People’s Call for Regime Change – Part 2

By NH Chan
18 February, 2011

(The People’s Judge continues his call to the young to use the tools of modern communication to effect change in Malaysia, pointing out how we are stuck with a government using 19th century British colonial laws to further repress us. Read Part 1 of this article here.-

The Sedition Act as applied in this country

The sedition legislation is the most oppressive law ever devised by a colonial power to subjugate the natives by the colonialists who took over the land they had colonized. In this country the Sedition Act 1948 is typical of such colonialism – this word means ‘the practice of acquiring and controlling another country and occupying it’. If you read on you will know that this is the true picture of how our Sedition Act 1948 migrated from 1870 British India to Peninsular Malaya in 1948 when the country was a British protectorate except for Malacca and Penang which were colonies.

There is an excellent article in the Star, Wednesday, 9 February 2011, titled Sedition law’s overreach by Professor Shad Saleem Faruqi. It says:

Definition: Section 2 and 3(1) of the [Sedition Act 1948] state that any act, speech, words or publication are seditious if they have a tendency towards any of the following:

To bring into hatred or contempt or to excite disaffection against any Ruler or government.

Dissaffection does not mean absence of affection but refers to disloyalty, enmity and hostility: PP v Param Cumaraswamy [1986] 1 MLJ 526

Application of the law: In Param Cumaraswamy it was held that intention to incite to violence, tumult 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, etc, the offence is complete.

The Professor also alluded to the acquittal of Mr Cumaraswamy:

But in PP v Param the defendant’s criticism of the Pardon’s Board for not applying uniform standards in considering applications for mercy was held not to constitute sedition.

I was the judge who tried Mr Param Cumaraswamy. At the conclusion of the trial, I acquitted him.

As pointed out by Professor Faruqi ‘As long as the words were intentionally published and they had a tendency to cause ill will, etc, the offence is’ established. I had to acquit Param Cumaraswamy because I made a finding of fact that the words when uttered by him, who is a mere lawyer without any following, could not possibly have any tendency ‘to bring into hatred or contempt or to excite disaffection against any Ruler or government’. The Public Prosecutor, who in this case was the Attorney-General – he was Abu Talib – did not appeal.

Just think how repressive this law is. You can’t even say that the powers that be were practicing double standards. If Param had been tried before another judge he could have been convicted. For example, in Lim Guan Eng v PP [1998] 3 MLJ 14, HC & CA; [2000] 2 MLJ 577, FC an opposition leader who complained that justice was selectively administered was convicted of the sedition charge. Even members of Parliament can be convicted of sedition for words spoken in Parliament: see Mark Koding v PP [1982] 2 MLJ 120.

Mahathir when he was Prime Minister spoke in Parliament to remove the powers of the rulers yet nothing happened to him. But if anyone were to point out there is selective prosecution he can be charged for sedition and most probably he would be convicted.

At the end of his article, the Professor pointed out that:

The concept of sedition in Malaysia is much broader than in the UK, Ireland, India and Australia.

On ideal democratic standards, the law is open to many criticisms for its breadth and for its far-reaching implications on political life in the country.
For this reason it is ripe for review. Whether the technique for law reform will be legislative or judicial remains to be seen.

We are stuck in the 19th century

The professor is quite right. The Sedition Act 1948 is an archaic piece of legislation. It migrated from 1870 British India to Peninsular Malaya in 1948 (Sabah in 1964 and Sarawak in 1969). While other countries of the Commonwealth, of which Malaysia is a member, have advanced into the modern age, in this country, time stood still. We are still back in the time of Sir James Stephen in 1870 British India. This was pointed out by Sinha CJ in Kader Nath v State of Bihar [1962] AIR, SC 955. In fact section 124A of the Indian Penal Code was the work of Stephen J.

Sir James Stephen was the judge (he was Mr Justice Stephen in England) whose definition of sedition appeared as Article 93 of the Digest of the Criminal Law. I said this before I called on Mr Cumaraswamy to enter on his defence, “Although it may appear to be in English case law that incitement to violence or inciting others to public disorders is an essential ingredient of sedition, it is not so in a criminal code which has as its model Stephen’s definition.”

Article 93 of the Digest was used as the model for the crime of sedition in the Criminal Code of the Gold Coast.

So that when we look at section 124A of the Indian Penal Code or at the Criminal Code of the Gold Coast on Sedition, or our own Sedition Act, we are looking at the definition of sedition as apprehended by Sir James Stephen back in the year 1870. The English common law on sedition has developed separately from Stephen’s 1870 definition. As pointed out by Professor Faruqi other nations like the UK, Ireland, India and Australia have moved on to modern times. The modern law of sedition is no longer repressive in other countries but not so in Malaysia where our sedition law is the same law as applied to the colonies of Great Britain back in the year 1870. For us Malaysians we live in a retrograde – this word means moving backwards to a worse state – country where our clock had stopped in the year 1870.

Using the ability of the internet for change

Now, I trust you will realize that we Malaysians are in dire straits. Don’t you think it is time for us to move on to a better Malaysia. Like the people of Egypt we can use people’s power to change from tyranny to a true democracy. Use the power of your vote to unseat the oppressors.
We have been under their yoke for 53 years. Enough is enough!

Use facebook and twitter. Use your email and if every reader of this article emails it to his friends we will be able to persuade a whole generation of young people to vote out the BN and replace them with a new government.

It doesn’t matter that the new are inexperienced but at least we have a government of the people, by the people and for the people. It took the English peoples 700 years to get rid of their tyrannical kings. The American people took 250 years to get to where they are today.

I don’t think we will take that long because we are resilient and we have the benefit of hindsight. And above all we have our young people whose young minds will be able to meet the challenges ahead.

  1. #1 by monsterball on Friday, 18 February 2011 - 8:58 pm

    Mahathir studied copied faithfully how the Dictators and corrupt government succeeded in European history…particularly by the British…whose dictatorship lasted for 700 years.
    Mahathir was the master mind to what the present government is today.
    Now..Judge NH Chan..have spoken out ….along with others.
    I guess all are inspired to speak up…after Mahathir start passing the buck again to others..making him so saintly and good…that pissed off millions and inspired few to speak up.
    Read all…and you can conclude what UMNO B is..for the past 30 years.

  2. #2 by raven77 on Saturday, 19 February 2011 - 2:10 am

    Time for talk was long over….Malaysians.geez….should go for Egyptian training

  3. #3 by yhsiew on Saturday, 19 February 2011 - 8:11 am

    “People power” should only be the last resort when the government oppresses the people and deprives them of democratic rights. Leaders who use “people power” to achieve regime change must make sure that the country does not descend into anarchy after power transition. They should be reminded that worker strikes took to the street after the fall of Egypt’s ruling regime, and in the case of Tunisia looting and robberies broke out after power transition.

    Generally, an orderly and peaceful constitutional transfer of power is preferred to “people power” as the latter may result in lost of human lives, disruption in normal daily activities and massive outflow of foreign funds which could cripple the national economy.

    “People power” will NOT work in Malaysia as the pro-government group (mostly Malays) is much bigger than the anti-government group.

    It is the responsibility of the ruling regime to commit to reforms, modernization and looking after people’s basic needs (food, housing, employment etc) so as to prevent social upheavals.

  4. #4 by k1980 on Saturday, 19 February 2011 - 10:32 am

    had the above happened not in Bahrain but in Myanmar or China, the Americans would had imposed trade sanctions. Why the double standards? Because Bahrain is pro-American in the Middle East?

  5. #5 by k1980 on Saturday, 19 February 2011 - 1:11 pm

    Libya’s Qaddafi has been ruler there for 41 years. How many billions has he sapued?

  6. #6 by boh-liao on Sunday, 20 February 2011 - 12:53 pm

    Like it or not, we live in a selfish hypocritical world full of double standards
    Everything can b twisted or used in favor of d person/party in power
    Of cos, under a different gomen, MMK would b found guilty of many evil misdeeds
    He survived intact bcos of UmnoB/BN gomen
    Dis is our political weakness n we must CHANGE it 2 a stable accountable 2-party system which may bring some fear 2 our corrupt politicians on both sides

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