tendency	For the purpose of proving the commission of any offence against this Act the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact such act had, or would, if done, have had, or such words, publication or thing had, a seditious tendency
	Section 5(1) – Deleted the words “of this Ordinance”	No prosecution for an offence under section 4 of this Ordinance shall be begun except within six months after the offence is committed	No prosecution for an offence under section 4 shall be begun except within six months after the offence is committed
	Section 5(2) - Deleted the words “of this Ordinance” and substituted the words “the Federation” with the word “Malaysia”	No person shall be prosecuted for an offence under section 4 of this Ordinance without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Federation to be the Court of trial.	No person shall be prosecuted for an offence under section 4 without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Malaysia to be the Court of trial.
	Section 6(1) – Deleted the figure “1950” and the words “of this Ordinance”	Notwithstanding anything to the contrary contained in the Evidence Ordinance, 1950, no person shall be convicted of an offence under section 4 of this Ordinance on the uncorroborated testimony of one witness	Notwithstanding anything to the contrary contained in the Evidence Ordinance, no person shall be convicted of an offence under section 4 on the uncorroborated testimony of one witness
	Section 6(2) – substituted words “paragraph (c) or paragraph (d) of sub-section (1) of section 4 of this Ordinance” with words and figures “section 4(1)(c)(d)”	No person shall be convicted of any offence referred to in paragraph (c) or paragraph (d) of sub-section (1) of section 4 of this Ordinance if such person proves that the publication in respect of which he is charged was printed, published, sold, offered for sale, distributed, reproduced or imported (as the case may be) without his authority, consent and knowledge, and without any want of due care or caution on his part, or that he did not now and had no reason to believe that the publication had a seditious tendency.	No person shall be convicted of any offence referred to in section 4(1)(c) or (d) if the person proves that the publication in respect of which he is charged was printed, published, sold, offered for sale, distributed, reproduced or imported (as the case may be) without his authority, consent and knowledge, and without any want of due care or caution on his part, or that he did not now and had no reason to believe that the publication had a seditious tendency.
	Section 7 – added the words “or, in Sabah and Sarawak, to an administrative officer or to the officer in charge of the nearest police station”	Any person to whom any seditious publication is sent without his knowledge or privity shall forth-with as soon as the nature of its contents has become known to him deliver such publication to the officer in charge of a police district, and any person who complies with the provisions of this section shall not be liable to be convicted for having in his possession such publication:	Any person to whom any seditious publication is sent without his knowledge or privity shall forth-with as soon as the nature of its contents has become known to him deliver such publication to the officer in charge of a police district or, in Sabah and Sarawak, to an administrative officer or to the officer in charge of the nearest police station, and any person who complies with the provisions of this section shall not be liable to be convicted for having in his possession such publication:
	Section 9(2) – made grammatical changes	Any person who contravenes an order made under this section shall be guilty of an offence, and shall be liable to imprisonment of either description for a term not exceeding three years or to a fine not exceeding five thousand dollars or to both such imprisonment and fine	Any person who contravenes an order made under this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding three years or to both.
	Section 9(3) – substituted the word “Ordinance” with the word “Act”	Nothing in this Ordinance shall affect the power of the Court to punish any person contravening an order under this section for contempt of Court: Provided that no person shall be punished twice for the same offence	Nothing in this Act shall affect the power of the Court to punish any person contravening an order under this section for contempt of Court: Provided that no person shall be punished twice for the same offence
	Section 10(4) – made grammatical changes	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 be liable to imprisonment of either description for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine.	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 dollars or to imprisonment for a term not exceeding one year or both
	Section 10(5) – made grammatical changes	Every person to whose knowledge it shall come that a prohibited publication is in his possession, power, or control shall forthwith deliver every such publication into the custody of the police, and, if he fails to do so, he shall be guilty of an offence and shall be liable to imprisonment of either description for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine	Every person to whose knowledge it shall come that a prohibited publication is in his possession, power, or control shall forthwith deliver every such publication into the custody of the police, 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 dollars or to imprisonment for a term not exceeding one year or to both
	Section 10(8) – substituted words “Government of the Federation” with the words “Federal Government”	Every prohibited publication delivered or seized under this section with respect to which a petition is not filed within the time aforesaid or which is not ordered to be returned to the owner shall be deemed to be forfeited to the Government of the Federation	Every prohibited publication delivered or seized under this section with respect to which a petition is not filed within the time aforesaid or which is not ordered to be returned to the owner shall be deemed to be forfeited to the Federal Government
	Section 11 – substituted the word “Ordinance” with the word “Act”	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 Ordinance, or reasonably suspected of the unlawful possession of any thing liable to forfeiture thereunder	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 any thing liable to forfeiture thereunder
	Section 12 – repealed	The Ordinance and Enactments set out in the Schedule to this Ordinance are hereby repealed
	Schedule (Section 12) Repeal - repealed	List of Sedition Enactments and Ordinances in the Federated Malay States, Strait Settlements, Johore, Kedah, Perlis, Kelantan and Terengganu
10.08.1970	Section 3(1) – new paragraph (f) added	A “seditious tendency” is a tendency -	A “seditious tendency” is a tendency – (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
	Section 3(2)(b) – inserted new phrase after “constitution as by law”	To point out errors or defects in any Government or constitution as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or	To point out errors or defects in any Government or constitution as by law (except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in paragraph (f) of sub-section (1) otherwise than in relation to the implementation of any provision relating thereto) established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or
	Section 3(2) – paragraphs (c) and (d) substituted with paragraph (c)	(c) to persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Ruler or governed by such Government as by law established; or (d) 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 of the population of the Federation;	(c) except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in paragraph (f) of sub-section (1)- (i) to persuade the subjects of any Rulers or the inhabitants of any  territory governed by any Government to attempt to procure by  lawful means the alteration of any matter in the territory of such  Government as by law established; or (ii) to point out, with a view to their removal, any matters producing  or having a tendency to produce feelings of illwill and enmity  between different races or classes of the population of the  Federation,
	Section 5 – Deleted sub-section (1) and renumbered sub-section (2) as sub-section (1)	(1) No prosecution for an offence under Section 4 of this Ordinance shall be begun except within six months after the offence is committed; (2) No person shall be prosecuted for an offence under section 4 of this Ordinance without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Federation to be the Court of trial	(1) No person shall be prosecuted for an offence under section 4 of this Ordinance without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Federation to be the Court of trial