from Malaysiakini website: Columns

Press-ing free-speech issues

by Salbiah Ahmad

 1:04pm Tue Jan 28th, 2003
A much loved retired law professor who has taught countless lawyers on both sides of the Causeway, confided over teh tarik in Bangsar recently, that it is freedom of the press that rights activists should be extremely jealous in protecting over preventive detention.

I am reminded of that trick question about right of speech and right to food, both being basic rights, but without speech, o­ne’s right to food becomes non-existent.

Some of us are still reeling over the immediate police response to the Umno Youth complaint as opposed to numerous other complaints lodged by the public and opposition politicians. 

Umno Youth headed by (information chief) Azimi Daim lodged the report o­n Friday, Jan 17 and police raided malaysiakini on Monday, Jan 20. Fifteen computers and four servers were seized in the raid and caused disruption in the news room for some 10 hours that day. Malaysiakini Editor-in-Chief Steven Gan and four sub-editors were called for questioning o­n Tuesday, Jan 21 and Wednesday, Jan 22, each for several hours.

Most attribute the quick police action to the political privilege of a party that has held the reins of power for far too long. It takes a while before we also realise that the unhappy state of affairs could o­nly come about because our institutions of democracy and our system of checks and balances are really not quite up to scratch yet. How else can o­ne explain away the use of police resources at the behest of the party in power?

Umno Youth - in a Jan 27 editorial o­n its official website entitled 'Police report: Was Umno Youth’s action unseemly?' - claim that it was acting responsibly in defending race, religion and country. It reiterates, among other aspects, that the special privileges accorded to the Malays and bumiputera are  "...issues that do not need debating as they are absolute and final."

Memories are short with Umno Youth. Why, the Prime Minister himself on several occasions cried and decried on national television the problems facing Malays today which ensued from special privileges. Not a single Malay filed a police report and no police action was taken against him for sedition. 


The problem with sedition

“Sedition” is not defined in the Sedition Act 1948. The word defined is “seditious”. Section 2 states that ‘seditious’, when applied to or used in respect of any act, speech, words, publication or other thing qualifies the act, speech, words, publication or other thing as one having a seditious tendency. 

The Act then sets out some six situations of a ‘seditious tendency’.

This includes any act, speech, word, publication or other thing that brings into hatred or contempt or excites disaffection against any Ruler or government, or the administration of justice. 

It is also seditious if there is a tendency to promote feelings of ill will and hostility between different races and classes of Malaysians or to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by specific provisions of the Federal Constitution.

Sedition, seditious and seditious tendency, are not defined by describing some characteristic that is discoverable in the act, speech, word or publication. The Sedition Act merely sets forth a status under the law. 

What is sedition can be pretty subjective. In other areas, subjective responses are not usually different. For example, we may as a matter of fact know that grass is green and the sky is blue. Two or more people looking at a glass of milk from different viewpoints, times and places will most probably report it to be white. 

Standpoints change

The same cannot be said of sedition. What we are dealing with here are responses that are inconsistent and irreconcilable because they change when standpoints change. Thus UmnoYouth and Dr Mahathir may have very different views on whether questioning the special privileges of the Malays and bumiputera is sedition.

These reflect responses which we cannot rely on being the same for any two people. What may be apparent is that we are dealing with something that does not fall into the category of facts nor responses but of opinions.

Defining sedition/seditious in terms of a ‘tendency’ is really problematic for the simple reason that if we were to arrest and prosecute people for their tendency to harm, no citizen can claim innocence. Punishing a person for a tendency is punishing before that person is guilty, for fear that the person should be guilty. 

In other words, this allows the government to prosecute and punish any person on the basis of a tendency the person might possess and permits the prosecution of anyone whom the government finds objectionable without evidence of actual harm.

Censoring speech

Roman magistrates who took the census of Roman citizens were also tasked to regulate the morals of the people. The magistrates are called Censors. 

Censorship aims at controlling ideas. Censors face a major difficulty in that they cannot demonstrate that the material they want to suppress actually poses a danger to society.

Censors consistently target opinions that they find offensive and which for that reason alone they assume to be false or dangerous. Thus censorship arises when and precisely because someone cannot convincingly show to others that the opinion which offends him or her is indeed truly false or dangerous.

Umno Youth may insist that a certain letter in malaysiakini which invited its wrath, is false, but that very assertion should not warrant its censorship. A false statement may still make a valuable contribution to public debate on the matter. Some tolerance for such statements is necessary to prevent self-censorship.

The function of speech is to assist us in discussion with others to make judgments as to what to believe. Freedom of speech and communication should result in new information or new ways of looking at the available information. The more speech we are exposed to, the less likely we will miss something important for the evaluation of competing views.

Two-part test

What should be the proper test between protected free speech (even if false) and illegal or offensive speech to be applied on the facts of the present brouhaha?

The Sedition Act does not provide much assistance and much is left to our judges to formulate principles. Why should Umno Youth’s speech and that of the Prime Minister on the special privileges of the Malays count as protected speech, but not anyone else? 

In the US, the Supreme Court has formulated the ‘clear and present danger’ test. In the 1969 case of Bradenburg v. Ohio, a Ku Klux Klan leader made a speech declaring that white people should take revenge o­n the president, Congress and the Supreme Court.

He was convicted of violating a law that forbade “advocacy of the duty, necessity or propriety of crime, sabotage, violence or unlawful means of terrorism as a means of accomplishing industrial or political reform”.

The court decided that a law cannot forbid speech even o­ne which advocates illegal or violent action unless a two-part test is met. The speech in question must be directed to inciting or producing imminent lawless action and the speech must be likely to incite or produce such an action.

The letter considered offensive to Umno Youth was uploaded on Jan 9 and nothing untoward has happened save for the report lodged by Umno Youth and the consequent police raid of malaysiakini’s premises. If any, it was the report and raid which galvanised people into action in support of the public forum created by malaysiakini; the letter and its contents are a non-issue. 

It is said that in the world of the unique communicative power of cyberspace, the remedy for alleged offensive speech is more speech. At the end of the day what concerns us may not even be the merits of the present controversy. 

The point may be whether we should advocate for the injection of a greater democracy into our system. It will be emphasised that the central purposes of free speech and free press is to enable our government processes to work through an open and informed discussion of political issues and to check our government when it gets out of bounds. 

Laws which tend to restrict the operation of democracy cannot be subject to an ordinary, majoritarian (and therefore democratic?), deferential-to-legislator review, but must be subject to a stricter extra-legislative review.

And we do remember that the first-past-the-post system does not in any case, place a party with majority of votes in power.