1

AMERICAN BAR ASSOCIATION

CENTER FOR HUMAN RIGHTS

WASHINGTON, DC

Report: Malaysia’s Sedition Act Unlawfully Restricts Free Expression

Executive Summary

The American Bar Association Center for Human Rights (Center)1 reviewed Malaysia’s Sedition

Act and found that it infringes upon the right to freedom of expression, as enshrined in

international treaties and norms. The law is also far more restrictive than similar laws in other

Commonwealth countries. The Center analyzed the law in response to concerns that it was being

used to silence government critics, including human rights attorney Eric Paulsen and political

cartoonist Zunar.

As it stands, the Sedition Act does not adequately protect the right to freedom of expression

granted by the Universal Declaration of Human Rights, and is far too broad to meet the

international standards for restrictions on freedom of expression under the International

Covenant on Civil and Political Rights. The law violates the international standard on restrictions

on free expression by not serving a legitimate purpose and instead stifling debate about matters

of public interest, including the conduct of public figures. The United Nations Human Rights

Committee has specifically commented that “[e]xtreme care must be taken” to ensure that

sedition laws are not invoked “to suppress or withhold from the public information of legitimate

public interest that does not harm national security or to prosecute journalists, . . . human rights

defenders, or others, for having disseminated such information.”2

Sedition as an offense originated in the United Kingdom, but the United Kingdom has since

abolished it. A review of other Commonwealth jurisdictions has found that Australia has

followed suit, the United States has no federal sedition law, and the highest courts in Canada,

India, and South Africa have significantly limited the application of their countries’ sedition laws

1 This memorandum was prepared by pro bono counsel on behalf of the Justice Defenders program of the American

Bar Association, Center for Human Rights. The views expressed herein have not been approved by the House of

Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as

representing the policy of the American Bar Association. In addition, this memorandum is intended as background

information. It is not intended as legal advice on a particular case. 2 U.N. Human Rights Comm., General Comment No. 34, Article 19: Freedoms of opinion and expression, ¶ 30 (July

29, 2011) (hereinafter “Article 19 Comment”), available at

http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf.

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in ways that ensure those laws would not hinder a citizen’s right to freedom of expression. In

these countries, the crime of sedition requires the offender intend to directly incite individuals to

violence against the state.

About the ABA Center for Human Rights: Through the Justice Defenders Program, we

provide assistance in a range of circumstances, including helping activists and lawyers charged

with crimes in retaliation for their advocacy efforts. We do so through pro bono legal assistance

which includes litigation advice, legal research and drafting, advocacy, and trial observations.

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AMERICAN BAR ASSOCIATION

CENTER FOR HUMAN RIGHTS

WASHINGTON, DC

MEMORANDUM

To: Interested Persons

From: American Bar Association Center for Human Rights – Justice Defenders Program

Re: International and Comparative Analysis of Malaysia’s Sedition Act of 1948

The American Bar Association Center for Human Rights3 was asked to provide an analysis of

Malaysia’s Sedition Act of 1948 (the “Act” or the “Sedition Act”) under international and

commonwealth freedom of expression standards as they relate to sedition laws. Eric Paulsen is a

human rights lawyer and the executive director of Lawyers for Liberty in Malaysia. Zulkiflee

Bin Sm Anwaraul Haque (Zunar) is a satirical cartoonist, who just won the Committee to Protect

Journalist’s 2015 International Press Freedom Award.4 Both of these men are facing prison

sentences after being charged under Article 4 of Malaysia’s Sedition Act 1948. According to

widely reported facts, Mr. Paulsen has been charged under Section 4(1)(c) of Malaysia’s

Sedition Act 1948 for sending a message over his Twitter account that criticized the Malaysian

Department of Islamic Development (Jakim). In his message, Mr. Paulsen alleged that Jakim was

promoting extremist interpretations of Islam in its Friday sermons, despite the Government of

Malaysia’s public commitment to combat extremist ideology in Malaysia.5 Zunar is facing nine

3 This memorandum was prepared by pro bono counsel on behalf of the Justice Defenders program of the American

Bar Association, Center for Human Rights. The views expressed herein have not been approved by the House of

Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as

representing the policy of the American Bar Association. In addition, this memorandum is intended as background

information. It is not intended as legal advice on a particular case.

4 See Committee to Protect Journalists, “CPJ International Press Freedom Awards 2015,” https://cpj.org/awards/

(last visited November 20, 2015).

5 The Defense Minister of Malaysia commented that a terrorist attack like the one in Paris could happen in Malaysia.

Paulsen tweeted: “Jakim is promoting extremism every Friday. Govt needs to address that if serious about

extremism in Msia;” See, e.g. The Malaysian Insider, “PAS: Friday sermon an attempt to spread religious hatred,”

http://www.themalaysianinsider.com/malaysia/article/pas-friday-sermon-an-attempt-to-spread-religious-hatred (last

visited March 4, 2015); The Malay Mail Online (reprinted by Spot News), “Only Muslims will help Muslims, Jakim

says in Friday Sermon,” http://www.spotnews.co/malaysia-news/53edad3b4da171bd394680bb (last visited March 4,

2015).

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charges under the Sedition Act, for nine individual tweets criticizing the Malaysia judiciary after

Anwar Ibrahim’s Federal Court verdict that he sent out over his Twitter account.6

The Act falls well short of Commonwealth and international freedom of expression standards,

particularly due to the law’s extremely broad definition of sedition, complete lack of an intent

requirement, and imprisonment for up to three years for the first offense and up to five years for

subsequent offenses. This memorandum includes (1) an overview of the Sedition Act; (2) a

comparative analysis of sedition law in Commonwealth jurisdictions, including arguments that

have been successful in overturning or limiting such laws in those jurisdictions; and (3) analysis

of the Sedition Act under prevailing international human rights law and norms of freedom of

expression.

Sedition Act of 1948

The Constitution of Malaysia, in Article 10, states that “every citizen has the right to

freedom of speech and expression,” although this right is subject to certain listed restrictions,

including laws “prohibiting the questioning of any matter, right, status, position, privilege,

sovereignty or prerogative.”7 Article 149 of the Constitution could authorize laws that may be in

conflict with Article 10. One such law is the Sedition Act of 1948, which, among other things,

criminalizes “any act” which has a broadly defined “seditious tendency.”8 However, the Sedition

Act has been constitutionally challenged on the argument that it is not a valid law as it was not

enacted by Parliament, but before Parliament was in existence.9 The Federal Court ruled that

6 See Charge Sheet of Zulkiflee Bin Sm Anwaraul Haque (Zunar); See also Index on Censorship, Zunar: “I Will

never stop. It is my right as a citizen to express my view, October 29, 2015,

https://www.indexoncensorship.org/2015/10/zunar-i-will-never-stop-it-is-my-right-as-a-citizen-to-express-my-view/ 7 Constitution, Art. 10 (Malaysia) (2010).

8 Sedition Act 1948, Act 15 (2006) (Malaysia), available at http://www.agc.gov.my/Akta/Vol.%201/Act%2015.pdf.

“Seditious tendency” is defined as a tendency:

(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;

(b) 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 the Ruler or governed by the Government, the alteration, otherwise

than by lawful means, of any matter as by law established;

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in

Malaysia or in any State;

(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of

any State or amongst the inhabitants of Malaysia or of any State;

(e) to promote feelings of ill will and hostility between different races or classes of the population of

Malaysia; or

(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.

Id. § 3(1).

9 Article 149 (“Legislation against subversion, action prejudicial to public order, etc.”) explicitly authorizes laws

notwithstanding Article 10 so long as the legislation recites “that action has been taken or threatened by any

(continued…)

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Article 162 of the Constitution allowed for the Sedition Act to be considered a validly

constituted law under the Constitution of Malaysia.10

The Sedition Act criminalizes (1) the commission, attempt, or conspiracy to commit “any

act” which has or would have a “seditious tendency”; (2) “utter[ing] any seditious words”; and

(3) printing, publishing, offering for sale, distributing, reproducing, or importing “any seditious

publication.”11

Each of these offenses is punishable by fines and imprisonment for up to three

years for the first offense, and up to five years for a subsequent offense and mere possession of

“any seditious publication” absent a “lawful excuse” is punishable by fines and imprisonment for

up to one and a half to three years.12

The Act also allows the Malaysian government to impose

the following prohibitions for up to one year on newspapers convicted of publishing any matter

having a seditious tendency, with violations subject to fines and imprisonment for up to three

years: (1) prohibiting the future publication of the newspaper; (2) prohibiting the person(s)

convicted from publishing, editing, writing, or assisting with the production of any newspaper;

(3) seizing any printing press used in contravention of the aforementioned prohibitions.13

It

further allows court orders to prohibit the issuance or circulation of seditious publications and the

surrender to the police of all copies of the publications, with non-compliance subject to fines and

imprisonment for up to one year.14

In addition to these substantive offenses, the Sedition Act includes two notable

procedural elements. First, the Act authorizes arrests without a warrant of any person who

committed, attempted to commit, aided others to commit, or is reasonably suspected of

committing any of the listed offenses.15

And second, the offenses under the Act explicitly lack

any intent requirement, rendering them strict liability offenses because “the intention of the

person charged . . . shall be deemed to be irrelevant if in fact the act had . . . a seditious

tendency.”16

Comparative Analysis of Sedition Law in Commonwealth Jurisdictions

The crime of sedition, which originated in the United Kingdom, is no longer recognized

in that country or several other Commonwealth nations. Courts, legislatures, and law reform

substantial body of persons, whether inside or outside the Federation,” which, among other things, “excite[s]

disaffection against . . . any Government in the Federation,” or “is prejudicial to public order in, or the security of

the Federation or any part thereof.Constitution, Art. 149 (Malaysia) (2010).

10 See The Malay Mail Online, Federal Court rules Sedition Act constitutiona, UM’s Azmi Sharom to stand trial,

http://www.themalaymailonline.com/malaysia/article/federal-court-rules-sedition-act-constitutional-ums-azmi-

sharom-to-stand-tr .

11 Id. § 4.

12 Id.

13 Id. § 9.

14 Id. § 10.

15 Id. § 11.

16 Id. § 3(3).

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commissions have declared it anachronistic, undemocratic, and an unconstitutional

encroachment on the right to freedom of expression. Where Commonwealth countries do

maintain the crime of sedition, it is limited to situations in which the actor incited the public to

violence against the state. The cumulative weight of authority of so many Commonwealth

countries should be persuasive to Malaysia’s courts.

The Commonwealth jurisprudence described below provides two principal arguments.

The United Kingdom and Australia have abolished their sedition laws, and the United States has

no federal sedition law. In the alternative, Canada, India, and South Africa have each imposed

strong intent requirements on their sedition laws, effectively limiting actionable sedition to the

intent to incite violence against the state. The United Kingdom similarly adopted this intent

requirement prior to fully abolishing its sedition law, and the United States has imposed this

intent requirement on state laws. From these countries, it could be argued that Malaysia should

not only impose a specific intent requirement on the Sedition Act—as opposed to the current

strict liability framework—but also that this requirement should be similarly strong. Modern

statutes and case law from South Africa and Australia also support these two arguments.

Canada

Canada was the first Commonwealth country to severely limit the scope of sedition, in

the 1951 case Boucher v. The King. While the crime of sedition remains in the Canadian

Criminal Code,17

it has not been used since the Boucher decision.18

Boucher involved the

seditious libel conviction of a Jehovah’s Witness who distributed leaflets titled “Quebec’s

Burning Hate for God and Christ and Freedom is the Shame of all Canada” that urged the people

17 R.S.C. 1985, c. C-46, § 59-60.

Seditious words 59. (1) Seditious words are words that express a seditious

intention.

Seditious libel (2) A seditious libel is a libel that expresses a seditious intention.

Seditious conspiracy (3) A seditious conspiracy is an agreement between two or

more persons to carry out a seditious intention.

Seditious intention (4) Without limiting the generality of the meaning of the

expression “seditious intention”, every one shall be presumed to have a seditious

intention who (a) teaches or advocates, or (b) publishes or circulates any writing

that advocates, the use, without the authority of law, of force as a means of

accomplishing a governmental change within Canada.

Exception 60. Notwithstanding subsection 59(4), no person shall be deemed to

have a seditious intention by reason only that he intends, in good faith, (a) to

show that Her Majesty has been misled or mistaken in her measures; (b) to point

out errors or defects in (i) the government or constitution of Canada or a

province, (ii) Parliament or the legislature of a province, or (iii) the

administration of justice in Canada; (c) to procure, by lawful means, the

alteration of any matter of government in Canada; or (d) to point out, for the

purpose of removal, matters that produce or tend to produce feelings of hostility

and ill-will between different classes of persons in Canada.

18 Article 19 Global Campaign for Free Expression, “Memorandum on the Malaysian Sedition Act 1948,” July 2003,

p. 7.

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of Quebec to protest the government.19

The Canadian Supreme Court overturned the conviction,

holding that although the contents of the leaflet were intended to provoke anger and hostility

toward the state, that alone was not sufficient for a charge of sedition. The Court stated, “[a]n

intention to bring the administration of justice into hatred and contempt or exert disaffection

against it is not sedition unless there is also the intention to incite people to violence against it.”20

This is especially relevant when compared to the Sedition Act, which has no intent requirement

and therefore sweeps incredibly broadly. Canada’s law already had an intent requirement prior

to Boucher,21

but the Canadian Supreme Court nevertheless substantially strengthened it,

leaving the only actionable form of seditious intent as the intent to incite violence against the

state.

Justice Rand’s concurrence in Boucher highlighted the Court’s reasoning behind limiting

the law so significantly that it has not been implemented since. Tracing the history of the crime

of sedition throughout common law, Justice Rand stated that the law came from a time when “we

conceive[d] of the governors of society as superior beings, exercising a divine mandate, by

whom laws, institutions, and administrations are given to men to be obeyed, who are, in short,

beyond criticism, reflection or censure upon them or what they do.”22

Law’s purpose is to

change as society does, however. Rand stated:

[C]onstitutional conceptions of a different order making rapid

progress in the 19th century have necessitated a modification of the

legal view of public criticism; and the administrators of what we

call democratic government have come to be looked upon as

servants, bound to carry out their duties accountably to the public.

The basic nature of the Common Law lies in its flexible process of

traditional reasoning upon significant social and political matter;

and just as in the 17th century the crime of seditious libel was a

deduction from fundamental conceptions of government, the

substitution of new conceptions, under the same principle of

reasoning, called for new . . . conclusions.23

The Malaysian courts should recognize this same flexibility in their law as they reconsider its

applicability. As Justice Rand stated, “There is no modern authority which holds that the mere

effect of tending to create discontent or disaffection among His Majesty’s subjects or ill will or

hostility between groups of them, but not tending to issue in illegal conduct, constitutes the crime

[of sedition] . . . . Freedom in thought and speech and disagreement in ideas and beliefs, on

every conceivable subject, are of the essence of our life.”24

19 [1951] S.C.R. 265.

20 Id. at 283.

21 See supra note 10.

22 Id. at 285-86 (Rand, J., concurring).

23 Id. at 286, (Rand, J., concurring).

24 Id. at 288, (Rand, J., concurring).

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United Kingdom

The United Kingdom formally abolished sedition crimes in 2009, with the passage of the

Coroners and Justice Act.25

Section 73 of that statute abolished the common law offenses of

sedition and seditious libel. The relevant language appeared in the first version of the bill, and

the legislative history and debates do not shine any light on Parliament’s reasons for abolishing

sedition.26

But even prior to this statute’s enactment, criminal prosecution for sedition crimes in

the United Kingdom had been rare. In Boucher, Justice Locke quoted Stephen’s History of the

Criminal Law of England as saying that since 1852 “prosecutions for seditious libel have been so

rare in England that they can be said practically to have ceased.”27

The pre-Coroners and Justice Act case of R v. Chief Metropolitan Stipendiary Magistrate,

ex parte Choudhury shows how the United Kingdom had limited the application of its sedition

law even before abolishing it. In Choudhury the High Court in the United Kingdom considered

whether Salman Rushdie’s The Satanic Verses amounted to seditious libel. In finding that it did

not, the court followed Boucher, and stated the high standard that must be met for such a finding:

[T]he seditious intention upon which a prosecution for seditious

libel must be found is an intention to incite violence or to create

public disturbance or disorder against His Majesty or the

institutions of government. Proof of an intention to promote

feelings of ill will and hostility between different classes of

subjects does not alone establish a seditious intention. Not only

must there be proof of an incitement to violence in this connection,

but it must be violence or resistance or defiance for the purpose of

disturbing constituted authority.28

It is important to note that the “different classes of subjects” the court was referring to were

British residents of different religions: “British Muslims who are against the publication of the

book, on the one hand, and on the other, non-Muslim British citizens who are in favour of the

publication of the book on the basis of freedom of opinion or expression.”29

Therefore, even

before the United Kingdom abolished the crime of sedition altogether, it did not recognize

actions that created division between citizens of different religions to be sedition.

This understanding was not new in the United Kingdom. In justifying its interpretation

that a finding of sedition required more than an intention to incite violence against the state, the

25 Coroners and Justice Act of 2009, 2009, c. 25, § 73, available at

http://www.legislation.gov.uk/ukpga/2009/25/section/73.

26 See “Bill documents -- Coroners and Justice Act 2009,” Parliamentary business, last visited Jan. 3, 2016,

http://services.parliament.uk/bills/2008-09/coronersandjustice/documents.html; “Bill stages -- Coroners and Justice

Act 2009,” Parliamentary business, last visited Jan. 3, 2016, http://services.parliament.uk/bills/2008-

09/coronersandjustice/stages.html.

27 [1951] S.C.R. 265, 322, (Locke, J., concurring).

28 [1991] 1 QB 429, 453.

29 Id. at 452.

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Choudhury court referenced an 1853 publication by Lord Cockburn that criminalized sedition

only for acts aimed at the government, and not for acts aimed at religion. It stated:

Hence the usual objects of the offense (of seditious libel) are the

Sovereign, the Houses of Parliament, the Administrators of Justice,

Public Officers and Departments wielding and representing the

state’s power or dignity. . . . The guild of sedition is often

described of consisting of its tendency to produce public mischief .

. . and so it is. But it is not every sort of mischief that will exhaust

the description of the offense. It must be that sort of mischief that

consists in and arises out of directly and materially obstructing

public authority.30

Paulsen’s tweet was not solely aimed at religion, but at the government’s support of extremist

religion. Regardless, the strict focus of Commonwealth sedition laws against the state and not

religion weighs against Malaysia’s use of the Sedition Act.

United States

While the United States enacted a broad Sedition Act shortly after its founding,31

members of the executive, legislative, and judicial branches of government all found it to be

unconstitutional. Presidents Jefferson and Madison condemned the Act. Furthermore, President

Jefferson pardoned those who had been convicted under the Act and remitted their fines.32

In

1840, the U.S. Congress passed a law to ensure repayment of any fines levied under the Sedition

Act on the ground that it was unconstitutional.33

The 1798 statute never came before the

Supreme Court, but in one of his most famous dissents, Justice Holmes, with Justice Brandeis

joining, stated that the First Amendment had effectively abolished the common law crime of

seditious libel.34

Justice Jackson agreed in a later case.35

The Supreme Court has since declared

that “no court of last resort in this country has ever held, or even suggested, that prosecutions for

libel on the government have any place in the American system of jurisprudence.”36

30 Id. at 452-53.

31 1 Stat. 596. The 1798 statute made it a crime, punishable by a $5,000 fine and five years in prison, if:

[A]ny person shall write, print, utter or publish any false, scandalous and

malicious writing or writings against the government of the United States, or

either house of the Congress, or the President, with intent to defame or bring

them, or either of them, into contempt or disrepute; or to excite against them, or

either or any of them, the hatred of the good people of the United States.

32 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 275 (1964).

33 Id. at 276.

34 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

35 Beauharnais v. Illinois, 343 U.S. 250, 289 (1952) (Jackson, J., dissenting).

36 Sullivan, 376 U.S. at 291.

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While some state governments have had criminal syndicalism laws that punished

advocacy and assembly against the government, the Supreme Court has severely curtailed the

reach of these laws. In Brandenburg v. Ohio, the Court considered the Ohio Criminal

Syndicalism Act,37

under which a Ku Klux Klan leader was convicted. Finding the Ohio statute

unconstitutional, the Court stated that “the constitutional guarantees of free speech and free press

do not permit a state to forbid or proscribe advocacy of the use of force or of law violation

except where such advocacy is directed to inciting or producing imminent lawless action and is

likely to incite or produce such action.”38

Twenty states used to have similar laws to Ohio’s,39

but very few still have them.40

Any state law that does not draw a distinction between “the mere

abstract teaching of the moral propriety or even moral necessity for a resort to force and violence

[and] preparing a group for violent action and steeling it to such action . . . intrudes upon the

freedoms guaranteed by the First and Fourteenth Amendments” and is unconstitutional.41

India

India still has a sedition law in its criminal code, but the Indian Supreme Court has

significantly limited its application.42

In Kedar Nath v. State of Bihar, the Court held that the

sedition law applied only to speech or action that incited violence against the government.43

The

37 The Act prohibited “advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods

of terrorism as a means of accomplishing industrial or political reform” as well as “voluntarily assembling with any

society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” Ohio

Rev. Code Ann. § 2923.13

38 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

39 Id.

40 The states that still have criminal syndicalism laws include Nevada (N.R.S. 203.117), Oklahoma (21 Okl. St. Ann.

§ 1263), and Utah (U.C.A. 1953 § 76-8-902).

41 Brandenburg, 395 U.S. at 448.

42 IPC § 124A:

Sedition. Whoever by words, either spoken or written, or by signs, or by visible

representation, or otherwise, brings or attempts to bring into hatred or contempt,

or excites or attempts to excite disaffection towards, the Government established

by law in India, shall be punished with imprisonment for life, to which fine may

be added, or with imprisonment which may extend to three years, to which fine

may be added, or with fine.

Explanation 1 - The expression “disaffection” includes disloyalty and all

feelings of enmity.

Explanation 2 - Comments expressing disapprobation of the measures of the

Government with a view to obtain their alteration by lawful means, without

exciting or attempting to excite hatred, contempt or disaffection, do not

constitute an offence under this section.

Explanation 3 - Comments expressing disapprobation of the administrative or

other action of the Government without exciting or attempting to excite hatred,

contempt or disaffection, do not constitute an offence under this section.

43 Kedar Nath Singh v. State of Bihar, 1962 AIR 955.

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Indian constitution guarantees and protects freedom of speech and expression—a guarantee

referred to as “the sine qua non of a democratic form of Government” by the Kedar Nath court.

The court saw its responsibility as “drawing a clear line of demarcation between the ambit of a

citizen’s fundamental right guaranteed under Art. 19(1)(2) of the Constitution [guaranteeing the

freedom of speech and expression] and the power of the legislature to impose reasonable

restrictions on that guaranteed right in the interest of, inter alia, security of the State and public

order.”44

The line the court drew, the same one the United States and Canada drew, would save

Paulsen and Zunar from prosecution under those countries’ sedition acts. The Indian Supreme

Court articulated this line as follows: “A citizen has a right to say or write whatever he likes

about the Government, or its measures, by way of criticism or comment, so long as he does not

incite people to violence against the Government established by law or with the intention of

creating public disorder.”45

The Indian Supreme Court has also extended the constitutional protection of freedom of

speech and expression to art that criticizes the state. S Rangarajan v. P Jagjivan & Ors, the

court held that a movie that criticized government policies and operations could not be denied a

certificate for exhibition.46

The Rangarajan court used lofty language in defending the movie

that criticized the caste system, justifying its protection on democratic grounds. The court stated:

The democracy is a Government by the people via open

discussion. The democratic form of government itself demands

[of] its citizens an active and intelligent participation in the affairs

of the community. The public discussion with people participation

is a basic feature and a rational process of democracy which

distinguishes it from all other forms of government. The

democracy can neither work nor prosper unless people go out to

share their views. The truth is that public discussion on issues

relating to administration has positive value.47

India’s broad interpretation of its constitution’s protection of free speech and expression should

serve as a non-Western model for Malaysia. 48

44 Id.

45 Id.

46 S Rangarajan v. P Jagjivan & Ors, 1989 SCR (2) 204.

47 Id.

48 However, while this case law may be helpful in persuading Malaysia’s courts to limit the Sedition Act, it is

important to note that the rest of India’s government has not hewed as tightly to this limitation as would be ideal.

Despite the Supreme Court’s soaring language, recent news reports indicate that sedition charges are still prevalent

in India today. P. D. T. Achary, “Render Sedition Unconstitutional,” The Hindu (Oct. 14, 2015),

http://www.thehindu.com/opinion/lead/sedition-legislation-meant-to-suppress-the-voice-of-indian-

people/article7758013.ece; Shaju Philip, “Youth Slapped With Sedition Charges for Not Standing to National

Anthem, Gets Bail,” Indian Express (Sept. 22, 2014), http://indianexpress.com/article/india/india-others/youth-

slapped-with-sedition-charges-for-not-standing-to-national-anthem-gets-bail/; Saptarishi Dutta, “Sedition in India: A

(continued…)

12

South Africa

The crime of sedition continues to exist at common law in South Africa, but the country’s

case law on related issues indicates a strong protection of freedom of expression that limits its

scope.49

In 1992, before the fall of apartheid, the South African Supreme Court stated in a

defamation case that “the general approach properly adopted by our courts [towards defamation

is] that a wide latitude should be allowed in public debate on political matters.”50

South Africa’s

post-apartheid constitution explicitly guarantees freedom of expression and the press, subject to

certain exceptions, one of which is “incitement of imminent violence.”51

Under the new

constitution, courts have articulated a strong defense for freedom of expression that encompasses

criticism of the state, suggesting that only an intentional incitement of violence would currently

qualify as sedition. In National Media Ltd. v. Bogoshi, the South African Supreme Court stated:

“The success of our constitutional venture depends upon robust criticism of the exercise of

power.”52

Australia

In 2009, Australia amended its sedition laws, renaming that section of the criminal code

“Urging violence and advocating terrorism.”53

There are four such crimes: “urging violence

against the Constitution etc.”; “urging violence against groups”; “urging violence against

members of groups”; and “advocating terrorism”.54

All of the crimes require the actor both to

intentionally urge the use of force or violence and to intend that the force or violence will occur.

In fact, the Australian Department of the Environment, Water, Heritage and the Arts stated that,

while the country’s previous sedition offenses “were not designed to capture media

commentators, satirists, artists, activists, or other persons acting in good faith when reporting or

criticising the Government’s policies,” the amended law would “provide important clarification

to the operation of the urging violence offences to ensure that legitimate expression is not

captured by these offenses.”55

International Standards of Freedom of Expression

Overview of International Standards

Quick History,” Wall Street Journal (Sept. 14, 2012), http://blogs.wsj.com/indiarealtime/2012/09/14/trivedi-case-

sets-off-sedition-debate/.

49 Article 19 Global Campaign for Free Expression, “Memorandum on the Malaysian Sedition Act 1948,” July 2003,

p. 8.

50 Argus Printing & Publishing Co. Ltd. v. Inkatha Freedom Party, [1992] ZASCA 63.

51 Constitution of the Republic of South Africa, Ch. 2, Section 16.

52 [1998] ZASCA 94 (quoting Holomisa v. Argus Newspapers Ltd., 1996 (2) SA 558 (W), at 608J-609D).

53 Criminal Code Part 5.1 Section 80.2.

54 Id.

55 “Overview of Proposed Changes to Australia’s Sedition Laws,” Australian Government, Department of the

Environment, Water, Heritage and the Arts (July 2009), http://arts.gov.au/sites/default/files/pdfs/sedition-laws.pdf.

13

Malaysia is a member of the United Nations and therefore bound to respect the rights and

guarantees set out in the Universal Declaration of Human Rights (“UDHR”). Article 19 of the

UDHR states that “[e]veryone has the right to freedom of opinion and expression; this right

includes freedom to hold opinions without interference and to seek, receive and impart

information and ideas through any media and regardless of frontiers.”56

And Article 29 of the

UDHR states that restrictions on such freedoms must be “determined by law solely for the

purpose of securing due recognition and respect for the rights and freedoms of others and of

meeting the just requirements of morality, public order and the general welfare in a democratic

society.”57

Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”)

contains similar language.58

These protections have routinely been extended to journalism,

criticism of government, and human rights discourse.59

Under this international standard, any

restriction on the right to freedom of expression must be (1) provided by law; (2) for the purpose

of safeguarding a legitimate public interest; and (3) be necessary to secure that interest.60

The United Nations Human Rights Committee (“UNHRC”), the body charged with

authoritative interpretation and enforcement of the ICCPR, has commented that “[e]xtreme care

must be taken” to ensure that sedition laws are not invoked “to suppress or withhold from the

public information of legitimate public interest that does not harm national security or to

prosecute journalists, . . . human rights defenders, or others, for having disseminated such

information.”61

In particular, restrictions on the freedom of expression “must not be overbroad,”

especially with regard to the “particularly high” value of “uninhibited expression” in

“circumstances of public debate in a democratic society concerning figures in the public and

56 Universal Declaration of Human Rights, Art. 19, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948), available

at http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf.

57 Id. Art. 29.

58 International Covenant on Civil and Political Rights, Art. 19, Mar. 23, 1976, 999 U.N.Y.S. 171, available at

https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf. Although Malaysia

has not adopted the ICCPR, it has been widely adopted across the globe and therefore represents international norms

of freedom of expression.

59 See, e.g., U.N. Human Rights Committee, Velichkin v. Belarus, U.N. Doc. A/CCPR/C/85/D/1022/2001 (Oct. 20,

2005) (extending freedom of expression to discussion of human rights); U.N. Human Rights Committee, Mavlonov

v. Uzbekistan, U.N. Doc. A/CCPR/C/95/D/1334/2004 (Mar. 19, 2009) (extending freedom of expression to

journalism critical of government); Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt, Comm. No.

323/06 (African Commission on Human and Peoples’ Rights, Mar. 1, 2011) (extending freedom of expression to

journalism related to political protest); U.N. Human Rights Committee, Dissanayake v. Sri Lanka, U.N. Doc.

A/CCPR/C/93/D/1373/2005 (July 22, 2008) (extending freedom of expression to criticism of government).

60 See, e.g., ICCPR Art. 19(3).

61 U.N. Human Rights Comm., General Comment No. 34, Article 19: Freedoms of opinion and expression, ¶ 30

(July 29, 2011) (hereinafter “Article 19 Comment”), available at

http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf. For example, a “restriction on the issuing of a statement

in support of a labour dispute, including for the convening of a national strike, was not permissible on the grounds of

national security.” Id.

14

political domain.”62

And “the mere fact that forms of expression are considered to be insulting

to a public figure is not sufficient to justify the imposition of penalties” because “all public

figures . . . are legitimately subject to criticism and political opposition,” such that states “should

not prohibit criticism of institutions, such as the army or the administration.”63

Finally,

restrictions on mass media “may never include a ban on a particular publication unless specific

content, that is not severable, can be legitimately prohibited under Article 19,” and media outlets,

publishers, journalists, websites, and any other such information dissemination system may not

be penalized or prohibited from publishing material “solely on the basis that it may be critical of

the government or the political social system espoused by the government.”64

The U.N. Special Rapporteur on the promotion and protection of the right to freedom of

opinion and expression commented that “prison terms are both reprehensible and out of

proportion to the harm suffered by the victim” regarding offenses such as insulting the head of

state or publishing “false” or “alarmist” information.65

“In all such cases, imprisonment for the

peaceful expression of an opinion constitutes a serious violation of human rights.”66

And the

Special Rapporteur’s report on his 1998 visit to Malaysia specifically noted that Malaysia’s

Sedition Act “fail[s] to offer adequate protection of the right to freedom of opinion and

expression as provided for by applicable international human rights law, including article 19 of

the [UDHR].”67

In addition to these international standards, all three regional human rights instruments

contain similar standards with respect to the protection of freedom of expression. Article 10 of

the European Convention on Human Rights, Article 13 of the American Convention on Human

Rights (“ACHR”), and Article 9 of the African Charter on Human and Peoples’ Rights (“African

Charter”), each contain similar language to Article 19 of the ICCPR.68

The European Court of

62 Id. ¶ 34.

63 Id. ¶ 38.

64 Id. ¶¶ 39, 42–43.

65 Abid Hussain (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and

Expression), Rep. on Protection and Promotion of the Right to Freedom of Opinion and Expression, U.N. Doc.

E/CN.4/2000/63, ¶ 205 (Jan. 18, 2000), available at http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G00/102/59/PDF/G0010259.pdf?OpenElement.

66 Id.; see also Abid Hussain, Rep. on Protection and Promotion of the Right to Freedom of Opinion and Expression,

U.N. Doc. E/CN.4/1999/64, ¶ 28 (Jan. 29, 1999), available at http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G99/107/66/PDF/G9910766.pdf?OpenElement (“The only legitimate purpose

of . . . insult laws is to protect reputations . . . these laws should never be used to prevent criticism of government or

even for such reasons as maintaining public order for which specific incitement laws exist[.]”).

67 Abid Hussain, Rep. on the Mission to Malaysia, U.N. Doc. E/CN.4/1999/64/Add.1, ¶ 66 (Dec. 23, 1998),

available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G98/052/96/PDF/G9805296.pdf?OpenElement

68 See European Convention on Human Rights Art. 10, available at

http://www.echr.coe.int/Documents/Convention_ENG.pdf; American Convention on Human Rights Art. 13,

available at http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.pdf; African Charter

(continued…)

15

Human Rights (“ECHR”) has held that “freedom of political debate is at the very core of the

concept of a democratic society” such that “[t]he limits of acceptable criticism are, accordingly,

wider as regards a politician as such than as regards a private individual.”69

The Inter-American

Commission on Human Rights issued a report noting that desacato laws (laws against insulting,

threatening, or injuring public officials) are incompatible with Article 13 of the ACHR because

they fail to meet the principle of necessity and do not pursue legitimate ends.70

Finally, the

African Commission on Human and Peoples’ Rights adopted a declaration stating that

“[f]reedom of expression should not be restricted on public order or national security grounds

unless there is a real risk of harm to a legitimate interest and there is a close causal link between

the risk of harm and the expression,”71

and has called for the repeal of “insult laws which impede

freedom of speech” across Africa.72

The UNHRC has commented—with respect to the related offense of criminal

defamation—that “imprisonment is never an appropriate penalty” under Article 19 of the

ICCPR.73

In addition, each of the regional human rights courts have held that prison terms

violate the applicable human rights instruments described above when imposed for crimes that

infringe on the freedom of expression, such as criminal defamation and sedition laws.

In Cumpănă & Mazăre v. Romania, two Romanian journalists that published a newspaper

article and accompanying cartoon critical of a former deputy mayor and judge were charged with

criminal defamation and insult.74

They were convicted of both crimes and sentenced to seven

months in prison, fined, and prohibited from working as journalists for one year following their

prison sentences.75

The ECHR found that the publication was “indisputably a matter of general

interest to the local community which the applicants were entitled to bring to the public’s

attention through the press,”76

and held that “the imposition of a prison sentence for a press

offence will be compatible with journalists’ freedom of expression as guaranteed by Article 10 of

on Human and Peoples’ Rights Art. 9(2), June 27, 1981, available at

http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf.

69 Lingens v. Austria, 8 Eur. Ct. H.R. (ser. A) at 103 (1986).

70 Inter-American Commission on Human Rights, Annual Report 1994, Rep. on the Compatibility of ‘Desacato’

Laws with the American Convention on Human Rights, OEA/Ser.L/V/II.88, Doc. 9 rev. (1995), available at

http://cidh.oas.org/annualrep/94eng/chap.5.htm.

71 African Comm’n on Human and Peoples’ Rights, Declaration of Principles on Freedom of Expression in Africa

(2002), ACHPR/Res.62(XXXXII)02, available at

http://www.achpr.org/files/sessions/32nd/resolutions/62/achpr32_freedom_of_expression_eng.pdf.

72 African Comm’n on Human and Peoples’ Rights, Resolution on Repealing Criminal Defamation Laws in Africa

(Nov. 24, 2010), Res. 169, available at http://www.achpr.org/sessions/48th/resolutions/169/.

73 Article 19 Comment ¶ 47.

74 Cumpănă & Mazăre v. Romania, App. No. 33348/96, Eur. Ct. H.R., ¶¶ 19–21 (Dec. 17, 2004), available at

http://hudoc.echr.coe.int/eng?i=001-67816.

75 Id. ¶ 37.

76 Id. ¶ 95.

16

the Convention only in exceptional circumstances, notably where other fundamental rights have

been seriously impaired, as, for example, in the case of hate speech or incitement to violence.”77

Applying this standard, the ECHR held that although the journalists were properly convicted of

the crimes charged, the sanctions imposed violated Article 10.78

This was particularly so with

regard to the prison sentence, for which there was “no justification whatsoever” for such a

sanction which “by its very nature, will inevitably have a chilling effect.”79

. The case supports

the notion that prison sentences for sedition—particularly for up to three years under the

Malaysian Sedition Act, as opposed to the seven-month sentence in Cumpănă—violate

international human rights principles even if the defendants are liable for the underlying

substantive offenses.

The Inter-American Court of Human Rights (“IACHR”) has similarly held that

imprisonment is not a valid sanction for statements of opinion regarding public officials. In

Kimel v. Argentina, an Argentinian journalist was convicted of criminal defamation for the

publication of a book that was critical of judicial conduct during the investigation of murders

committed during a military dictatorship more than a decade prior.80

The journalist was

substantially fined and sentenced to a one-year suspended imprisonment term.81

The IACHR

found that this punishment was excessive in violation of Article 13 of the ACHR.82

In doing so,

the court cited Cumpănă,83

and noted that “an opinion cannot be subjected to sanctions, even

more so where it is a value judgment on the actions of a public official in the performance of his

duties,” such that the excessive fine and prison term was “overtly disproportionate” to the

charged conduct.84

Thus, under IACHR principles, Paulsen and Zunar cannot be subject to

criminal sanctions, especially imprisonment, for their expressions of opinion that are critical of

the judiciary or other government officials.

Finally, in Lohé Issa Konaté v. Burkina Faso, the African Court on Human and Peoples’

Rights (“ACHPR”) addressed a criminal prosecution for, among other charges, public insult,

against a journalist for articles critical of public officials.85

The court imposed sanctions of

77 Id. ¶ 115.

78 Id. ¶ 110, 122.

79 Id. ¶ 116.

80 Kimel v. Argentina, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 177, ¶¶ 41–42 (May 2, 2008).

81 Id. ¶ 45.

82 Id. ¶ 13.

83 Id. ¶ 78 n.57.

84 Id. ¶¶ 93–94. See also Palamara-Iribarne v. Chile, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C)

No. 135, ¶¶ 88, 95 (Nov. 22, 2005) (Imprisonment for a minimum of sixty-one days for criticism of the Navy

violated Article 13 because the “sanctions . . . were disproportionate to the criticism leveled at government

institutions and their members, thus suppressing debate, which is essential for the functioning of a truly democratic

system, and unnecessarily restricting the right to freedom of thought and expression.”).

85 Lohé Issa Konaté v. Burkina Faso, App. No. 004/2013, Afr. Ct. H.P.R., ¶¶ 3–4 (Dec. 17, 2014), available at

http://www.ijrcenter.org/wp-content/uploads/2015/02/Konate-Decision-English.pdf.

17

twelve months imprisonment, substantial fines and civil damages, and a ban on the publication of

the newspaper at issue for six months.86

The ACHPR held that the conviction violated Article 9

of the African Charter and Article 19 of the ICCPR.87

In so doing, the court noted that the state

“failed to show how a penalty of imprisonment was a necessary limitation to freedom of

expression in order to protect the rights and reputation of members of the judiciary,” and that

prison terms imposed pursuant to the relevant statutes were “a disproportionate interference in

the exercise of the freedom of expression by journalists in general and especially in the

Applicant’s capacity as a journalist.”88

Analysis of “Seditious Tendency” and Lack of Intent Under International Norms

The Sedition Act is grossly out of step with international norms in several respects, but

this memorandum will focus specifically on the Act’s broad definition of “seditious tendency”

and its lack of any intent requirement. Paulsen is a lawyer charged under the Sedition Act for

tweets critical of portions of the Malaysian government for promoting extremist interpretations

of Islam in contrast to the government’s public commitment to combat such extremist

ideologies.89

Zunar is a political cartoonist charged under the Sedition Act for tweets critical of

the judiciary in Malaysia.90

The Sedition Act criminalizes any speech (or other act, attempt, or conspiracy) which has

a “seditious tendency.” As relevant here, seditious tendency is defined to include a tendency “to

bring into hatred or contempt or to excite disaffection against any Ruler or against any

Government . . . [or] against the administration of justice in Malaysia or in any State” or “to

question any matter, right, status, position, privilege, sovereignty or prerogative established or

protected by” listed sections of the Malaysian Constitution relating to citizenship and the

sovereignty and immunity of Malaysian government officials. In addition, the Sedition Act

expressly states that the defendant’s intent is “irrelevant.”91

These aspects render the Sedition

86 Id. ¶¶ 5–6.

87 Id. ¶ 176.

88 Id. ¶¶ 163–64.

89 Paulsen’s January 9, 2015 tweet stated: “Jakim is promoting extremism every Friday. Govt needs to address that

if serious about extremism in Msia.”

90 S See Charge Sheet of Zulkiflee Bin Sm Anwaraul Haque (Zunar); See also Index on Censorship, Zunar: “I Will

never stop. It is my right as a citizen to express my view, October 29, 2015,

https://www.indexoncensorship.org/2015/10/zunar-i-will-never-stop-it-is-my-right-as-a-citizen-to-express-my-view/

91 Sedition Act § 3(3). The Act includes a limited defense wherein speech may not be deemed seditious “by reason

only that” it tends to show that (1) “any Ruler has been misled or mistaken in any of his measures”; (2) “point out

errors or defects in any Government or constitution . . . or in legislation or in the administration of justice with a

view to the remedying of the errors or defects”; or (3) to persuade citizens “to attempt to procure by lawful means

the alteration of any matter”; or (4) “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.” Sedition Act § 3(2). Other

than the first defense listed above, however, none of the defenses apply to offenses which “question any matter,

right, status, position, privilege, sovereignty or prerogative” of the government provided for by certain sections of

the Constitution, which renders the defense toothless because it mostly does not apply to this broad catch-all offense.

18

Act grossly overbroad such that it fails to meet any of the three requisite conditions for a

restriction on freedom of expression and thus violates Malaysia’s obligations under international

law.

Provided By Law

Under the international human rights standards discussed above, restrictions on freedom

of expression must be provided by law. Although the Sedition Act is a statute enacted pursuant

to a constitutional grant of authority that alone does not satisfy the international requirement that

the Act’s restrictions must be provided by law. In order for a restriction to be provided by law, it

“must be formulated with sufficient precision to enable an individual to regulate his or her

conduct accordingly” and “may not confer unfettered discretion for the restriction of freedom of

expression on those charged with its execution.”92

The IACHR decision in Usón Ramírez v.

Venezuela illustrates the operation of the “provided by law” requirement.93

A retired public

official was convicted and sentenced to five years and six months imprisonment for “slander

against the National Armed Forces” based on statements he made during a television interview.94

The court found that the legality principle requires criminal laws “to use strict and unequivocal

terms, clearly restricting any punishable behaviors,” which “involves a clear definition of the

incriminatory behavior, setting its elements, and defining the behaviors that are not punishable or

the illicit behaviors that can be punishable with non-criminal measures.”95

The court held that

the law at issue did not “establish the elements that may offend, slander, or disparage” and did

not “specify whether it is important that the active subject attribute facts that damage the honor

or whether it suffices simply to give an offensive or disparaging opinion, without attributing any

illicit acts, for example, for the imputation of the crime.”96

This “ambiguity . . . raises doubts

and opens possibilities for the abuse of discretion,” and the law was therefore “too vague and

ambiguous in its formulation to comply with the legality requirements” of Article 13 of the

ACHR.97

The gross overbreadth of the Sedition Act, and particularly the term “seditious tendency,”

renders the Act far too vague to enable individuals to conform their conduct to the law, and

92 Article 19 Comment ¶ 25. Relatedly, Articles 14 and 15 of the ICCPR provide certain fair trial rights, including

the right to be presumed innocent and the right to be informed of the charge, both of which are potentially

implicated here due to the vagueness of the Sedition Act. ICCPR Art. 14–15. According to the U.N. Human Rights

Committee, the right to be informed “applies to all cases of criminal charges, including those of persons not in

detention,” such as Paulsen and Zunar. General Comment No. 13 (Art. 14), United Nations Compilation of General

Comments, ¶ 8.

93 Usón Ramírez v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C)

No. 207 (Nov. 20, 2009).

94 Id. ¶¶ 37–38.

95 Id. ¶ 55.

96 Id. ¶ 56.

97 Id. ¶¶ 56–57; see also Kimel, ¶¶ 63–67 (Criminal defamation prosecution in which the court “did not adhere to the

original criminal definition applied” violated Article 13 of the ACHR because criminal laws “must be formulated

previously, in an express, accurate, and restrictive manner.”).

19

therefore fails the provided by law requirement. The definition of “seditious tendency” includes

vague, subjective, and undefined terms such as “hatred,” “contempt,” “disaffection,” and

“feelings of ill will and enmity.” Thus, neither Paulsen nor Zunar are able to “ascertain what

sorts of expression are properly restricted and what sorts are not” under the Sedition Act, in

violation of international norms.98

As in Usón Ramírez, even though the Sedition Act is an

enacted statute, the ambiguity of these terms does not satisfy the provided by law requirement

under international standards.

Legitimate Purpose

Restrictions on freedom of expression “must be applied only for those purposes for which

they were prescribed and must be directly related to the specific need on which they are

predicated.”99

As relevant to the Sedition Act, the only potentially legitimate purposes under

international norms are national security and public order. Paulsen and Zunar are both being

charged under § 4(1)(c) of the Sedition Act for printing, publishing, or distributing “any seditious

publication.”100

In Paulsen’s case, the “seditious tendency” most likely derives from charges that

his tweet would tend to “bring into hatred or contempt or to excite disaffection” against the

Malaysian government or questions a “matter” or “prerogative” of the Constitution. In Zunar’s

case, the “seditious tendency” most likely derives from charges that his tweets would tend to do

the same with regard to the judiciary and its relationship to the government.

There is little to no logical connection between “bringing [the Malaysian government]

into hatred or contempt” and national security or public order. And the link is even more

tenuous with respect to the prohibition on questioning “any matter” regarding, for instance, the

sovereignty of the Malaysian government. Paulsen and Zunar are therefore being prosecuted

“solely on the basis” of speech that “may be critical of the government or the political social

system espoused by the government,” in violation of Article 19 of the ICCPR and several other

international human rights instruments. As the Inter-American Commission on Human Rights

has explained in reference to desacato laws that—like the Sedition Act—are ostensibly intended

to protect public order, such laws often have the opposite effect:

Finally and most importantly, the Commission notes that the

rationale behind desacato laws reverses the principle that a

properly functioning democracy is indeed the greatest guarantee of

public order. These laws pretend to preserve public order precisely

by restricting a fundamental human right which is recognized

internationally as a cornerstone upon which democratic society

rests. Desacato laws, when applied, have a direct impact on the

open and rigorous debate about public policy that Article 13 [of the

ACHR] guarantees and which is essential to the existence of a

democratic society. In this respect, invoking the concept of

98 Article 19 Comment ¶ 25.

99 Article 19 Comment ¶ 22.

100 See Charge Sheet for Eric Paulsen; See Charge Sheet for See Charge Sheet of Zulkiflee Bin Sm Anwaraul Haque

(Zunar).

20

“public order” to justify desacato laws directly inverts the logic

underlying the guarantee of freedom of expression and thought

guaranteed in the Convention.101

The U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion

and expression has expressed similar concerns with the use of national security to justify

limitations on the freedom of expression, “The use of an amorphous concept of national security

to justify invasive limitations on the enjoyment of human rights is of serious concern. The

concept is broadly defined and is thus vulnerable to manipulation by the State as a means of

justifying actions that target vulnerable groups such as human rights defenders, journalists or

activists.”102

As applied to Paulsen and Zunar, the Sedition Act effectively stifles “open and rigorous

debate about public policy,” specifically the religious extremist tendencies of certain portions of

the Malaysian government and judicial corruption, thus undermining the public order it is

intended to preserve. Particularly given the threat of imprisonment for up to three years per

violation (up to five years for subsequent offenses) for their peaceful expressions of opinion, the

prosecution of Paulsen and Zunar is a serious violation of their human rights under international

norms. Under these international principles, references in the Malaysian Constitution to national

security and public order as justifications for laws such as the Sedition Act do not suffice to meet

the legitimate purpose requirement.

Necessity

The final prong requires that restrictions on the freedom of expression “must be

‘necessary’” for the achievement of the legitimate purpose, and “must not be overbroad.”103

This

is particularly so with regard to the matters of public debate, such as those that are at issue here.

The broad definition of “seditious tendency” clearly violates the international human rights

principle that restrictions on freedom of expression must be “necessary” in democratic society,

proportional to the harm caused, and not overbroad relative to the objectives of the restriction.

“Seditious tendency” is broadly defined to apply to “any Ruler,” “any Government,” and the

questioning of “any matter” in the Constitution regarding citizenship or government sovereignty,

among others.104

Nor are the penalties under the Act proportional to the harms caused, as

peaceful expressions of opinion by individuals such as Paulsen and Zunar are subject to arrests

without warrants, imprisonment for up to three years for the first violation and up to five years

101 Inter-American Commission on Human Rights, Report on the Compatibility of “Desacato” Laws With the

American Convention of Human Rights, Chapter 5, available at http://cidh.oas.org/annualrep/94eng/chap.5.htm.

102 Frank La Rue (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and

Expression), Rep. on the Promotion and Protection of the Right to Freedom of Opinion and Expression, U.N. Doc.

A/HRC/23/40, ¶ 60 (Apr. 17, 2013), available at

http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf.

103 Article 19 Comment ¶¶ 33–34.

104 See supra note 3.

21

for subsequent violations, excessive fines, and the restriction or banning of any publication that

publishes their content.

The principle of necessity is illustrated by the ECHR’s decision in Cumpănă, which as

described above involved a seven-month prison sentence, substantial fines, and a prohibition

from working as journalists for one year against two Romanian journalists for criminal

defamation and insult offenses.105

In determining that the “domestic courts in the instant case

went beyond what would have amounted to a ‘necessary’ restriction on the applicants’ freedom

of expression,” the court found that these sanctions were “undoubtedly very severe.”106

The

court emphasized “the chilling effect that the fear of such sanctions has on the exercise of

journalistic freedom of expression,” which “works to the detriment of society as a whole” and is

“a factor which goes to the proportionality, and thus the justification, of the sanctions

imposed.”107

The court found that in the context “of a debate on a matter of legitimate public

interest,” there was “no justification whatsoever for the imposition of a prison sentence,” and that

the one-year ban from working as journalists “was particularly severe and could not in any

circumstances have been justified by the mere risk of the applicants’ reoffending,” “was not

justified by the nature of the offences,” and further “contravened the principle that the press must

be able to perform the role of a public watchdog in a democratic society.”108

Cumpănă is

therefore particularly applicable to Paulsen and Zunar’s cases under the Sedition Act, which

similarly allows for sanctions that include imprisonment, substantial fines, and prohibitions from

working as journalists.109

Thus, the criminal prosecution of Paulsen and Zunar under the

Sedition Act, which could lead to sanctions even more severe than those in Cumpănă, clearly

violates the necessity principle under international legal standards.110

Finally, the Sedition Act is a strict liability statute, as it expressly renders the defendant’s

intent irrelevant to liability. Paulsen and Zunar may therefore be convicted under the Act even if

their sole intention was to, for instance, show that the government’s policies are “mistaken,” as

provided for under the Act. Because their intent is irrelevant, if individuals happen to feel

contempt for the Malaysian government as a result of tweets, Paulsen and Zunar may be liable

under the Act regardless of their intentions. This independently renders the Sedition Act

105 See supra notes 67–68 and accompanying text.

106 Cumpănă, ¶¶ 112, 121.

107 Id. ¶ 114.

108 Id. ¶¶ 116–19.

109 See supra note 6 and accompanying text.

110 See also Konaté, ¶¶ 163, 165 (“In essence, the Court notes that, for now, defamation is an offense punishable by

imprisonment in the legislation of the Respondent State, and that the latter failed to show how a penalty of

imprisonment was a necessary limitation to freedom of expression in order to protect the rights and reputation of

members of the judiciary. . . . Apart from serious and very exceptional circumstances for example, incitement to

international crimes, public incitement to hatred, discrimination or violence or threats against a person or a group of

people, because of specific criteria such as race, colour, religion or nationality, the Court is of the view that the

violations of laws on freedom of speech and the press cannot be sanctioned by custodial sentences, without going

contrary to the above [international law] provisions.”).

22

overbroad and further violates the UNHRC principle that the “mere fact that forms of expression

are considered to be insulting to a public figure is not sufficient to justify the imposition of

penalties.”111

In finding that a Venezuelan statute violated Article 13 of the ACHR, the IACHR

in Usón Ramírez noted that the statute imposed liability “even when the active subject did not

have the intent to injure, offend, or disparage the passive subject.”112

The Sedition Act is

similarly invalid here on the independent ground that Paulsen and Zunar may be criminally liable

under the Act regardless of their intent.

Conclusion

Malaysia’s Sedition Act is far more onerous than international norms proscribe and

fellow Commonwealth countries currently employ. Sedition as an offense originated in the

United Kingdom, but the United Kingdom has since abolished it. Australia has followed suit, the

United States has no federal sedition law, and the highest courts in Canada, India, and South

Africa have significantly limited the application of their countries’ sedition laws in ways that

ensure those laws would not apply to Paulsen and Zunar’s conduct. As it stands, the Sedition

Act does not adequately protect the freedom of expression granted by the UDHR, and is far too

broad to meet the international standards for restrictions on freedom of expression under the

ICCPR.

111 Article 19 Comment ¶ 38.

112 Usón Ramírez, ¶ 56.