Malaysia: Free Speech Is Far From "Thriving"

ARTICLE 19 is astonished by a recent speech made by Malaysian Prime Minister, Najib Tun Razak, where he stated that “free speech is thriving in Malaysia”. His statement is in stark contrast with the repressive laws and policies facing Malaysians who wish to exercise their rights to freedom of speech, opinion or expression, particularly on issues deemed sensitive to the ruling government, with hundreds arrested and charged during his term. ARTICLE 19 calls on the Malaysian Government to acknowledge and address the diminishing space for freedom of expression in the country and to ensure that freedom of expression is adequately safeguarded, as guaranteed under Article 10(a) of the Federal Constitution, by reversing repressive legislation and policies.

ARTICLE 19 is concerned that in his speech, the Prime Minister appeared to lay the blame on “foreign activists” for creating the perception of “crackdowns on free speech in Malaysia”. Criticism of Malaysia's violations of freedom of speech and expression are justified not just by “foreign activists” but by the many vocal civil society organisations (CSOs), independent journalists and members of the public in Malaysia. The speech was delivered at the WAN-IFRA 16^th Asian Media Awards held in Kuala Lumpur on 19 April.

Of particular concern is the use of the Sedition Act 1948 and the Communications and Multimedia Act (CMA) 1998 as a mean to stifle the right to freedom of expression both on- and off-line in Malaysia. Moreover, regressive legislation such as the Printing Presses and Publications Act (PPPA) 1948, the Film Censorship Act (FCA) 2002 and the Official Secrets Act (OSA) 1972 were further used to restrict the right to expression and information in the country.

Throughout Najib Tun Razak's second term (2013 to date), the right to freedom of expression has dramatically diminished and the space to voice opinion has been increasingly closed. The use of the Sedition Act has been particularly prevalent, with hundreds of individuals including artists, human rights defenders, lawyers, media personnel, opposition politicians, students and the general public having been arrested, investigated or charged for merely expressing an opinion.

One example is Malaysian cartoonist, Zulkifli Anwar Haque (popularly known as 'Zunar'), who is currently facing 43 years in prison and a record-breaking nine charges under the Sedition Act for a tweet posted in February 2015, which implied that Federal Court judges had bowed to pressure from the Executive in sentencing former leader of the opposition, Anwar Ibrahim, to five years in prison.

The right to freedom of expression and access to information online are also increasingly curtailed in Malaysia. Under the CMA, websites remain blocked for their coverage of the 1 Malaysia Development Berhad (1MDB) corruption scandal and social media users are frequently arrested, investigated and charged for their comments online. Student activist Khalid Ismath is currently facing 11 counts under the CMA for allegedly posting comments on social media deemed offensive to Sultan Ibrahim Ismail Ibni Almarhum Sultan Iskandar Al-Haj of Johor. Graphic artist Fahmi Reza is facing two charges under the CMA for posting an image of Najib Tun Razak in clown make-up on social media.

Recent arrests, investigations and charges under the CMA however suggest that the law is no longer just a tool to crackdown on high profile figures, but is now being used to target ordinary social media users in what appears to be an exercise in clamping down on criticism of national leaders.  ARTICLE 19 is concerned of the chilling effect that this could have and the subsequent forced self-censorship of social media users in Malaysia.

In February 2017, ARTICLE 19 undertook a legal analysis of the CMA and concluded that the regularly used Section 233(1)(a) should be thoroughly revised to more narrowly and precisely define what constitutes “improper use of network facilities or services”. ARTICLE 19 also concluded that the CMA creates a number of overly broad content-related offences and in addition, the licensing scheme for network and applications services lacks adequate safeguards against censorship. 

ARTICLE 19 also note the recent sentencing of human rights defender and former Pusat KOMAS coordinator Lena Hendry under the FCA for screening the award-winning human rights documentary “No Fire Zone: The Killing Fields of Sri Lanka” in 2013. The judgement has set a dangerous precedent for freedom of expression in Malaysia, where screening a film without permission can now be considered a crime.

The vague and over-broad language of the FCA leaves it open to selective and arbitrary enforcement. Section 6(1)(b) criminalises the circulation, distribution, display, production, sale or hire of any non-approved film and Section 6(1)(a) extends the prohibition to the mere possession of such material. These provisions are inconsistent with international standards governing freedom of speech and expression, and are contrary to Malaysia’s obligations under international law.

The OSA has likewise been used to limit the right to freedom of information in Malaysia, particularly related to the government-linked 1MDB saga which has now become a matter of public interest. In November 2016, the Kuala Lumpur Sessions Court found Opposition Parti Keadilan Rakyat (PKR) Vice-President and Pandan MP, Rafizi Ramli, guilty of two charges under Section 8(1)(c)(iii)[i] and Section 8(1)(c)(iv)[ii] the OSA, which deals with “Wrongful communication, etc., of official secret” and a sentence of 36 months' imprisonment for possession of page 98 of the Auditor General's Report on 1MDB. Rafizi is currently appealing the sentence but faces disqualification as an MP unless the judgement is overturned at the Court of Appeal.

In his speech, Najib Tun Razak also pointed out that “a free press is a guarantor of accountability and transparency”. Malaysia's media environment is notoriously controlled and heavily curtailed by legislation such as the PPPA, which has resulted in many independent journalists and news outlets having to publish news content online. Independent voices are regularly at risk of being investigated, charged or barred from reporting in Malaysia.

In March 2016, independent news portal The Malaysian Insider was forced to shut down after it was blocked by the Malaysian Communications and Multimedia Commission (MCMC) under Section 233 of the MCA over its coverage of the 1MDB corruption case and the subsequent impact the block had on the portal's financial standing. Eight months later, in November 2016, police investigated independent online news portal Malaysiakini under Section 124C of the Penal Code, which deals with “attempt to commit activity detrimental to parliamentary democracy” for receiving funding from Open Society Foundations (OSF). ARTICLE 19 is concerned by the recent ban on journalists from reporting from the lobby of Parliament by Dewan Rakyat Speaker, Pandikar Amin Mulia, for example, which violates the right to information.

Finally, ARTICLE 19 echo concerns from local and international CSOs who fear that the Security Offences (Special Measures) Act 2012, which was tabled to deal with terrorism-related offences, may be further used to limit the right to freedom of expression and information in Malaysia. The arbitrary detention of former UMNO Batu Kawan division Deputy Chief, Datuk Seri Khairuddin Abu Hassan and his lawyer Matthias Chang in 2015 and the detention and credible allegations of torture of human rights defender and BERSIH 2.0 Chairperson, Maria Chin Abdullah in 2016 are particularly worrying.

With these cases in mind, ARTICLE 19 maintain that free speech is far from “thriving” in Malaysia and calls on the Malaysian Government to acknowledge the aforementioned violations and to reversing repressive legislation and policies, and ensure all existing legislation, policies and practices that limits the right to freedom of speech, opinion and expression are in conformity with international human rights standards and to ensure that these rights are adequately upheld and  promoted.and protected.

[i]           Section 8(1)(c)(iii) of the OSA criminalises “any person having in his possession or control of any official secret or any secret official code word, countersign or password which has been made or obtained in contravention of this Act retains in his possession or control any such as thing as aforesaid when he has no right to retain it, or when it is contrary to his duty to retain it, or fails to comply with all lawful directions issued by lawful authority with regard to the return or disposal thereof”

[ii]          Section 8(1)(c)(iv) of the OSA criminalises “any person having in his possession or control of any official secret or any secret official code word, countersign or password which has been made or obtained in contravention of this Act fails to take reasonable care of, or so conducts himself as to endanger the safety or secrecy of, any such official secret or thing”