Where does free speech end and sedition begin in Malaysia?

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The Dividing Line Between Freedom of Speech and Sedition in Malaysia

In Malaysia, the boundary between the fundamental right to freedom of speech and the offence of sedition is drawn by the courts, focusing on the tendency of the speech rather than solely the speaker's intent. While criticism of government policy is permissible, it crosses into sedition when it has the potential to incite hatred, contempt, or disaffection towards the government. This principle has been consistently articulated and applied in various judicial pronouncements.
Criticism of Government Policy vs. Seditious Tendency

High Court Judge Raja Azlan Shah, in the case of Public Prosecutor V Ooi Kee Saik & Ors [1971], clarified that freedom of speech is not absolute and ceases when it breaches the law. The critical distinction lies in the purpose and effect of the speech. If the speech serves as criticism of government policy aimed at achieving change or reform, it is generally considered lawful. However, if the words, when read naturally, clearly demonstrate a tendency to stir up hatred, contempt, or disaffection against the government, they are deemed seditious under Section 3 of the Sedition Act 1948. The court in Ooi Kee Saik found that the speech in question went beyond legitimate expression and exhibited a seditious tendency.
Fair and Temperate Criticism is Permissible

Further elaborating on this distinction, High Court Judge Abdul Hamid in Public Prosecutor v Fan Yew Teng [1975] stated that the Sedition Act is not intended to target law-abiding citizens or fair criticism that points out errors or defects in the government or the Constitution. Such criticism is lawful and actionable as long as it is fair and temperate and does not produce the consequences listed in Section 3 of the Act. This implies that even strong criticism is acceptable if it remains within the bounds of fairness and does not incite negative sentiments towards the government.
Irrelevance of Intent When Tendency is Evident

The judicial stance also emphasizes that the intention of the accused is secondary if the words themselves possess a seditious tendency. High Court Judge Ajaib Singh, in PP v Ooi Kee Saik [1979], held that the intention of the speaker is irrelevant if the words have a seditious tendency as defined by the Sedition Act. This means that even if the speaker did not intend to incite hatred or disaffection, they can still be held liable if their words, by their nature, have that effect. Therefore, careful consideration must be given to the potential impact of spoken or published words, ensuring they do not inadvertently exhibit a seditious tendency.
Words Expressing Seditious Intention Are Sufficient

The principle that the tendency of the words is paramount was reinforced by High Court Judge Chan in Public Prosecutor v Param Cumaraswamy [1986]. He stated that if words are inherently expressive of a seditious intention as defined by the Act, they are considered seditious words, and extrinsic evidence of intention is not required. This means that the words themselves, by their content and expression, can be sufficient proof of seditious intent. The law holds individuals responsible for any act or publication that, in reality, has a seditious tendency, making them liable for prosecution under the Sedition Act.

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Where does free speech end and sedition begin in Malaysia?

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