The Chua Tian Chang Sedition Case

(The Choice)

PKR vice-president Chua Tian Chang has been charged with, and claimed trial to sedition, for allegedly claiming that Umno staged the Sulu invasion into Sabah. The essence of the charges is that Chua allegedly worked to undermine the government at a time of military crisis.

This is not unique to Malaysia. It is common in developed democracies to treat words attacking the government as sedition during times of invasion and war.

As quoted by Keadilan Daily, PKR's dedicated house organ – and presumably one of the publications on which a PKR officer may rely to accurately relay his words – Chua allegedly said the following:

1. "The shooting in Lahad Datu is believed to be a planned conspiracy of the Umno government to divert attention and intimidate the people."

2. "The incident has raised many questions and doubts as to the drama staged by the Umno government."

3. "The intrusion in Lahad Datu was only a drama of the government to intimidate the people to make it seem that Sabah is not peaceful."

4. "There is a conspiracy by the Umno government to divert the attention of the Sabah people, particularly from the issue of giving identity cards to foreigners."

It is important to distinguish what Chua allegedly said from how his words have been characterised. He was not criticising the Government's handling of the Lahad Datu situation; if he said what has been alleged, he was asserting that the Government enacted the entire conflict, either murdering soldiers, police, and civilians, or pretending to do the same.

If he said what he is alleged to have said, he is also accusing police and soldiers of either faking their comrades' deaths, or being complicit in their murders.

By any reasonable measure, this is sedition – it directly attacks the Government and its ability to prosecute war, not its actions, in an attempt to weaken it during a time of conflict.

Chua's defence, such as it is, is fairly traditional PKR rhetoric.

"This is a politically-motivated charge. I will fight this slander to clear my name," Chua told the Sessions Court while claiming trial. His lawyer, N Surendran, added that as the Prime Minister had promised the repeal of the Sedition Act, Chua should not be charged under it.

Putting aside the illogical nature of the lawyer's claim, it is important to understand that almost every country in the world – including the world's leading democracies – has a long history of treating attacks on the government during a time of military conflict as criminal sedition.

The United Kingdom has a storied history of sedition charges. Although the charge itself was largely abolished only in 2010, the charge was used heavily during the extensive conflicts in which Britain found itself for the last three centuries. In every major conflict in which Britain found itself embroiled, it charged its own citizens with sedition for attacking Britain's involvement in the war itself. In the last 150 years alone, the Boer War, World War I, and World War II saw dozens of sedition trials each, with convictions almost a foregone conclusion.

Most recently, during the Troubles in Ireland, the UK liberally employed sedition charges against attempts to aid the Irish Republican Army (which was at the time planting bombs in and around schools, train stations, and other areas with high civilian traffic) or undermine the effort against the IRA, even into the 1970s.

A movement to repeal sedition as a crime began after Ireland calmed, but was delayed in the wake of the July 7 attacks, only coming to fruition in 2010 when Britain faced no significant internal conflict. Even so, sedition remains a crime for aliens in the UK.

The United States, despite a tendency to very broad interpretations of free speech, has been a vigorous proponent of sedition charges from the country's very beginning. Washington most recently criminalised sedition – and charged for it en masse – throughout the twentieth century and beyond.

During World War I, the US charged and prosecuted over 2,000 American citizens with sedition, which was the crime of interfering with the war effort through speech. During World War II, sedition charges were unused until German submarines appeared off the American coasts – and then the government began charging in earnest.

Communists and communist allies were charged and convicted of sedition for the simple act of espousing communism – that is, that there should be an organised movement to overthrow the US government. This occurred during the 1940s and 1950s, when the United States was not formally at war, but was locked in its Cold War struggle with the Soviet Union.

Indeed, the United States has never needed a formal declaration of war to prosecute for sedition. American citizens promoting the idea that the archipelago territory of Puerto Rico should be a sovereign nation have been convicted of sedition in the 1970s and 1980s. Terrorists – American citizens who sided with al Qaeda – have been charged with sedition before and after the September 11 attacks; many have not gone to trial merely because they have fled the country or have been killed during America's extensive terror-related conflicts over the last decade.

Australia criminalised sedition in 2006, only modifying the laws slightly after a change in Government. India retains an extensive sedition law. Canada has existed under American protection since the end of the Second World War and so has not significantly prosecuted for sedition since then, but retains laws against sedition.

Yet sedition charges have become less common than in the past in major democracies. Some suggest this is because their laws and customs have broadened to accept even incendiary speech.

This is not so.

Rather, it is because of a confluence of two fortunate trends: increased local stability (that is, fewer invasions) and the maturing of those democracies' political classes.

The US remains the foremost prosecutor of sedition amongst democracies, because it perceives itself to be locked in an existential struggle with dangerous terrorists. As other countries' fear of terrorism recedes – as with Britain, Canada, and Australia – so too does their motivation to bring charges for sedition.

Yet as importantly, it is unfathomable to imagine John Boehner in the United States, or Tony Abbott in Australia, or Ed Miliband in the UK, claiming that an invasion of their respective countries was a 'shadow play' by their governments to divert attention from domestic issues. Both their parties and their peoples would rise up in anger at the very idea.

Mature oppositions simply do not engage in this sort of rhetoric, especially during times of dangerous conflict, and so sedition charges need not be used – or in many cases, even retained as law.

Yet this is precisely what Tian Chua is alleged to have done.

The Government's charge of sedition is not merely facially correct on those allegations; Putrajaya has an affirmative duty to protect the country's safety and stability, and allowing an Opposition politician to deliberately undermine those efforts is an abrogation of duty no civilised country would accept.

The truth of the allegations against Chua remains one for the court. Yet the rightness of the prosecution, based on the allegations, should be beyond all doubt.