Criminal defamation laws used to prosecute online criticism of religion and monarchy

Criminal defamation laws used to prosecute online criticism of religion and monarchy

On 14th March 2019, the United Nations Human Rights Council adopted the final outcome of Malaysia’s third Universal Periodic Review (UPR). Malaysia accepted 147 of the 268 recommendations. At least 13 recommendations were related to civic space including repealing or revising restrictive laws such as the Sedition Act, provisions of the Communications and Multimedia Act and the Printing and Publication Act; to guarantee the freedoms and safety of human rights defenders; to ensure a free, independent and diverse media landscape and to take measures to create a safe and enabling environment for the media and civil society.

During the adoption session, human rights groups called on Malaysia to repeal restrictive legislation, including the Sedition Act, Section 233 of the Communication and Multimedia Act, which have been used extensively to criminalise and silence human rights defenders, journalists and dissidents. There were also calls to repeal or amend legislation which continue to be misused to arbitrarily detain individuals without trial, including the Security Offences (Special Measures) Act, the Prevention of Terrorism Act, and the Prevention of Crime Act. In addition, FORUM-ASIA and its members SUARAM and Pusat Komas, called on the government to ratify the International Covenant on Civil and Political Rights (ICCPR) and other core international human rights treaties.

In recent months there have been arrests and prosecution of individuals under defamation laws for criticising the monarchy and religion while human rights defenders continue to face police questioning. A women’s day march has come under attack while the indigenous Orang Asli community continues to defend their land against encroachment.

Expression

Three arrested under Sedition Act for criticism of monarchy

On 8th January 2019, the police arrested two men and one woman for allegedly insulting King Sultan Muhammad V on social media after he abdicated his position. The three will be investigated under Section 4(1) of the 1948 Sedition Act. Few days after their arrest, the government instructed the Malaysian Communications and Multimedia Commission (MCMC) to monitor all social media, in particular comments and criticisms against the institution of the monarchy.

Amnesty International Malaysia expressed its concern around the arrests, commenting that “the news of the arrest is a major step backwards in promoting the freedom of expression in the country”. Local human rights groups SUARAM, pointed out that “irrespective of the offensive or unsavoury nature of comments made on social media, comments or expression which do not incite violence against others should not be criminalised or needlessly silenced”.

Individuals charged and convicted for social media postings 

In recent months, there have been a number of individuals prosecuted for allegedly insulting Islam online. On 27th February 2019, a man went on trial in the Kuala Lumpur Sessions Court on two charges for uploading on Facebook a caricature deemed insulting to the Prophet Muhammad and his wife Siti Aisyah on 17th February 2019. His first charge was under Section 298A(1) of the Penal Code for “spreading words that cause disharmony, disunity, or feelings of enmity, hatred or ill will, or prejudicing, the maintenance of harmony or unity, on grounds of religion”. It provides an imprisonment of up to five years, if found guilty.

The second charge was for transmitting offensive communication with the intent to cause annoyance to other people on his Facebook account under Section 233(1)(a) of the Communications and Multimedia Act 1998. The misuse of communication networks carries a maximum one year in jail or a fine of up to 50,000 ringgit (USD 12,200), or both.

A day earlier, a factory operator was charged in the Shah Alam Magistrate’s Court for uploading a Facebook post that insulted Islam, the previous week. The charge was made under Section 298A(1) of the Penal Code (see above). A. Taneson, however, pleaded not guilty to the charge.

Commenting on these cases, The Centre for Independent Journalism (CIJ) Executive Director, Sonia Randhawa, highlighted that section 298A(1) had been declared unconstitutional in 1987 by the Supreme Court and again in 2014 by the Court of Appeal. She said section 298A (1) had been declared void in all states, except for the Federal Territories where it was only applicable to Muslims. 

On 9th March 2019, the Kuching Sessions Court sentenced Alister Cogia, to ten years and ten months of jail for insulting Islam and the Prophet Muhammad on Facebook. He was charged under Section 298A(1)(a) of the Penal Code and Section 233 of the Communications and Multimedia Act 1998. According to reports he did not have legal representation in court. This is believed to be the harshest penalty on record for such an offence.

According to Andrew Khoo, a Malaysian human rights lawyer, this is an "unprecedented" situation. He said:

"For someone to face five separate charges, and for the sentences to be served consecutively - this is excessive. And according to press reports, the accused was unrepresented. That in itself is a travesty of justice.”

On 11th March 2019, Mohamad Yazid Kong Abdullah, was sentenced by the Kuala Lumpur Sessions Court to seven months’ jail and fined RM10,000 (USD 2,500) for insulting Islam and Prophet Muhammad in a post on his Facebook account on 24th February. Two others, Chow Mun Fai and Danny Antoni who are also facing the same charges, pleaded not guilty.

On 15th March 2019, a Facebook user identified as Sharil Chain was detained for allegedly posting insulting comments against the King and the royal institution. The 36-year-old suspect was arrested in Sungai Petani, Kedah under section 4(1) of the Sedition Act 1948 and Section 233 of the Communications and Multimedia Act 1998.

On 21st March 2019, lorry driver, Karitikesoo Valu from Puchong, Selangor, was charged under Section 233(1)(a) of the Communications and Multimedia Act 1998 with misusing internet services by posting a message against ethnic Malays and Islam on Facebook. He was charged with committing the offence in January using the Facebook account of “Suresh Don Don”.

On 7th March 2019, the government announced that it had set up a special unit to monitor insults against Prophet Muhammad and Islam. Analysts believe these arrests are politically motivated to stem the growing appeal of the opposition alliance between the former ruling party the United Malays National Organisation (Umno) and the Malaysian Islamic Party” and to “pander to conservatives” in order to maintain a foothold with the ethnic Malay Muslim vote bank.

Ongoing harassment of human rights group chief

On 6th December 2018, Sevan Doraisamy, Executive Director of prominent national human rights group Suara Rakyat Malaysia (SUARAM), was called in by the police for questioning under Section 4(1) of the draconian 1948 Sedition Act.

The questioning of Sevan was in relation to his role as one of the advisors of Malaysia Muda, an online blog where human rights lawyer and activist Fadiah Nadwa Fikri has been accused of allegedly writing a seditious article about the monarchy in July 2018. Fadiah, was questioned in September 2018, under the Sedition Act and Section 505 of the Penal Code for making statements “that could cause public mischief” . She has refuted this, claiming that her words were twisted.

Speaking to reporters outside of the police station, Sevan pointed out that “they have investigated this issue enough. The police have received enough statements and done enough questioning over the article. There is no need for the investigation to continue…we still believe that the Sedition Act must be abolished as soon as possible. The government promised to table (the bill)”.

UN Special Rapporteur raises concerns about restrictions to artistic expression and books

In January 2019, the UN Special Rapporteur in the field of cultural rights released her report on Malaysia based on her country visit in 2017. In the report she raised several concerns on the restrictions to freedom of artistic expression imposed on a number of artistic and cultural practices at the state level, and on authors, publishers, filmmakers and artists at the federal level.

The rapporteur said that “the bans and restrictions in the state of Kelantan that target vibrant cultural heritage practices, such as Mak Yong, Wayang Kulit, Main Puteri and Dikir Barat, art forms, are particularly worrying”. She also urged the government to “review and clarify the criteria for censorship of books and films and to make the decision-making process more transparent so as to guarantee freedom of artistic expression”. According to her, terms such as “controversial” or “sensitive” are too subjective to conform to international standards on freedom of expression. The rapporteur also raised concerns about the banning of books, including some about moderate and progressive Islam.

Peaceful assembly

Organisers of peaceful Women's March investigated 

On 9th March 2019, around 600 people peacefully took to the streets of Kuala Lumpur to march for women’s rights. The rally called for: ending violence based on gender and sexual orientation; banning child marriages; destroying patriarchy in society; ensuring women’s rights over their own bodies and lives; and ensuring a minimum wage of RM1,800 (USD 450).

According to the Women’s March organising committee, during the march several participants were allegedly harassed by a group of men, while others were attacked on social media, including civil society groups All Women’s Action Society Malaysia (AWAM) and Justice for Sisters.

After the rally, many newspapers criticised the march, disproportionately focusing their reporting on the lesbian, gay, bisexual, transgender and intersex (LBGTI) groups who participated in it and using disparaging language in their headlines. Subsequently, government officials accused the organisers of participating in an illegal assembly. Mujahid Yusof Rawa, the Minister in the Prime Minister's Department for Religious Affairs, stated that the march was ‘a misuse of democratic space’ because of the participation of LGBTI groups.

On 14th March 2019, the organisers announced that they were being investigated under Section 4(1) of the draconian Sedition Act 1948, as well as Section 9(5) of the Peaceful Assembly Act 2012. In a statement, the organisers said that they "will comply with the process despite these laws being unfairly and disproportionately being used against us”. On 18th March 2019, the police questioned three organisers of the march.

In a joint statement, 24 groups called “for the government to end all investigations against the human rights defenders, and take a rights based response in addressing this”, pointing out that the government “needs to defend the women’s march as people’s active participation in democracy and defend democracy as a space for all”. They further said:

“Denying a group of marginalised groups their right to participate in democracy is truly an abuse of democracy. In fact, democracy requires the participation of everyone, especially minorities and the marginalised. The current administration was built upon that very foundation of rule of law and justice, with promises made in its manifesto to ensure that women are prioritised and the marginalised are included.”

National, regional and international human rights groups have urged the government to halt the persecution of women human rights defenders and the LGBTIQ community, pointing out how the investigation under Sedition Act is alarming as the government had pledged to put a moratorium on its use and had committed to repealing it.

Association

Despite positive moves in Kelantan, indigenous Orang Asli still facing encroachment of their land elsewhere

In January 2019, the government announced it was filing a lawsuit against the state of Kelantan, runned by the opposition Islamic party, PAS for infringing the land rights of the indigenous Orang Asli people of Peninsular Malaysia. The authorities sued the state of Kelantan for granting logging rights to private companies without consulting the Temiar Orang Asli community or offering them compensation. 

As reported, the suit also named the state director of the lands and mines department, state director of the forestry department and five private entities as defendants. Attorney-general Tommy Thomas highlighted how "for the first time since Merdeka, the federal government is instituting legal proceedings on behalf of the Orang Asli in recognition of the federal government's constitutional and legal duty to protect and promote their wellbeing and advancement”.

Despite this move, in the state of Perak, held by the ruling government, the indigenous Orang Asli community claimed that the government had trespassed into their land to carry out logging. They denounced threats from the logging company and the Perak Forestry Department. As reported on 6th February, the villagers from Kampung Tasik Asal Cunex in Grik claimed the logging company brought in machinery in December 2018, damaging pipes that supplied water. When the villagers protested in January 2019 government authorities ignored their claims, so they set up a blockade. In March 2019, they alleged that the authorities had threatened them with rifles.

In February 2019, the head of the state government (Menteri Besar) of the Perak state, Ahmad Faizal, called on the protestors to reconsider their actions. In response, the former Malaysian Bar Council president George Varughese urged the Perak government to suspend all logging activities in areas that might overlap with lands claimed by the Orang Asli, and called on the federal government and the Department of Orang Asli Development to ensure that the customary land rights of the community are protected. He also suggested that a moratorium be imposed on activities within places claimed as Orang Asli customary land pending the resolution of their claims.

report by Amnesty International, released in November 2018, highlighted how indigenous communities across Malaysia face relentless harassment, intimidation, arrest, violence and even death as they peacefully resist attempts to force them off land they consider ancestral land.