Lawyer: Probe Ali Tinju under Penal Code, not sedition law

Army veteran Ali Tinju should have been investigated under Section 505 of the Penal Code rather than the 'outdated' Sedition Act 1948, said Lawyers for Liberty executive director Eric Paulsen.

This is because a charge under the Penal Code provision would require the prosecution to show the court the intent (mens rea) behind the alleged offence, and that the offence had indeed caused public alarm or amounts to public mischief.

In addition, Ali Tinju, whose real name is Mohamad Ali Baharom, would have an opportunity to explain the reason behind his actions in court.

In contrast, the provisions under the Sedition Act 1948 are so broad that the prosecution merely needed to prove that the accused had indeed made the allegedly seditious statement.

“It makes a difference (under Section 505 of the Penal Code) if Ali Tinju said it in Kota Raya while being backed up by a large group of men, rather than a nobody saying it on Facebook from some rural area somewhere.

“Under the sedition law right now, both would be equally be guilty, because as long as you have said it, it is an offence.

“Under the Penal Code, the offence is much more well-defined. There are a lot of case laws about it, but when it comes to sedition, it is very open ended. So there are good reasons why the Penal Code is a more appropriate charge than sedition,” he told Malaysiakini when contacted today.

Paulsen (photo), who himself faces a sedition charge, maintains that the Sedition Act should be abolished.

Ali Tinju was remanded for two days since this morning, after being arrested under Section 4(1) of the Sedition Act last night.

This was for his involvement in a protest outside the Kota Raya shopping complex last week where he called for a boycott of the mall, after one shop in the mall had supposedly locked up a customer for changing his mind about a mobile phone purchase.

“I ask that the government calls all traders to go for courses so that they will know how to respect customers. Don’t think that you are already rich because you do business.

“I am warning you, if this incident recurs, the Malays will rise and boycott Chinese traders.

“Not all Chinese traders like to lie, however. But doing so (lying and distorting facts) are against the law,” he said at the protest.

Ali Tinju denied involvement

Many shops in the mall had closed in anticipation of the protest, with at least one trader saying it is because they are afraid of the looming protest.

A brawl had also broken out on Sunday at the shopping complex that resulted in two injuries, but Ali Tinju denied involvement in the incident.

Section 4(1) of the Sedition Act defines what amounts to sedition, and includes statements that have a “tendency to promote feelings of ill will and hostility between different races or classes of the population of Malaysia”.

Conviction under the Sedition Act results in a fine of up to RM5,000, or a jail term of up to three years, or both, on the first offence. The maximum prison term is raised to five years for subsequent offences.

Meanwhile, Paulsen argued that the appropriate provision for Ali Tinju's case is Section 505 (b) or Section 505 (c) of the Penal Code.

Section 505 (b) of the Penal Code deals with the making of statements are intended to cause alarm to the public or is likely to cause alarm, thereby causing them to commit an offence against the state or against public tranquility.

Similarly, Section 505 (c) deals with the incitement of any class or community of people against another class or community.

The two offences are punishable with imprisonment for up to two years, or a fine, or both.

The provision explicitly states that it shall not be an offence to make these statements if they are believed to be true and is done without the aforementioned intentions. -Mkini