Қастық қылмысының тарихы және жойылған заңдары

Sedition, which is committed when spoken or written words are published with seditious intent, was a criminal offence under English common law. It emerged in an era where political violence threatened the stability of governments. The Star Chamber, in the case of De Libellis Famosis (1572), defined seditious libel (that is, sedition in a printed form) as the criticism of public persons or the government, and established it as a crime. The crime of sedition was premised on the need to maintain respect for the government and its agents, for criticism of public persons or the government undermines respect for public authorities. Even though the Star Chamber was later dissolved, seditious libel had become established as a common law offence. Originally designed to protect the Crown and government from any potential uprising, sedition laws prohibited any acts, speech, or publications or writing that were made with seditious intent. Seditious intent was broadly defined by the High Court of Justice in R. v. Chief Metropolitan Stipendiary, ex parte Choudhury (1990) as "encouraging the violent overthrow of democratic institutions". In the important common law jurisdictions, "seditious libel means defiance or censure of constituted authority leading to foreseeable harm to public order", and the Court in ex parte Choudhury clarified that constituted authority refers to "some person or body holding public office or discharging some public function of the state".

Sedition laws were initially introduced in Singapore and the other Straits Settlements (S. S.) through the Sedition Ordinance 1938. Similar legislation was introduced in the Federated Malay States (F. M. S.) in 1939, in the form of the Sedition Enactment 1939. While the Sedition Ordinance 1938 (S. S.) remained in force in Singapore after it became a Crown colony in 1946 and a self governing state in 1959, in the Federation of Malaya the law was replaced by the Sedition Ordinance 1948

On 13 September 2021, the government introduced a bill in parliament to repeal the Sedition Act. The Ministry of Home Affairs cited its "limited application" as a reason for its repeal, and added that new laws like the Maintenance of Religious Harmony Act, the Protection from Online Falsehoods and Manipulation Act 2019, the Administration of Justice (Protection) Act 2016, the Undesirable Publications Act, the Newspaper and Printing Presses Act, and specific provisions under the Penal Code were sufficient to address issues "in a more targeted and calibrated manner". On 5 October 2021, Parliament passed the Sedition (Repeal) Bill. It was assented to by President Halimah Yacob on 29 October 2021 and came into effect on 2 November 2022.

In Public Prosecutor v. Koh Song Huat Benjamin (2005), the accused persons pleaded guilty to doing seditious acts tending to promote feelings of ill will and hostility. The acts in question were the posting of invective and pejorative anti Malay and anti Muslim remarks on the Internet. Given that "[r]acial and religious hostility feeds on itself", such "feelings" may spread and multiply, and they need not be confined to the direct impact of the seditious act itself. In Ong Kian Cheong, the accused persons were convicted of distributing seditious publications tending to promote feelings of ill will and hostility, namely, evangelical tracts that promoted Protestant Christianity and denigrated Islam, and which were described as a "pointed attack by one religion on another". Not only would such seditious tendencies be obvious to any reasonable man, the recipients of the tracts testified that they felt angry after reading the publications. District Judge Roy Grenville Neighbour found that the recipients' testimony "clearly proves that the publications have a seditious tendency". However, the words races and classes have been interpreted rather loosely when applying the Sedition Act. It appears that the two words are sufficiently malleable to include religious groups and cater to other types of inter group hostility. For instance, in Ong Kian Cheong there was a tendency to conflate ethnicity with religious affiliation. This inclination to associate race with religion may stem from the fact that in Singapore, most Malays are Muslims and vice versa. Therefore, religious publications denigrating Islam would not only affect Muslims, but would undoubtedly cause feelings of ill will or hostility within the Malay community as well. Also, the seditious publications distributed by the accused persons which disparaged the Roman Catholic Church and other faiths were held to have affected followers comprising "different races and classes of the population in Singapore". which authorizes anti subversion legislation, contains the additional words "likely to cause violence", which implies that section 3(1)(e) sets a lower threshold than Article 149. This is consistent with how the courts have interpreted section 3(1)(e), as the cases do not address the likelihood of the seditious acts to cause harm. In other words, freedom of speech and expression is limited solely because of its potential consequences, the magnitude of which is categorically assumed. However, it is arguable whether acts promoting class hatred which do not incite violence should in themselves be termed "seditious". The same deed may produce different "feelings" depending on the temperament of the audience, as "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". Due to such ambiguity, people are left without clear guidelines as to what constitutes a seditious tendency, which may result in the chilling of free speech.

Section 7 of the Sedition Act provides that a person who is sent any seditious publication without his or her "knowledge or privity" is not liable for possession of the publication if he or she "forthwith as soon as the nature of its contents has become known" hands it to the police. However, when a person is charged with possession, the court will presume until the contrary is proved that the person knew the contents of the publication when it first came into his or her possession.

In Koh Song Huat Benjamin, the District Court held that a conviction under section 4(1)(a) of the Sedition Act will be met with a sentence that promotes general deterrence. Similarly, in Ong Kian Cheong District Judge Neighbour relied on Justice V. K. Rajah's statement in Public Prosecutor v. Law Aik Meng (2007) that there are many situations where general deterrence assumes significance and relevance, and one of them is offences involving community and/or race relations. Senior District Judge Richard Magnus noted in Koh Song Huat Benjamin the appropriateness of a custodial sentence for such an offence. The judge took the view that a section 4(1)(a) offence is malum in se (inherently wrong), and alluded to "the especial sensitivity of racial and religious issues in our multicultural society", in view of the Maria Hertogh incident in the 1950s and the 1964 race riots, as well as the "current domestic and international security climate". Senior District Judge Magnus equated the moral culpability of the offender with the offensiveness of the materials. As such, the first accused's "particularly vile remarks", which had provoked a widespread and virulent response and sparked off the slinging of racial slurs at Chinese and Malays, was taken to be an aggravating factor. The Senior District Judge also took into account mitigating factors specific to the case – the offending acts by the accused persons were halted early on, and they had taken action to reduce the offensiveness of the acts. One of the accused persons issued an apology and removed the offending material from public access, while the other locked the discussion thread containing the offending statement and also tendered a written apology. The significance of these mitigating factors was downplayed in Ong Kian Cheong, District Judge Neighbour observing that despite their presence the offences committed were serious in that they had the capacity to undermine and erode racial and religious harmony in Singapore. In Ong Kian Cheong, District Judge Neighbour stated that while people may have a desire to profess and spread their faith, the right to propagate such opinions cannot be unfettered. He found that both the accused persons, by distributing the seditious and objectionable tracts to Muslims and the general public, clearly reflected their intolerance, insensitivity and ignorance of delicate issues concerning race and religion in Singapore's multiracial and multi religious society. Furthermore, in distributing the seditious and offensive tracts to spread their faith, the accused persons used the postal service to achieve their purpose and so were shielded by anonymity until the time they were apprehended. There is no doubt that this must have made it difficult for the police to trace them. In view of these circumstances, his Honour found that custodial sentences were warranted for both accused persons. One academic has, however, suggested that rather than invoke legal sanctions, offensive speech of this nature should just be ignored. This is because legal sanctions chill free speech, which is a social good. Furthermore, complaining about wounding speech fuels inter class hostility and ill will and generates a culture of escalating complaints and counter complaints, resulting in a further net loss of speech.

Professor Thio Li ann has expressed the opinion that in Singapore free speech is not a primary right, but is qualified by public order considerations couched in terms of "racial and religious harmony". It seems that the legal framework prefers to serve foundational commitments such as the harmonious co existence of different ethnic and religious communities, because "community or racial harmony form the bedrock upon which peace and progress in Singapore are founded". In his 2009 National Day Rally speech, Prime Minister Lee Hsien Loong characterized racial and religious divides as "the most visceral and dangerous fault line" in Singapore society, and earlier he had said that "we must respect one another's religions, we must not deliberately insult or desecrate what others hold sacred because if we want to live peacefully together, then we must live and let live, there must be tolerance, there must be mutual respect". In Ong Kian Cheong, District Judge Neighbour did not treat free speech in the form of seditious speech as trumping the competing interests of ensuring freedom from offence, as well as protecting social harmony between ethnic and religious groups. He approved the view that offences involving community and/or race relations warrant general deterrence.

There is an "intricate latticework of legislation" in Singapore to curb public disorder, which arguably gives effect to Parliament's intent to configure an overlapping array of arrangements, and to leave the choice of a suitable response to prosecutorial discretion.

The Sedition Act plays its part by criminalizing the doing of any act or the uttering of any words having a seditious tendency, and dealings with seditious publications. The Maintenance of Religious Harmony Act ("MRHA") is another piece of this legislative jigsaw. It was introduced to ensure that adherents of different religious groups exercise tolerance and moderation, and to keep religion out of politics. Minister for Home Affairs S. Jayakumar stated that the MRHA takes a pre emptive approach and can be invoked in a restrained manner to enable prompt and effective action. In contrast with the punitive approach of the Sedition Act where a breach of the statute carries criminal liability, under the MRHA restraining orders may be imposed upon people causing feelings of enmity, hatred, ill will or hostility between different religious groups, among other things. Criminal sanctions only apply if such orders are contravened. While the MRHA is meant to efficiently quell mischief of a religious nature, the Sedition Act encompasses a broader category of mischief. A plain reading suggests that section 3 of the Sedition Act governs racial and class activities. However, it has been argued that the mischief of the MRHA is subsumed under the Sedition Act. This is because in Koh Song Huat Benjamin, Senior District Judge Magnus employed the phrases "anti Muslim" and "anti Malay" interchangeably and suggested that the Sedition Act governs acts which connote anti religious sentiments. Unlike the Sedition Act, the MRHA excludes the word "tendency", which means there must be evidence that the person has "committed" or "is attempting to commit" an act that harms religious harmony, instead of having a mere tendency cause such harm.

Another statutory counterpart to the Sedition Act is section 298A of the Penal Code, which was introduced in 2007 to "criminalise the deliberate promotion by someone of enmity, hatred or ill will between different racial and religious groups on grounds of race or religion". and excludes a proviso which decriminalizes certain bona fide acts. Nonetheless, even though section 298A is regarded as an alternative to the Sedition Act, it has been proposed that the law should make clearer when section 298A, instead of the Sedition Act, should be employed.

Currently, the Sedition Act has both "vertical" and "horizontal" dimensions. The Act has vertical effect in that it criminalizes statements which incites violence against government institutions, and horizontal effect because it criminalizes statements which harm the relationships between sectors of the community. Professor Thio has argued that the Sedition Act should be reserved for politically motivated incitements of violence which threaten the life of the state and its institutions, and that public order problems of feelings of ill will and hostility between different races or classes should not be prosecuted under the umbrella of sedition. In other words, the vertical aspect of sedition should be retained, but there should be separate legislation for the horizontal aspect. Such a separate statutory provision could set out precise norms to regulate harmful non political forms of speech with the goal of managing ethnic relations and promoting national identity. This would bring clarity to the underlying free speech theories involved. The proposal is supported by the view of Professor Tan Yock Lin that when construing section 3(1)(e) in the light of the preceding four limbs, it could only have been intended to embody one of the many forms of seditious libel and must be construed so as to require proof of defiance of constituted authority. Two Barisan Sosialis Members of Parliament, Chia Thye Poh and Koo Young, were charged with sedition after publishing the 11 December 1965 issue of the Chern Sien Pau, the Chinese edition of the party organ The Barisan, which claimed that the People's Action Party government was "plotting to murder" Lim Chin Siong, a left wing politician who had founded the Barisan Sosialis. On 26 July 1966, the defendants were found guilty and sentenced to a fine of $2,000 each. They appealed against their convictions but subsequently withdrew the appeals. The first convictions under the Sedition Act since the 1960s took place in October 2005, and involved two men, Benjamin Koh and Nicholas Lim, who pleaded guilty to charges under section 4(1)(a) for making anti Malay and anti Muslim remarks on the Internet in response to a letter published in The Straits Times on 14 July 2005. In the letter, a Muslim woman asked if taxi companies allowed uncaged pets to be transported in taxis, as she had seen a dog standing on a taxi seat next to its owner. She said that "dogs may drool on the seats or dirty them with their paws". Her concerns had a religious basis as, according to Ustaz Ali Haji Mohamed, chairman of Khadijah Mosque: "There are various Islamic schools of thought which differ in views. But most Muslims in Singapore are from the Shafi'i school of thought. This means they are not allowed to touch dogs which are wet, which would include a dog's saliva. This is a religious requirement." As Lim's statements were not as serious, he was sentenced to one day in jail and the maximum fine of $5,000. A third person, a 17 year old youth named Gan Huai Shi, was also charged under the Sedition Act for posting a series of offensive comments about Malays on his blog entitled The Second Holocaust between April and July 2005. Gan pleaded guilty to two counts of sedition, and on 23 November 2005 he was granted 24 months' supervised probation that included counselling sessions and service in the Malay community. In June 2006, a 21 year old blogger who used the moniker "Char" was investigated by the police for posting offensive cartoons of Jesus Christ on his blog. He was let off with a stern warning. The case of Public Prosecutor v. Ong Kian Cheong The works were tracts by Chick Publications which the couple had posted to Muslims, and the charges alleged that the tracts had the tendency to promote feelings of ill will and hostility between Christians and Muslims. Following a trial, the couple were found guilty and sentenced on 6 August 2009 to eight weeks' jail each. In 2015, the Sedition Act was invoked in respect of two separate incidents. On 7 April, a Filipino nurse named Ello Ed Mundsel Bello was charged with posting comments on Facebook on 2 January that had a tendency to promote feelings of ill will and hostility between Filipinos and Singaporeans. In one post he allegedly called Singaporeans "loosers" (losers) and vowed to "evict" them from the country. He prayed that "disators" (disasters) would strike Singapore, and that he would celebrate when "more Singaporeans will die". The post concluded, "Pinoy better and stronger than Stinkaporeans". In another post made later that day, he said he would "kick out all Singaporeans" and that the country would be a new "filipino state" Bello pleaded guilty to the charge and was sentenced to three months' jail for the seditious statements, and another month for lying to police investigators. On 14 April a couple, a Singaporean man named Yang Kaiheng and an Australian woman named Ai Takagi, were charged with seven counts of posting on a website operated by them called The Real Singapore a number of articles that could lead to ill will and hostility between Singaporeans and foreigners. These included an untrue story about a Filipino family who had supposedly provoked an incident between participants of the annual Thaipusam procession and the police by complaining about musical instruments being played during the event, and a claim that Filipinos living in Singapore were favouring fellow citizens to the detriment of Singaporeans. On 3 May 2015 The Real Singapore website was disabled after the MDA suspended the statutory class licence applicable to the site and ordered its editors to cease operating it. Ai pleaded guilty and was sentenced to ten months' imprisonment in March 2016. Yang claimed trial and was also convicted; he was sentenced in June 2016 to eight months' imprisonment.

Following the abolition of the common law offences of sedition and seditious libel in the United Kingdom by section 73 of the Coroners and Justice Act 2009, there has been mounting civil society pressure for Commonwealth countries including Malaysia and India to repeal their sedition laws. In July 2012, Malaysia's Prime Minister Najib Razak announced plans to repeal the Sedition Act 1948. However, at the 2014 general assembly of his political party, the United Malays National Organisation, he announced a reversal of this policy. At an event in March 2015 he said, "We should not be apologetic. Some may say this is not democratic, this [violates] rights to freedom, and more, but I want to say that there is no absolute freedom. There is no place for absolute freedom without responsibility in this country." On 10 April 2015, following a 12 hour parliamentary debate, the Sedition (Amendment) Act 2015 was enacted. Changes to the law included clarifying that calling for secession and promoting feelings of ill will, hostility and hatred between people or groups of people on religious grounds amount to sedition; empowering the Public Prosecutor to call for bail to be denied to persons charged with sedition and for them to be prevented from leaving the country; introducing a minimum jail term of three years and extending the maximum term to 20 years; and enabling the courts to order that seditious material on the Internet be taken down or blocked. On the other hand, criticizing the government is no longer an offence. The Malaysian Act was amended while a decision by the Federal Court on whether the Act violated the right to freedom of speech guaranteed by Article 10 of the Constitution of Malaysia was pending. The case was brought by Dr. Azmi Sharom, a law professor from the University of Malaya who had been charged with sedition for comments he made on the 2009 Perak constitutional crisis which were published on the website of The Malay Mail on 14 August 2014. On 6 October, the Federal Court ruled that the provision of the Sedition Act challenged was not unconstitutional. Azmi will therefore stand trial on the original charge.

R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 Q. B. 429, High Court (Queen's Bench) (England and Wales). Public Prosecutor v. Koh Song Huat Benjamin [2005] SGDC 272, District Court (Singapore). Public Prosecutor v. Ong Kian Cheong [2009] SGDC 163, D. C. (Singapore).

, Article 14. ("MRHA"). Sedition Act 1948 (2020 Rev. Ed) ("SA").