Over the weekend, a good friend posed a tough question: “Are we now witnessing the resurgence of mens rea (the intention or knowledge of wrongdoing) ?”
What he wanted to know was whether the recent Court of Appeal decision will have any impact on our sedition law.
According to media reports, the Court of Appeal had ruled that Section 3(3) of the Sedition Act 1948 (which does not require the prosecution to prove the mens rea of a person charged with sedition) as invalid. A three-member panel of the court unanimously allowed the appeal filed by the appellant, Mat Shuhaimi Shafiei, the state assemblyman for Sri Muda, concerning the constitutionality of that provision.
According to the court, Section 3(3) violated the constitutional rights of citizens to be treated and protected equally before the law.
Section 3(3) states that: “For the purpose of proving the commission of any offence against this act the intention of the person charged at the time he… uttered any seditious words... shall be deemed to be irrelevant if in fact… the words… had a seditious tendency.”
The Court of Appeal held that Section 3(3), in as much as it sought to totally displace proof of intent for seditious offences, was wholly unsustainable. The court was unanimous in holding that Section 3(3) “was a disproportionate restriction or measure to meet the permissible objectives spelt out in Article 10(2) (a) of the Federal Constitution”.
The appellant in the case (Mat Shuhaimi) faced a sedition charge for allegedly posting seditious material on his blog at Pusat Khidmat Rakyat, Jalan Anggerik Vanilla, Kota Kemuning in Shah Alam on Dec 30, 2010. In September 2014, he sought a court order to declare Sections 3 and 4 of the Sedition Act as invalid on the grounds that they violated his fundamental liberty of freedom of speech as guaranteed by Article 10(1)(a) of the Federal Constitution.
Having failed at the High Court, he filed his appeal to the Court of Appeal. On Nov 25, the Court of Appeal allowed his appeal. (Landmark ruling in sedition case, NST, Nov 26).
My friends in the legal fraternity may probably still remember that in the landmark case of P.P. v. Param Cumaraswamy [1986] CLJ (Rep) 606, the trial Judge, N.H. Chan, had held that on his reading of Section 3(1) of the Sedition Act, intention is not an ingredient of the crime of sedition, and all that is needed to be proved by the prosecution is “a seditious tendency”.
How does one prove a seditious tendency? The trial judge explained, citing R v. Aldred (1909) 22 Cox CC 1, p 3, that one must look at all the circumstances surrounding the publication — “with the view of seeing whether the language used is calculated to produce the results imputed; that is to say, you are entitled to look at the audience addressed, because language which would be innocuous, practically speaking, if used to an assembly of professors or divines, might produce a different result if used before an excited audience of young and uneducated men”.
Although the court in Param Cumaraswamy’s case had held that intention is not an ingredient of the crime of sedition, on the evidence there was no seditious tendency and the accused was therefore acquitted and discharged. The principles of law enunciated by the court remain a good law all these years, but must now be reviewed in the light of this recent decision by the Court of Appeal.
In the Canadian case of Boucher v. The King [1951] SCR 265, the Supreme Court (in a majority decision of 5:4) held that for the court to arrive at a conviction of the charge of sedition, there must be an intention to incite violence against the government.
In the Malaysian case of P.P. v. Ooi Kee Saik & Ors [1971] 2 MLJ 108, Justice Raja Azlan Shah held (at the appeal stage) that: “In my view what the prosecution have to prove… is that the words complained of… were spoken by the accused… Once that is proved, the accused will be conclusively presumed to have intended the natural consequences of his verbal acts and it is therefore sufficient if his words have a tendency to produce any of the consequences stated in Section 3(1) of the act. It is immaterial whether or not the words complained of could have the effect of producing or did in fact produce any of the consequences enumerated in the section. It is also immaterial whether the impugned words were true or false.”
Our courts have consistently regarded sedition as an absolute liability offence. In P.P. v. Mark Koding [1983] 1 MLJ 111, the court held that even an innocent or noble intention will not provide a defence. “It is immaterial whether the accused’s intention or motive was honourable or evil when making the speech.”
In common law traditions, a crime is committed only if there is a wrongful act (actus reus) coupled with mens rea. The concept of mens rea was developed in England in the 17th century, when judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind.
This common law landscape has, however, been shaped in recent times by the rise of statutory offences, many of which are now considered as strict liability crimes, where mens rea is no longer necessary or relevant.
Back to the question posed by my friend, my answer has to be in the affirmative — which is actually a good sign for the future of our sedition law, unless this recent decision by the Court of Appeal is later overturned by the Federal Court.
It is time we discard the old position, where sedition can be committed even if there is no guilty intent, and follow the more enlightened Canadian example.
Salleh Buang formerly served the Attorney-General’s Chambers before he left for practice, the corporate sector and, then, the academia