Malaysian government continues to silence dissent with emergency and repressive laws

On 12th January 2021, the King of Malaysia, Al-Sultan Abdullah, declared a state of emergency in response to the surging COVID-19 cases in the country. The move was requested by Prime Minister Muhyiddin Yassin. The palace said the emergency would last until 1st August 2021, unless cases were brought under control earlier.

Human rights groups and opposition parties have questioned the basis of the emergency declaration. They have accused Muhyiddin of using the pandemic to cling to power by preventing the parliament from convening and determining if he still has the majority to form a government.

The Emergency (Essential Powers) Ordinance containing the emergency declaration was released on 14th January 2021. It provided Malaysia’s military with police powers, allowed the forced confiscation of property with no ability to challenge the compensation offered, and gave the government and military near total immunity for action taken under the ordinance. The ordinance also indefinitely postponed the holding of any elections and the sitting of the country’s parliament and state assemblies.

On 3rd March 2020, ARTICLE 19 and CIVICUS published a new civic space report on the record of the Perikatan Nasional government in its first twelve months in power. The report found that the government had undermined and obstructed the exercise of fundamental freedoms. It had not only failed to reform or repeal laws that restrict the rights to freedom of expression, peaceful assembly and association but - amid a global pandemic - had initiated baseless criminal proceedings against government critics, human rights defenders, journalists and individuals expressing critical opinions.

Despite this dismal record, Malaysia is seeking candidacy of the United Nations Human Rights Council for the 2022-2024 term.

In recent months, the police have investigated the former Attorney General related to his boo while the courts have convicted a leading new website Malaysiakini of contempt and opened up investigations into its editor-in-chief Steven Gan and MP Charles Santiago for criticising the verdict. The authorities are also investigating an activist for his caricatures and have issued a new restrictive ordinance criminalising ‘fake-news’. A human rights lawyer working on a case against logging is facing lawsuits, while the police are investigating 11 individuals for a peaceful protest. A transgender women is facing arrest and threats for insulting Islam.

Expression

Former Attorney General being investigated for book

On 7th February 2021 it was reported that the police had opened three investigation papers related to the contents of former Attorney-General Tommy Thomas’ memoir “My Story: Justice in the Wilderness” which is alleged to have defamed and insulted various parties. The book is an insider’s account of what went on in the short-lived Pakatan Harapan government which included his prosecution of several leading figures in what has come to be known as Malaysia’s 1MDB corruption scandal.

Police said they had received 134 reports nationwide on the matter. One of the investigation papers opened is in accordance with Section 500 of the Penal Code for defamation and another investigation paper was opened in accordance with Section 8 of the Official Secrets Act 1972. The third investigation paper was opened in accordance with Section 4(1) of the Sedition Act 1948. The home ministry also did not rule out the possibility that the book could be banned.

As part of the backlash against Thomas’ memoir, his publisher has also been caught in the crossfire. Under Malaysian law, both the publisher and printer can be liable for a book’s contents. The publisher, owned by Chong Ton Sin, was questioned by the police and on 19th February 2021 the police took two computers from the publisher as part of their investigations.

Court finds news site guilty of contempt

On 19th February 2021, news site, Malaysiakini, was found guilty of ‘contempt of court’ and fined the equivalent of 500,000 Malaysian ringgit (USD 124,000) for readers’ comments in one of its articles that were deemed to impugn the judiciary. The court however did not find its editor-in-chief Steven Gan - who was named by prosecutors as the second defendant - to be guilty of contempt.

The Attorney General had filed contempt charges in June 2020 against Malaysiakini and its editor-in-chief for comments which the Attorney General argued “threaten public confidence in the judiciary and are clearly aimed at tarnishing the administration of justice by the judiciary”. The Federal Court ruled that Malaysiakini was responsible for these comments.

Human rights groups, however, noted that the decision constitutes harassment against the independent news portal, which has reported widely on government abuse and corruption, and that making website owners and administrators criminally liable for third-party content is inconsistent with international human rights law.

The Centre for Independent Journalism (CIJ) said “the decision against Malaysiakini also raises the possibilities that online news portals may remove their respective comments sections to reduce the liability against third-party comments. This would mean that readers lose the opportunity to critique, form their own opinions and make dissenting or alternative positions, specifically on issues of public interest”.

Police investigating editor and MP over comments on court decision

Following the Malaysiakini contempt trial it was reported on 22nd February 2021 that Malaysiakini editor-in-chief Steven Gan and Klang MP Charles Santiago were under police investigation over their comments on the Federal Court’s decision.

The Kuala Muda district police chief confirmed that two separate police reports lodged were by an individual from an NGO based in Gurun, Kedah. Investigation papers were opened under Section 4(1) of the Sedition Act 1948 and Section 233 of the Communications and Multimedia Act (CMA) 1998.

Gan had commented that the contempt charges against Malaysiakini would have “a tremendous chilling impact on discussions of issues of public interest”, and that they are a blow to the news site’s campaign to fight corruption.

Member of Parliament Charles Santiago also faced questioning for sedition and under the CMA for his comments criticising the court decision. In an immediate response, Charles defended his right to comment on the case involving Malaysiakini, citing Article 10 of the Federal Constitution that grants citizens the rights to free speech and expression.

Artist probed for satirical caricatures

On 10th March 2020, it was reported that police had opened an investigation into activist and graphic artist Fahmi Reza for criminal defamation over two satirical caricatures of Health Minister Dr Adham Baba.

The caricature poked fun at Adham and made reference to a gaffe in March 2020 when the minister spread misinformation by suggesting that drinking warm water would prevent COVID-19 infection.

Fahmi said he was being probed under Section 500 of the Penal Code, which covers the punishment for criminal defamation. He was also being investigated under Section 233 of the Communications and Multimedia Act (CMA), a repressive law that has been aggressively applied against government critics. Putrajaya district police chief Mohd Fadzil Ali confirmed that the investigation was sparked by two police reports lodged by Health Ministry officials in October 2020.

Nalini Elumalai, ARTICLE 19’s Malaysia Programme Officer, said: “This arbitrary application of a repressive law could stifle artistic expression and discourage those seeking to hold government officials accountable for their actions. The authorities should recognise that public criticism is a fundamental aspect of democracy and work alongside civil society to identify and remedy government failings”.

This is not the first time he has been charged for his activism. As previously documented, Fahmi Reza was convicted by the Sessions Court in Ipoh and sentenced to a month’s jail and fined RM30,000 (USD 7,600) in February 2018. This was for posting a clown caricature of the former prime minister Najib Razak on social media and criticising him for his involvement in a corruption scandal involving billions of dollars. He was prosecuted under Section 233(1)(a) of the Communications and Multimedia Act. In November 2018, the court commuted Fahmi Reza’s one-month jail sentence and reduced his fine to RM10,000 (USD 2,500)

Anti-fake news ordinance issued

On 12th March 2021, using its new powers under emergency rule, the government issued a new regulation on ‘fake news’. The new ordinance draws heavily from the Anti-Fake News Act, a repressive law that was repealed in 2019.

The Emergency (Essential Powers) (No. 2) Ordinance 2021 establishes a number of criminal offences relating to ‘fake news’ about the COVID-19 pandemic and the Emergency Proclamation, which was promulgated for the stated purpose of combating the COVID-19 pandemic. The new offences include the creation, publication or dissemination of so-called ‘fake news’ and the failure to take down publications containing content deemed as ‘fake news’.

The law has been criticised for its vague and broad provisions, which would allow it to indiscriminately target critics and human rights defenders. Punishments include fines of up to 500,000 Ringgit (USD 121,500) and up to six years’ imprisonment. It fails to distinguish between content producers and intermediaries, grants the authorities unfettered access to personal data and limits legal challenges. The Ordinance establishes vague requirements for the preservation and disclosure of personal data which can be made privately and kept secret.

Prior to this, the government had primarily used the Communications and Multimedia Act 1998 (CMA) to police ‘fake news’ on COVID-19, imposing disproportionate penalties against individuals. As documented by ARTICLE 19 and CIVICUS, at least 13 cases related to “insulting the implementation of COVID-19 or Movement Control Order measures" between March 2020 and February 2021.

On 25th March 2021, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression sent a communication to the Malaysian authorities raising concerns about the ordinance and its inconsistency with international law and standards.

Association

Human rights lawyer threatened with lawsuits 

On 24th March 2021, human rights organisations FORUM-ASIA and Front Line Defenders raised concerns over contempt charges against Malaysian lawyer and human rights defender Charles Hector, along with eight other defendants he is representing in a case against logging companies.

The allegation stemmed from a letter that Hector had sent to a forestry officer questioning the contents of a previous letter from the officer. The logging companies Beijing Million Sdn Bhd and Rosah Timber & Trading Sdn Bhd, which were behind the move to initiate contempt proceedings, had argued that Hector’s letter constitutes a violation of a temporary injunction order that prevents defendants from blocking the plaintiff’s workers from accessing a contested area.

The eight defendants represented by Hector are from communities affected by logging activities in the Jerantut Permanent Forest Reserve. The defendants, along with their communities, depend on the forest reserve for clean water and their livelihoods. They also assert that their protest activities have been legal and peaceful. The hearing to decide whether to proceed with contempt charges has been postponed to April 2021.

Shamini Darshni Kaliemuthu, Executive Director of FORUM-ASIA said: “The use of legal proceedings to curtail the crucial role of human rights lawyers highlights the continuous risk and intimidation they face in their work, particularly when they defend individuals in cases involving powerful businesses.”

According to the two organisations, Malaysia has faced widespread deforestation and forest shrinkage in recent years. Despite attempts to revise laws to ensure protection for the forests, deforestation and infringement on ancestral lands have continued. Human rights lawyers and environmental defenders fighting against these are increasingly being targeted by corporations.

Peaceful Assembly

Undi18 peaceful protesters hauled up by police

On 27th March 2021, an estimated 100 protestors from civil society organisations and political parties marched towards Parliament to protest the Election Commission’s decision to delay the lowering of Malaysia’s voting age from July 2021 to September 2022. The move will affect about 1.2 million voters if elections are called before the end of this year.

As they arrived bearing banners saying “Mana undi kami?” (“where is our vote?”) and chanting “buka parlimen” (“open the Parliament”), the protesters sat down on the road heading to the building, which was earlier barricaded by the police.

On 29th March, news outlets reported that at least 11 individuals linked to the demonstration were called for questioning under the Peaceful Assembly Act (PAA) for gathering without notification, and the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Conditional MCO) (No. 4).

Responding to this, Katrina Maliamauv, executive director of Amnesty International Malaysia said: “The investigation of organisers of the Undi18 protest is a case of selective harassment. As economic and social activities resume and politicians gather to hold meetings and functions, the government is seeking to silence ordinary Malaysians”.

The Peaceful Assembly Act still lacks provisions to allow an exception to the notice requirement for spontaneous assemblies, where it is not practicable to give advance notice. Under international law, protests that are organised in rapid response to an unforeseen development and which, in the opinion of participants, cannot be postponed should not be subjected to prior notification procedures.

Arrest warrant and threats against transgender women for insulting Islam

LGBT+ activists have expressed concern over the arrest warrant issued against Nur Sajat, a transgender woman. On 23rd February 2021, the shariah high court issued a warrant of arrest for Nur Sajat after she failed to turn up for her case. Nur Sajat is accused of dressing up as a woman at a religious event three years ago and allegedly bringing Islam into contempt. She has also faced threats online for hinting she may convert.

Justice for Sisters founder Thilaga Sulathireh said “there were legitimate fears that those from the transgender community could fall victim to violence while they are in detention. She went on to cite a report by the Human Rights Commission of Malaysia in 2019 on transgender people which revealed that there were at least 60 instances of violence while in police custody”.

Malaysia’s state Sharia laws, which punish consensual same-sex relations as well as gender nonconformity, are among the many laws and policies that discriminate against LGBT people. State Sharia laws, enforced by state Islamic Religious Departments and tried in Sharia courts, are only applicable to Muslims, who make up about 60 percent of Malaysia’s population. In January 2021, there was a cabinet minister proposal to increase criminal penalties against LGBT people with a proposed amendment to the Syariah Courts (Criminal Jurisdiction) Act (Act 355).