Rethinking seditious ‘mens rea’ – Shaun Kua

The Sedition Act is often criticised for deeming the "mens rea" of the accused irrelevant. Indeed, the oft-cited alternatives in the Penal Code and the National Harmony Bills principally differ in this respect. To this critique, Team #Kekal have surprisingly offered very little answer. Towards more vigorous & structured discussion from both sides, here’s a rethink of the issues surrounding seditious mens rea.

Why does the mental state of a person matter morally?

What is “mens rea”? By the term, I mean the mental state of the defendant. Equating the “mens rea” or mental state of a person with “intention”, as commonly done, can obscure several important dimensions of this issue.

Firstly, “intention” can relate to not just our actions but also their consequences. One common criticism of the act is that John might be blamed for sedition if a hacker surreptitiously made seditious tweets using his account. Or if he accidentally pressed the “tweet” button after a horrendous auto-correct failure. Intention as to the action of tweeting is absent.

What if the tweets were actually made by John? An alternative argument is that he did not intend or foresee that racial ill will would result from his tweets. Here, intention as to consequences caused by tweeting is absent. Thus, in discussing “intention”, we must ask: intention as to what? As you might come to notice, the latter is much more controversial, yet much less discussed than the former. 

Secondly, “intentionally” causing something can itself mean two things. Firstly, causing it while desiring it (kemahuan). Secondly, causing it with the foresight or belief (kepercayaan) that it will happen. We ought to keep them distinct.

A general sends his soldiers to war, foreseeing certain death but not desiring it. Conversely, an unrequited lover sends roses to his beloved, desiring that she would accept them but foreseeing that she certainly would not. Does the general "intend" the deaths of his soldiers? Was it "intentional" that the beloved would accept the roses?

I don't think even Ridhuan Tee Abdullah, Datuk Ibrahim Ali or Datuk Seri Ismail Sabri Yaakob genuinely desire racial tension. Nevertheless, they probably foresaw that it might result from what they had said. Are they to blame, despite “intending” to safeguard consumers or the constitution?

Thirdly, our consideration of intention differs based on the nature of the actions or the consequences it relates to. Take lack of punctuality. No one ever "intends" to come late. Yet, when one does, one is nevertheless subject to moral blame – usually in that he is obliged to belanja everyone else. Curiously, where matters are more grave – say, potential racial or religious tension – why then do we insist that he must have "intended" to be seditious to be blamed?

The answer may lie in what precautions we expect from one another. One is expected to (actually) be “on the way” earlier to avoid traffic or find parking. Are we morally expected to take steps to avoid accidentally swiping the "like" button on a seditious web page in fitful sleep? Or to self-censor, just in case others overreact to what we say?  How do we balance the need for precautions with the inevitable costs of doing so?

Fourthly, what degree of foresight of racial or religious tension crosses the line and requires us to take precautions? Virtually certainty? Overwhelming probability? Or not merely negligible? There are certainly
many more gradations in between.

Why does the mental state of a person matter legally?

The difficult questions above help define our moral principles in relation to sedition. But how is moral blame relevant to legal guilt? The starting point is that individuals who are morally blameless – for example, because they did not have the requisite “mens rea” (as discussed above) – should not be punished by the law. Why?

When a person is found guilty of the crime of sedition, the criminal law morally condemns him. This jurisprudential point manifests itself in very real consequences. A conviction for sedition may disqualify one from serving in public office. One is required to disclose such a conviction when serving as a company director or joining certain professional bodies, regardless of its bearing on his moral integrity. These remain true, even if the court imposes a lighter sentence out of mercy. Or even if we view those convicted as sedition as martyrs rather than convicts.

Further, though “sedition” may be too arcane a term to carry any negative connotations, the label “penghasut” is pregnant with meaning. A cursory survey of a Malay daily reveals that the term is commonly used in multiple other contexts. Home-wrecking. Intra-office backstabbing. Covert interference by foreign states.

The law should not make such derogatory associations in convicting a person under the Sedition Act – unless what he has done is, in itself, morally reprehensible. Indeed, is the criminal law so condemnatory that even some actions which we find morally dubious, nevertheless, ought not be punished by the law?

Team #Kekal might object that a requirement of mens rea allows, on the other hand, the genuinely blameworthy to escape real punishment by simply lying in court about their mental state.

Firstly, implicit in this assertion is an argument that, to better catch the morally blameworthy, punishment of some who are blameless will have to be tolerated. While our imperfect legal system will inevitably have to cut some corners, does this go too far?

Secondly, this riposte is itself overstated. Judges do not simply believe what the defendant says. They may and routinely do make inferences to the contrary from other evidence and, crucially, cross-examination of the defendant.

Of course, this also means the courts may make a wrong inference just as much as a correct one. Judges might infer mens rea from a seditious tendency, when in fact there is none. Certainly, wrongful convictions may still occur. Thus, the practical implications of such a requirement are more nuanced than Team #Mansuh have argued.

Firstly, the defendant's testimony, any prior confessions and any evidence relevant to his character will increase in significance. The cost and length of investigations and trials for sedition will increase. Is this a good or bad thing?

Secondly, argument on the defendant's motives and beliefs be allowed in court and, in turn, heavily publicised by the media. Sedition, more than other crimes, is a crime against the public. At the same time, convictions for sedition chills free speech, a public good. Trials for sedition would thus receive more public attention – as they should?

Thirdly, aside from defining the crime itself, it defines the situations in which the police can arrest a person on suspicion of sedition. If the police do not have reasonable grounds – admittedly, a low threshold – a claim for damages against the police for unlawful arrest can be made out. If they do, this requirement may legitimise arrest insofar as more time for investigation of mens rea is allegedly needed.

Crucially, however, if these implications are, on balance, beneficial, they are instrumental benefits. Indeed, if our goals are to discourage arrests and prosecutions for sedition and increase public attention of sedition trials, other legal devices can be introduced to achieve the same effect. A completely nonsensical requirement – say, prosecutors and police investigating officers have to dance in open court to Gangnam Style – might actually be more effective.

That is why, ultimately, rethinking seditious mens rea, morally, is essential. Such a requirement is desirable, not just because it makes it harder for one to be investigated, prosecuted or convicted, but also because, deep down, it means something as a matter of principle.

Of course, its moral and legal significance is by no means a straightforward matter, as the questions above have hopefully indicated. Nevertheless, seek out answers together we must.

* Shaun Kua is a law student pursuing the English Bar qualification in London.

- TMI