Disappointments and promises in freedom of expression

The year 2014 saw Malaysians standing up to exercise the rights guaranteed under the Federal Constitution, including freedom of expression and freedom of assembly. This continues a growing trend of facing up to state oppression. Unfortunately, this has been met with increasing repression. Malaysia has seen a concerted crackdown on the freedom of expression in the year 2014, which has escalated even further in 2015.

The ruling coalition Barisan Nasional won the 2013 general election, but with a reduced majority and a loss of the popular vote. Since then, there has been a weakening of earlier moves toward moderation and inclusion. This has been most evident in the repeated use of the Sedition Act, legislation that the Prime Minister Najib Razak had previously promised to repeal in 2012.

This profligate use of the Sedition Act has been one of the greatest concerns over the course of the year. Another has been the crackdown on freedom of expression online. Rather than engaging through open and transparent communication, there has been a flurry of arrests and prosecutions.

Political crackdown

The year 2014 saw at least 40 charges for speech and assembly related offences, with about another 40 investigated and arrested. Significantly, many of those charged were members of the federal opposition coalition Pakatan Rakyat. (See Annexure)

The charging of key politicians from Pakatan Rakyat’s component parties – DAP, PAS and PKR – weakens the opposition coalition as time and resources are channelled towards defending themselves. Conviction and fines of not less than RM2,000 (approx. 550 USD) or jail terms of not less than one year result in members of Parliament losing their seats and being disqualified from office for five years thereafter. Other than producing a chilling effect on the freedom of expression, such prosecutions could constitute an abuse of the criminal justice system to ensure BN remains in power.

Authorities were also sensitive to online comments, arresting and prosecuting individuals who posted comments on Twitter and Facebook (See Annexure). All sorts of issues attracted censure from insulting the police to questioning affirmative action for the majority ethnic group.

Even academic and legal opinions were considered suspect. Law professors and lawyers were investigated1 and charged2 for giving their views on matters such as the Sultan’s role in the appointment of a chief minister and whether non-Muslims are subject to Islamic fatwas or the Syariah court.3

Rising religious intolerance

There was continued pressure on religious freedom. Courts have denied the right of the Catholic Church to use the word “Allah” to refer to God in their weekly newspaper, and their application for leave to appeal to the Federal Court was denied.

Malay language Bibles were confiscated by religious authorities in the state of Selangor, purportedly because they contained the word “Allah”.

Sisters in Islam (SIS), a non-governmental organisation that focuses on women’s rights within the context of Islam, filed a judicial review to challenge another Selangor fatwa. The fatwas stated that SIS were deviating from Islamic teachings and subscribing to liberalism and religious pluralism.

Government authorities also continued to harass Shia Muslims in Malaysia. In a crackdown in March 2014, Islamic authorities in Perak arrested over 100 people believed to be Shia Muslims.4

Clampdown on sexuality rights

The government has shown little acceptance for minority groups or respect for sexuality rights. In June 2014, 17 transgender women, including one minor, were arrested and charged under a Negeri Sembilan syariah enactment that prohibits cross-dressing. The 16 adults were shaved bald and were fined RM950 (approximately 260 USD) each and sentenced to seven days in prison.

Criminal defamation in politics

Defamation continues to be a criminal offence under section 500 of the Penal Code, punishable with up to two years imprisonment and a fine. It was most recently used in March 2015 against a lecturer for remarks she made in an opinion column about the police.5

Politicians including the Prime Minister, opposition leader Anwar Ibrahim, Pahang Chief Minister Adnan Yaakob and former Selangor Chief Minister Khalid Ibrahim have brought defamation suits against other politicians, newspapers and online portals. While an individual has the right to bring a civil defamation suit to correct false statements of fact that damage their reputation, it is troubling that it has become commonplace for multi-million defamation suits to be brought or threatened, such as Anwar’s RM100 million (approx. 27.6 million USD) suit against Foreign Minister Anifah Aman6 and RM100 million suit against Youth and Sports Minister Khairy Jamaluddin.7

Prime Minister Najib Razak also filed a defamation suit against Malaysiakini in relation to reader comments that were compiled into an article on the website.8

Reports and ranking

The disappointing year has been reflected in local and international reports on freedom of expression.

This includes Freedom House’s Freedom in the World 2015 report,9 which gave Malaysia a downward trend arrow in political and civil rights.10

The International Humanist and Ethical Union’s Freedom of Thought Report 2014 gave Malaysia a “grave violation” rating, citing Najib Razak’s May 2014 speech, where he “branded ‘humanism and secularism as well as liberalism’ as ‘deviant’.”11

Local human rights organisation Suaram has also documented the arrests, charges and investigations affecting freedom of expression. It stated that “2014 marks a serious regression in our democratic space with the government’s crackdown against the slightest voice of dissent, predominantly through the use of the archaic Sedition Act 1948.”12

Restrictions on newer media

Media freedom continues to be threatened by tight government control. Although the Printing Presses and Publications Act was amended in 2012 to lift the requirement for annual permit renewals for newspapers, the government can still suspend or revoke permits and licences.

Weekly publication The Heat was suspended from December 2013 to January 2014.13 The Home Ministry also refused to grant established online portal Malaysiakini a publication licence despite a court ruling declaring an earlier refusal invalid.14 An earlier approval for website fz.com to start a print publication was put on hold and then revoked.

Malaysiakini journalist Susan Loone was arrested under the Sedition Act for reporting on Penang executive councillor Phee Boon Poh’s account of his imprisonment.

Radio station BFM 89.9 was fined RM10,000 by the Malaysian Communications and Multimedia Commission (MCMC) in relation to a broadcast with Iranian-American scholar Reza Aslan where he discussed the banning of the use of the word Allah by non-Muslims.

Five of BFM’s radio presenters were also investigated under section 505(c) of the Penal Code following police reports against them for allegedly raising matters deemed seditious or an insult to Islam. Most recently in March 2015, four editors from online portal The Malaysian Insider and a publisher were arrested and detained overnight in relation to a disputed article about the Conference of Rulers’ reaction to attempts to implement hudud in the state of Kelantan.

Malaysia maintained its all-time low in Reporters without Borders press freedom index,15 coming in at 147 out of 180 countries. Its overall score dropped compared to the year before.

Tightening legal controls

The government appears to be tightening legal controls on freedom of expression. An October 2013 amendment to section 203A of the Penal Code prohibiting the “disclosure of information obtained in the performance of duties” is ridiculously broad. It also severely dilutes the protections under the Whistleblower Protection Act.16

Najib also announced at the 27 Nov 2014 Umno general assembly that the Sedition Act would be retained, and even strengthened, to protect the sanctity of Islam and other religions and to allow for action against those who call for Sabah and Sarawak to leave Malaysia.17 The amendments, introduced in early April 2015, proposed a minimum of three-years jail for the offence of sedition. They also allow for the court to order the removal of online publications deemed seditious.

The government reintroduced preventive detention without trial in October 2013 by passing amendments to the Prevention of Crime Act. The amendments allow for a three-person board to make a two-year detention order without trial.18 The Prevention of Terrorism bill was introduced in March 2015 which also allows for indefinite detention without trial, with no judicial review, except on procedural grounds.

Counterbalance to state interests

Not everything has been bleak. There have been several Court of Appeal decisions in 2014 upholding the freedom of expression using human rights guarantees under the Federal Constitution.

Significant decisions include an April 2014 decision upholding the right to peaceful assembly. The Court of Appeal declared unconstitutional a provision that criminalised the failure to give police 10-days notice before an assembly, stating that peaceful assemblies are fundamentally lawful.19

In October 2014, the Court of Appeal lifted a ban on two books by cartoonist Zunar (Zulkiflee Anwar Haque), stating that the sedition law was used as a “convenient peg” in this case to control the freedom of expression.20 Importantly, the judgment also emphasised the need for courts to balance state interests with individuals’ rights.

On 7 Nov 2014, the Court of Appeal also declared unconstitutional a state enactment, applicable only to Muslims, that prohibited men appearing in public in women’s attire.21 In a landmark judgment, the court made clear that the Constitution was the supreme law of the country, and that all state laws, including Islamic laws passed by state legislatures, must be consistent with Part II of the Federal Constitution, which guarantees the fundamental liberties of all Malaysians. This is one of the first clear judgements upholding the supremacy of the Constitution over laws concerning Islam enacted by states, and is significant when read against the jurisdictional hesitance thus far displayed on this issue.22 The court upheld the appellants right to “express themselves in a way which is part of their experience of being human”, and stated that the enactment contravened the appellants right to life, right to equality, their freedom of movement as well as their freedom of expression.23

It is welcoming to see the courts adopt a rights-based framework when dealing with laws affecting human rights. This demonstrates a greater willingness by the judiciary to act as a check and balance on the powers of the Executive and Legislature. It is hoped that this independence can be sustained.

A bolder citizenry

Despite the clampdown, citizen action and expression continues to be vibrant, both online and offline. The fact that people continue to criticise the government openly, despite knowing of the possible consequences, is indicative of a bolder citizenry, less easily cowed, and more aware of their rights.

Encouragingly, student activism appears to be thriving. Nearly 2,000 university students and supporters attended a gathering at Universiti Malaya to hear Anwar Ibrahim speak on the eve of his appeal to the federal court regarding his sodomy conviction. Their assembly defied the university barring its gates and declaring the event illegal.24

A group of students called Anak Muda Harapan Malaysia issued a strongly-worded open letter to the Prime Minister, calling for affirmative action policies for Malay Malaysians to be abolished and for a single-stream school system. The group also affirmed that Malaysia was a secular, and not an Islamic, state.25

Another open letter that received considerable media coverage was issued by 25 prominent Malay Muslims, many of whom were former high-ranking civil servants.26 The group called for a rational dialogue on the position of Islam in a constitutional democracy and a consultative process to address outstanding issues of overlap between the civil and syariah courts.

Another instance of citizen action in promoting tolerance was the “I want to touch a dog” event organised by Malay Muslim Syed Azmi Alhabshi, which aimed to educate Muslims on the circumstances in which Muslims can touch dogs.27 Unfortunately, after images of Malay Muslims petting and hugging dogs were posted online, the event organiser received death threats and other abuse accusing him of apostasy and of being a covert Christian.28 Nevertheless, Syed Azmi also received strong support, including from Malay Muslims.29

Looking Ahead

It is likely that the government’s current attitude towards freedom of expression, and the rhetoric on race and religion will continue, at least until the next general election, due in 2018, at the latest.

The interesting aspect to watch will be the conversation that takes place amongst citizens. There have been more voices all around, some heavily supportive of the BN government and others forcefully critical. Many Malaysians are not yet decided whether we would be better off following an authoritarian model of governance or a more liberal one. Many are also not sure whether Malaysia should be a secular state or a more Islamic one. There have been some attempts to bridge the divide, however not many have been successful. It will be important to witness how this progresses in the future.

Annexure

List of persons investigated, arrested and charged in 2014 for offences relating freedom of expression

Name

Date

Action

Act

Lee Min Choon, Bible Society of Malaysia president and Sinclair Wong, manager

2 Jan 2014

Arrested as part of a raid by religious authorities, where Malay-language bibles were confiscated.

Selangor Non-Islamic Religions (Control of Propagation Among Muslims) Enactment 1988

A woman, 27 years old

12 Feb 2014

Arrested and investigated for comments about the Sultan of Selangor on her Facebook page.

Sedition Act

Man Mablast and Mohamed Hidayat, secondary school teachers

29 Jan 2014

Charged for allegedly insulting comments about Hindus and Thaipusam that were posted on Facebook.

Sedition Act

Kassim Ahmad, 81, religious scholar

6 Feb 2014

Charged under Syariah law for sermons on Islam.

Federal Territory Syariah Offences Act 1997, section 7(b) and 9

Businessman, aged 28

7 Apr 2014

Arrested and remanded for 3 days for doctoring photo of prime minister and wife and stating they were involved in an air crash

Communications and Multimedia Act, section 233(1)

Teresa Kok, DAP vice-chairperson

6 May 2014

Charged for publishing a satirical video mocking the government.

Sedition Act

Abdullah Zaik Abd Rahman, president of NGO Ikatan Muslimin Malaysia (ISMA)

6 May 2014

Charged for statement calling Chinese who came to Malaya during the colonial era trespassers.

Sedition Act

Kamarulzaman Karim, aged 61

27 May 2014

Charged under syariah law for possessing books deemed to be against Islam. Convicted and sentenced to two months jail and fine of RM1,000.

Syariah Criminal Offences Act (Federal Territories) 1997, section 13(b)

17 transgender women

8 Jun 2014

Arrested and charged for cross-dressing at a wedding function in Negeri Sembilan

Negeri Sembilan Shariah Criminal Enactment 1992, section 66

Shahima Edayu Akma, singer

18 June 2014

Charged under Syariah law for ‘indecent dressing’ during a show, fined RM1,000.

Not specified.

J Gopinath, 28 years old

19 June 2014

Charged for Facebook posting on Prophet Muhammad.

Sedition Act

15 Anti-Lynas activists

8 Jul 2014

Charged with rioting for being involved with protest against a rare earth refinery in Gebeng, Pahang

Penal Code, section 147

Sim Kwang Yung

20 July 2014

Investigated for statements posted from her Facebook account blaming the Malay Muslim pilot for the MH370 disappearance. The account was later found to be hacked.

Sedition Act

DAP adviser Lim Kit Siang

22 Jul 2014

Police investigation in relation to article ‘Malaysians will not rest until justice is done for the killing of Teoh Beng Hock’

Sedition Act

Shahul Hamid, religious teacher

7 Aug 2014

Investigated for insulting Hinduism in a video clip.

Sedition Act

Communications and Multimedia Act, section 233(1)

Kelvin Yip

4 Aug 2014

Investigated for posting a remark about the Muslim azan call to prayer on Facebook.

Sedition Act

Owner of Facebook account “Chandra Lawan Tetap Lawan”

8 Aug 2014

Investigated for a gory accident scene with an edited picture of the Yang di-Pertuan Agong

Sedition Act

PKR vice-president Chua Tian Chang

12 Aug 2014

Charged for using insulting words against police officer who was seizing his mobile phone.

Penal Code, section 509

Form Five student, aged 17

13 Aug 2014

Investigated for clicking ‘Like’ on a Facebook page named ‘I love Israel’.

Sedition Act

PKR vice-president N Surendran

19 Aug 2014

Charged for criticising court’s judgment finding Anwar Ibrahim guilty of sodomy

Sedition Act

Sugumaran Periasamy

22 Aug 2014

Charged for a Twitter post accusing the Yang di-Pertuan Agong of being partisan and following the wishes of the prime minister.

Sedition Act

Khalid Samad, PAS member of Parliament

26 Aug 2014

Charged for calling for a review of the Selangor Islamic Affairs Council’s powers.

Sedition Act

RSN Rayer, DAP Penang state assemblyperson

27 Aug 2014

Charged for making an insulting remark about Umno

Sedition Act

PKR vice-president N Surendran

28 Aug 2014

Charged for accusing the prime minister of being responsible for attempting to jail Anwar and the haste in the Federal Court’s hearing of Anwar’s appeal.

Sedition Act

Rafizi Ramli

28 Aug 2014

Charged for insulting remarks about Umno in a press interview.

Penal Code, section 504

154 members of the Penang Voluntary Patrol Unit (PPS)

31 Aug 2014

Arrested and detained overnight for being part of the voluntary patrol squad set up by the DAP-led state government for alleged participation in an illegal society.

Societies Act

Viktor Wong and Nasrul Omar

1 Sep 2014

Inspector-General of Police tweeted that they would be investigated for disparaging remarks made about him and the police.

Sedition Act

Communications and Multimedia Act, section 233(1)

Azmi Sharom, Associate Professor

2 Sep 2014

Charged for opinion that dismissal of Perak Menteri Besar (chief minister) in 2009 by Sultan of Perak was “legally wrong”

Sedition Act

Susan Loone, Malaysiakini journalist

4 Sep 2014

Arrested in relation to news article entitled ‘Exco man grilled for four hours, treated like a criminal’

Sedition Act

David Orok, State Reform Party member, Sabah

4 Sep 2014

Charged for comments on Facebook about the prophet Muhammad and his teachings about women

Sedition Act

Ho Leng Hong, PKR member

4 Sep 2014

Investigated for organising a flash mob mocking the prime minister’s remarks about the price of kangkung (a leafy vegetable) falling.

Penal Code, section 500 – criminal defamation

Mosque official and PAS member

6 Sep 2014

Investigated for criticising police action against a voluntary patrol squad unit set up in Penang.

Sedition Act

Ali Abdul Jalil, activist

8 Sep 2014

Repeatedly charged (four times in 15 days) for criticising the monarch on Facebook

Sedition Act

Chow Mun Fai, site supervisor

9 Sep 2014

Charged for making disparaging remarks about Islam on Facebook. Pleaded guilty and sentenced to one-year imprisonment.

Communications and Multimedia Act, section 233(1)(a)

Wan Ji Wan Husin, Muslim preacher

10 Sep 2014

Charged for remarks about the Sultan of Selangor on his Facebook page and questioning the position of the Malay rulers as the heads of Islam.

Sedition Act

Doris Jones, administrator of Facebook page calling for Sabah and Sarawak to leave Malaysia

11 Sep 2014

Investigated for sedition and by MCMC

Sedition Act

Communications and Multimedia Act

Wong Hoi Cheng

15 Sep 2014

Charged for insulting the police and comparing the Inspector-General of Police as Nazi general Heinrich Himmler

Penal Code, section 504

Edmund Bon, lawyer

20 Sep 2014

Investigated for making a statement that non-Muslims are not subject to fatwas or the Syariah court

Sedition Act

Syafiq Abdul Wahid

23 Sep 2014

Charged for posting on a parody Facebook page about placing a bomb against places that ‘anger God’.

Penal Code, section 505(b)

Kelantan state executive councillor

21 Sep 2014

Investigation for remarks made at a speech during a by-election campaign.

Sedition Act

Tan Jye Yee (Alvin Tan), blogger

29 Sep 2014

Investigated for criticising the prime minister, Inspector-General of Police and home minister on Facebook.

Sedition Act

Abdul Aziz Bari, law professor

30 Sep 2014

Investigated for remarks about the Sultan of Selangor’s role in the tussle for the Menteri Besar (chief minister) position in Selangor.

Sedition Act

Dalbinder Singh Gill, law student

1 Oct 2014

Detained and investigated for Facebook comments questioning affirmative action for bumiputera and the monarchy.

Sedition Act

A Rajaretinam

2 Oct 2014

Charged for posting an insulting statement on his Facebook page about how a certain ethnic group could not be trusted.

Penal Code, section 504

A man (no further information provided)

14 Oct 2014

Arrested and investigated for placing a slipper on a poster of the prime minister during a protest.

Penal Code, section 504

Fahmi Zainol, student leader and nine other undergraduates

10 Nov 2014

Detained while giving a speech at a weekly market in Kota Kinabalu, Sabah.

Not specified

Tan Keng Hong

21 Nov 2014

Charged for insulting police officers on his Facebook status.

Communications and Multimedia Act, section 233(1)

Haniza Talha, Selangor state assemblyperson

8 Dec 2014

Investigated for remarks commenting on expenditure by charity organisation headed by the prime minister’s wife.

Sedition Act

BFM 89.9

17 Dec 2014

Fined RM10,000 by Malaysian Communications and Multimedia Communication for breaching licence conditions

Communications and Multimedia Act 1998, section 206(3) and 243

BFM 89.9 presenters Sharaad Kuttan, Caroline Oh, Ezra Zaid, Umapagan Ampikaipakan, Patrick Teoh

18 Dec 2014

Investigated for allegedly making seditious and insulting comments on Islam

Penal Code, section 505(c)

Notes

1 The Malay Mail Online, ‘Constitutional expert Aziz Bari next academic under sedition scope’, 30 Sep 2014, http://www.themalaymailonline.com/malaysia/article/constitutional-expert-aziz-bari-next-academic-under-sedition-scope

2 The Malaysian Insider, ‘UM’s Azmi Sharom charged with sedition over remarks made on Perak constitutional crisis’, 2 Sep 2014 http://www.themalaysianinsider.com/malaysia/article/ums-azmi-sharom-charged-with-sedition-over-remarks-made-on-perak-consitutio

3 The Star, ‘Edmund Bon investigated for sedition’, 12 Sep 2014, http://www.thestar.com.my/news/nation/2014/09/12/edmund-bon-sedition-probe/

4 The Malaysian Insider, ‘Over 100 people arrested in latest crackdown on Shia Muslims’, 9 Mar 2014, http://www.themalaysianinsider.com/malaysia/article/over-100-people-arrested-in-latest-crackdown-on-shia-muslims

5 The Malaysian Insider, ‘UM lecturer now under probe over article on police’, 27 Mar 2015, http://www.themalaysianinsider.com/malaysia/article/um-lecturer-now-under-probe-over-article-on-police

6 The Malaysian Insider, ‘Anifah playing to the gallery, Anwar tells court in defamation suit’, 17 Feb 2015, http://www.themalaysianinsider.com/malaysia/article/anifah-playing-to-the-gallery-anwar-tells-court-in-defamation-suit

7 The Star, ‘Hearing of Anwar’s defamation suit against Khairy set for May 7’, 24 Oct 2014, http://www.thestar.com.my/News/Nation/2014/10/24/Court-Anwar-Khairy-defamation-suit/

8 Malaysiakini, ‘Najib, Umno sue Mkini over readers’ comments’, 3 Jun 2014, http://www.malaysiakini.com/news/264611

9  https://freedomhouse.org/report/freedom-world-2015/table-country-ratings#.VPPMvvmUfSE

10 https://freedomhouse.org/report/freedom-world-2015/regional-trends#.VPPNovmUfSE

11 IHEU, Freedom of Thought 2014, page 16, http://freethoughtreport.com/download-the-report/

13 The Malaysian Insider, ‘Putrajaya lifts suspension on the Heat’, 27 Jan 2014, http://www.themalaysianinsider.com/malaysia/article/putrajaya-lifts-suspension-on-the-heat

14  Malaysiakini, ‘After two court victories, Mkini still denied permit’, 2 Oct 2014, http://www.malaysiakini.com/news/276359

15 https://index.rsf.org/#!/

18 The Malaysian Insider, ‘Amendments to the Prevention of Crime Act passed with 2-year detention without trial’, 3 Oct 2013, http://www.themalaysianinsider.com/malaysia/article/amendments-to-prevention-of-crime-act-passed-with-2-year-detention-without

20 The Malaysian Insider, ‘Court lifts ban on Zunar’s cartoon books’, 9 Oct 2014, http://www.themalaysianinsider.com/malaysia/article/court-lifts-ban-on-zunars-cartoon-books

21 Muhamad Juzaili Mohd Khamis & 2 Ors v State Government of Negeri Sembilan & 4 Ors, Court of Appeal (2014), http://mltic.my/dispute/judgments/muhamad-juzaili-bin-mohd-khamis-and-2-others-v-state-government-of-negeri-sembilan-and-4-others-MY11521.html

23 Muhamad Juzaili Mohd Khamis & 2 Ors v State Government of Negeri Sembilan & 4 Ors, Court of Appeal (2014), http://mltic.my/dispute/judgments/muhamad-juzaili-bin-mohd-khamis-and-2-others-v-state-government-of-negeri-sembilan-and-4-others-MY11521.html

24 CIJ, ‘Banning Anwar from UM demonstrates lack of academic freedom’, 31 Oct 2014, http://cijmalaysia.org/2014/10/31/banning-anwar-from-um-demonstrates-lack-of-academic-freedom/

25 ‘Open Letter to the Prime Minister and around the Leadership of the Parliament of Malaysia’, https://www.Facebook.com/permalink.php?story_fbid=1599679093598219&id=1597383697161092

26 The Star, ‘Group of prominent Malays calls for rational dialogue on position of Islam in Malaysia’, 7 Dec 2014, http://www.thestar.com.my/News/Nation/2014/12/07/Group-prominent-malays-calls-for-moderation/

27 The Malaysian Insider, ‘“I want to touch a dog” event a bit hit with Muslims’, 19 Oct 2014, http://www.themalaysianinsider.com/malaysia/article/i-want-to-touch-a-dog-event-a-big-hit-with-muslims

28 The Malaysian Insider, ‘Threats to kill, beat up “touch a dog” organiser surface online’, 22 Oct 2014, http://www.themalaysianinsider.com/malaysia/article/threats-to-kill-beat-up-touch-a-dog-organiser-surface-online

29 The Malay Mail Online, ‘Syed Azmi, the “Touch a Dog” organiser who turned hero and villain in a week’, 26 Oct 2014, http://www.themalaymailonline.com/malaysia/article/syed-azmi-the-touch-a-dog-organiser-who-turned-hero-and-villain-in-a-week