Summary
They are creating a culture of fear. If you engage in any
talk of public interest, the police may come to your house, you may be
arrested, taken to the police station, remanded. Even members of
Parliament are treated that way.
—Yap Swee Seng, former executive director of Suara Rakyat Malaysia (Suaram), Kuala Lumpur, April 14, 2015
Freedom of expression and assembly in Malaysia are currently under
attack, aided by the existence of broad and vaguely worded laws that the
government can wield to arrest, investigate, and imprison its critics.
The recent increase in use of laws that criminalize peaceful expression
is a step backward for a country that had seemed to be making progress
on the protection of rights. This report examines how the Malaysian
government is using and abusing such laws, and the ways in which the
laws themselves fall short of international standards.
In Prime Minister Najib Razak’s first term between 2009 and 2013, the
Malaysian government rescinded several laws, including the draconian
Internal Security Act (ISA), which had been regularly used to restrict
civil and political rights, including freedom of expression. During the
campaign leading up to the 2013 elections, Najib promised to repeal the
notorious Sedition Act as well. As long-time activist Hishamuddin Rais
told Human Rights Watch:
When the ISA was abolished, there was a sense of freedom. I
thought Malaysia was going in the right direction. When Najib promised
to abolish the Sedition Act, I thought: “We have arrived. We are on the
right path.”
That optimism has now evaporated. Faced with declining popularity and
rising public discontent on a range of issues, the prime minister has
responded by cracking down on critics and supporting new laws, such as
the 2015 Prevention of Terrorism Act (PTA), that replicate many of the
flaws in the laws that were repealed. In November 2014, Najib reneged on
his promise to repeal the Sedition Act and announced that
the law would instead "be strengthened and made more effective," with
"a special clause to protect the sanctity of Islam, while other
religions also cannot be insulted." In April 2015, the government
pushed through amendments providing for harsher penalties and further
restrictions on speech, particularly on social media.
The level of repression intensified in late 2014 and early 2015 as
the government faced increasing public criticism about the treatment of
former opposition leader Anwar Ibrahim and the imposition of a new goods
and services tax. A spiraling corruption scandal involving the
government-owned 1 Malaysia Development Berhad (1MDB), whose board of
advisors is chaired by Prime Minister Najib, led the government to block
websites and suspend newspapers reporting on the scandal and to
announce plans to strengthen its power to crack down on speech on the
Internet.
While the original focus of the crackdown appeared to be mainly
opposition politicians, as public criticism of the government has
spread, students, journalists, civil society activists, and ordinary
citizens have all been caught up in the wave of repression.
Student activist Adam Adli bin Abdul Halim, for example, has been
arrested six times for participating in peaceful protests against the
government and for calling for others to do the same. In September 2014,
he was convicted of sedition for a speech protesting the 2013 general
election and sentenced to one year in jail. He is currently on bail
pending appeal, and is now facing a new charge of participating in an
“unlawful street protest” in February and an investigation for “activity
detrimental to parliamentary democracy” for his role in organizing a
recent protest. Due to his activism he was suspended, and then
effectively expelled, from his teacher training course at Sultan Idris
Teacher Training College. He is currently studying law at a private
institution.
Asked why he continues to speak out despite the risks, Adli responded:
It is a duty for us to speak out when the government tampers
with the rule of law to keep themselves in power…. It is not about the
result or what is to be accomplished in the short term. Protest is
necessary to open up more democratic spaces…. Freedom of expression in
Malaysia is under duress by the state. The authorities are clearly not
in favor of the rights of free speech and expression.
Chua Tian Chang, vice-president of Malaysia’s opposition Parti
Keadilan Rakyat (PKR) (People’s Justice Party), is also paying the price
for speaking out about political issues. He is facing sedition charges
in one case and is being investigated for sedition in another, while the
government is appealing his acquittal of sedition charges in a third
case. On August 12, 2014, fresh charges were brought against him under
section 509 of the penal code for allegedly verbally abusing police
officials when months earlier they seized his mobile phone and iPad to
investigate one of his statements on social media. He was earlier
acquitted of participating in an illegal protest, but is now under
investigation for participating in a number of “unlawful assemblies” and
for wearing a banned yellow t-shirt bearing the logo of the Coalition
for Clean and Fair Elections (Bersih), a group that has been campaigning
for electoral reform since 2012. Chua says the government’s actions are
politically motivated:
For the authorities, everything I say is a problem.… If you
go for peaceful protest, they will catch you for assembling. If you
criticize government, they come after you for sedition.
Overly Restrictive Laws as a Tool for Repression
Since the end of colonial rule in 1957, Malaysia has been ruled by
coalitions dominated by the United Malays National Organization (UMNO).
The current coalition, Barisan Nasional (BN) (National Front), has ruled
since 1974. Throughout its more than 40 years in power, BN has used a
wide range of overly broad and vaguely worded laws to harass and silence
critics and political opponents. Some of these laws have been in place
since Malaysia gained independence from the United Kingdom in 1957,
while many others have been more recently adopted or amended.
Najib took office in April 2009 pledging to “uphold civil liberties” and exhibit “regard for the fundamental rights of the people,”
but the use of broadly worded criminal laws to silence critics and
civil society activists has increased dramatically since the 2013
national elections in which BN held onto a parliamentary majority but
lost the popular vote. Since the run-up to that election, more than 200
people have been arrested or questioned by the police for doing nothing
more than offering peaceful criticism of the authorities or the
judiciary or peacefully exercising their right to freedom of assembly.
The weapon most frequently used in this crackdown, as the Adli and
Chua cases illustrate, has been Malaysia’s notorious Sedition Act, which
has been wielded against opposition politicians, civil society
activists, journalists, academics, and ordinary citizens using social
media.
In its efforts to silence critics, the government has also turned to
broadly worded provisions of the penal code, including sections 504 and
505(b), which criminalize speech that leads to a breach of “public
tranquility,” and section 499, which criminalizes speech injuring the
reputation of another person, alive or dead.
The Printing Presses and Publications Act (PPPA) has been used to
limit the number of printed newspapers, suspend publication of
newspapers that report on corruption, deter printing presses from
printing books critical of the government, and even to ban the Bersih
logo. The Communications and Multimedia Act (CMA) has been used to block
websites reporting on corruption, penalize radio stations for airing
discussions of matters of public interest, and arrest and prosecute
users of social media.
Those engaging in peaceful protest have been prosecuted under the
Peaceful Assembly Act (PAA) and section 143 of the penal code, which
criminalizes “unlawful” assemblies, while some of those organizing or
calling on people to attend peaceful rallies have been charged with or
investigated for sedition. In 2015, confronted with increased public
focus on allegations of corruption involving 1MDB, the government began
threatening those speaking out about corruption with charges of
“activity detrimental to parliamentary democracy” under sections 124B
and 124C of the penal code. The government did not appear to understand
the irony of using a law designed to protect democracy to censor
critical speech.
Laws that impose criminal penalties for peaceful expression are of
particular concern because of their chilling effect on free speech. As
the UN special rapporteur on the promotion and protection of the right
to freedom of opinion and expression has stated, with such laws in
place,
Individuals face the constant threat of being arrested, held
in pretrial detention, subjected to expensive criminal trials, fines
and imprisonment, as well as the social stigma associated with having a
criminal record.
Many of the individuals Human Rights Watch interviewed referred to a
“culture” or “climate” of fear in Malaysia. Fear leads to
self-censorship, and self-censorship leads to a stifling of the
political debate that is at the very core of a democratic society.
Targeting the Political Opposition
Members of the political opposition have long been a particular
target of Malaysia’s more repressive laws, and that trend has continued
during the government’s most recent crackdown. At least five opposition
members of parliament have been charged under the Sedition Act for
criticizing the government, government officials, or the judiciary since
the elections, and at least three have been charged under other
criminal laws. If convicted and sentenced to more than a year in prison
or fined more than 2,000 Malaysian ringgit (RM) (approximately US$482),
they will be disqualified from serving in parliament for five years
after their release from any term of imprisonment. Opposition
politicians serving in state assemblies and those playing leading roles
in opposition political parties have also been targeted during the
crackdown.
Prominent opposition figures faced sedition charges under Najib’s
administration as early as 2009, when the prominent lawyer and MP Karpal
Singh was charged with that offense. After a lull, during which there
was hope that the law would be repealed, the government resumed
aggressive use of the Sedition Act shortly after the 2013 elections,
when PKR MP Tian Chua and Parti Islam Se-Malaysia (PAS) MP Tamrin Ghafar
were charged with sedition for speeches they made at a public rally
protesting the outcome of the elections. In May 2014, Democratic Action
Party (DAP) Vice President Teresa Kok was charged with sedition for her
satirical Chinese New Year video “Onederful Malaysia CNY 2014,” which
depicts Kok as the host of a talk show in which her guests satirize
political issues ranging from corruption to Malaysia’s crime rate. The
crackdown intensified in August 2014, with five opposition politicians
charged with criminal offenses during that month alone:
- PKR Vice President and lawyer N. Surendran was charged with sedition
twice, in both cases for statements he made about the sodomy case
against his client Anwar Ibrahim;
- Former Perak Chief Minister Mohammad Nizar Jamaluddin, from the
opposition Parti Islam Se-Malaysia, was charged with criminal defamation
on August 25 for remarks he had made about Prime Minister Najib during
the election campaign in April 2012;
- Khalid Samad, a member of parliament from PAS, was charged with
sedition on August 26 for remarks he made regarding the Selangor State
Islamic Religious Council, a government body that advises the sultan of
Selangor;
- DAP Penang State Assemblyman R.S.N. Rayer was charged with sedition on August 27 for saying “celaka celaka
UMNO” (“damn, damn UMNO”) to several state assemblymen of the United
Malays National Organization during an assembly session in May 2014; and
- PKR Secretary General Rafizi Ramli was charged on August 28 with
violating section 504 of the penal code, which criminalizes “intentional
insult with intent to breach the peace,” for a statement he made
alleging that right wing groups who were staging protests in front of
churches in Selangor were being orchestrated and supported by the UMNO.
The police have also investigated, and in many cases arrested and
held in custody for several days, at least 20 opposition politicians
since August 2014, some of them multiple times.
Targeting Civil Society
Activists and civil society groups who criticize the government have
also come under increasing pressure. Student activists Adam Adli bin
Abdul Halim and Safwan Anang and long-time civil society activist
Hishamuddin Rais were all charged with sedition after speaking at the
May 13, 2013, public meeting at which Tian Chua and Tamrin Ghafar also
spoke. All three have since been convicted and are on
bail pending appeal, and all have been subjected to further arrests and
investigations for their involvement in protests against corruption and
participation in the demonstrations that followed the February 2015
sodomy conviction of Anwar Ibrahim.
The decision by the Federal Court of Malaysia, on
February 10, 2015, to uphold Anwar Ibrahim’s sodomy conviction and
sentence led to an explosion of public criticism, followed by a
concerted crackdown on those who spoke out. Malaysian political
cartoonist Zulkifli Anwar Ulhaque, better known as Zunar, was charged
with a record nine counts of sedition on April 3, 2015 — one for each of
nine tweets he sent on February 10 criticizing the verdict. If
convicted on all counts, he faces up to 43 years in prison.
Comments on the government’s handling of religious
issues have also resulted in arrests and sedition charges. In one
notable example, Eric Paulsen, the executive director of Lawyers for
Liberty, was charged with sedition on February 5, 2015, for a tweet that
criticized the Malaysian Islamic Development Department (JAKIM), a
government agency, for issuing sermons that allegedly promoted
extremism. Paulsen was subjected to a frenzied media campaign that
included death threats, and was accused of insulting Islam. As Paulsen
himself noted in a tweet responding to the hate campaign: “My statement
was referring to JAKIM as a government agency. Criticism of JAKIM should
not be construed as insulting Islam.”
Paulsen was arrested for sedition a second time on
March 22, 2015, in connection with a tweet that criticized efforts by
the state government in Kelantan to introduce Sharia-based punishments.
Many other civil society activists have been
investigated, arrested, and harassed for exercising their rights to
freedom of expression or freedom of assembly.
Targeting the Media
The media have not been immune from the crackdown on peaceful
political commentary. Officials have denied licenses required under the
Printing Presses and Publications Act (PPPA) to news outlets viewed as
critical of the government, and government agents have threatened to
withdraw printing licenses from presses that publish books and other
material that officials dislike. The PPPA was also used to suspend
publication of two newspapers for three months for reporting on the
allegations of corruption involving the prime minister and 1MDB.
According to Editor-in-Chief and Co-Founder Steven Gan, the online news portal Malaysiakini routinely has to deal with lawsuits, as well as other forms of harassment:
One time we published a letter criticizing UMNO. The police
came and asked who wrote the letter, which was under pseudonym. We
protect identity to encourage free opinion. We refused to provide
details. The police confiscated our computers…. We have the police come
in at least once a month. It has become routine really. Someone files a
complaint and they want a statement.
The government has even initiated sedition investigations in at least
two cases in which journalists were merely reporting the news. In March
2015, three editors, the chief executive, and the publisher of The Malaysian Insider (TMI), an
online news portal, were arrested for sedition and violation of the
Communications and Multimedia Act. Their “offense” was to report that
the Malaysian Council of Rulers had rejected a proposal to amend federal
law to allow the implementation of Sharia-based punishments in the
state of Kelantan – a report which the Council of Rulers denied.
Targeting Social Media Users
The government crackdown on speech in Malaysia has affected not only
politicians and activists, but also ordinary citizens, particularly
those who use social media. As the project coordinator for Suara Rakyat
Malaysia (Suaram), a highly respected Malaysian human rights
organization that has been documenting the increased use of the Sedition
Act, observed:
Last year they started with politicians, then branched out
to lecturers and activists. People started realizing that it affects not
just political people but also ordinary people.
According to Suaram documentation, a number of ordinary citizens were
charged with sedition in 2014 for statements made on Facebook or other
social media, while many more were subjected to investigations and
arrests. J. Gopinath, a 28-year-old engineering assistant, was charged
with sedition on June 19, 2014, based on a 2012 Facebook posting that
was viewed as insulting to Islam. Although he had been arrested shortly
after the posting, he was not charged until after the start of the
post-election crackdown. Despite the fact that his post was in response
to a post insulting his Hindu faith, the individual who posted the video
to which he was responding was never prosecuted. He was convicted and
fined RM 5,000 (US$1,209).
The 2015 amendments to the Sedition Act seem specifically designed to
give the government more control over social media and the Internet.
These amendments make it an offense to “propagate” or “cause to be
published” seditious material, and enable the government both to order
the deletion of supposedly seditious material and to prohibit the person
who posted that material from having access to “any electronic device.”
Restrictions on Freedom of Assembly
Faced with rising public opposition, the Malaysian government is also
cracking down on individuals involved in protests. The government
initially did so by invoking section 9(5) of the Peaceful Assembly Act
(PAA), which makes it a criminal offense to hold a public assembly
without giving the government 10 days’ advance notice. Despite the fact
that this provision was held unconstitutional by the Malaysian Court of
Appeal on April 25, 2014, the government continued to invoke section
9(5) when arresting protesters until as late as April 2015, while also
adding charges of “unlawful assembly” under section 143 of the penal
code.
A series of peaceful protests held in the wake of the Federal Court
conviction of Anwar Ibrahim (the “KitaLawan” rallies) resulted in the
arrest of numerous opposition politicians and activists, many of whom
were arrested at night and held in custody for several days. As
Rafizi Ramli, one of the opposition politicians who has been repeatedly
arrested and held by the police points out: “The police are increasingly
using that route to frighten, harass, and keep people away from
important functions.”
A demonstration on March 23, 2015, at the Kuala Lumpur Customs House
intended to raise questions about the imposition of the new goods and
services tax resulted in the arrest of 79 people, including S.
Arutchelvan, then secretary general of the Parti Sosialis Malaysia (PSM)
(Socialist Party of Malaysia). On April 23, 2015, 50 of those activists
and politicians were charged under section 447 of the penal code and
section 21(d)(1) of the Peaceful Assembly Act for criminal trespass and
not abiding by an order to disperse. A largely peaceful rally against
the goods and services tax, held on May 1, 2015, resulted in another
wave of arrests, including that of prominent lawyer Ambiga Sreenevasen,
who was detained for sedition and illegal assembly and held overnight.
Public indignation at reports implicating Prime Minister Najib in the
1MDB scandal and at the government’s response to that reporting led to
an August 1 protest organized by student activists calling for Najib to
resign. A much larger 34-hour protest, organized by Bersih and held on
August 29 and 30, also called for Najib’s resignation or for a vote of
no confidence against him, and for a host of institutional reforms to
tackle corruption. Despite the fact that both protests were peaceful,
the organizers were accused of “activity detrimental to parliamentary
democracy” and arrested or summoned for questioning, as were some of the
participants. No charges related to those protests have yet been filed.
Abusive Police Tactics and Selective Prosecution
The use of overly broad laws to crack down on dissent has been
accompanied by a disturbing use of aggressive tactics that seem designed
to harass and frighten those critical of the government. Instead of
asking government critics to come to the police station to make a
statement, the police arrest them, often at night, and sometimes with
threatening and unnecessary displays of force. After the KitaLawan
assembly held on March 28, 2015, for example, six carloads of police
came to the house of PAS MP Khalid Samad at 3:20 a.m. the following
morning to arrest him for sedition and unlawful assembly. Many of the
officers were carrying M16 assault rifles. He was released from custody
at 9:30 p.m. He has not yet been charged with an offense.
In some cases, the police appear to be using arrest and remand as a
form of preventive detention. In the days preceding the KitaLawan rally,
the police arrested at least four activists and opposition politicians
involved with the rallies. Rafizi Ramli and Hishamuddin Rais were both
arrested on March 27 and held until after the conclusion of the March 28
rally. Rais was seized by a group of men wearing plainclothes as he got
out of a taxi the evening of March 27: “As I leaned forward to pay the
taxi they grabbed me. One put his arm around my neck and pulled me,
squeezing my neck. They were not wearing uniforms and did not identify
themselves.”
After being driven around Kuala Lumpur for a while, he was finally
taken to the Dang Wangi police station and detained overnight. The
following day, the police asked that he be remanded for four days so
that they could complete their investigation into violations of section
9(5) of the Peaceful Assembly Act and section 143 of the penal code. He
was finally released at the end of his remand. While he had not been
charged as of the time of his interview, he noted that “at any time they
can trigger this bomb.”
For opposition figures and activists, or those perceived as such, the
police frequently request the maximum remand of four days even where
there is no apparent justification for doing so. Hishamuddin Rais noted
that when he was finally questioned on the last day of his four day
remand, after three days during which no investigation appeared to take
place, “they asked very little: just the basics like name, age, and
profession.”
Cases involving individuals perceived as sympathetic to the ruling
coalition are handled quite differently, if they are pursued at all.
When Mashitah Ibrahim, a former deputy minister in the ruling coalition,
made a false claim that Malaysians of Chinese descent were “burning
Qurans,” she was not arrested or remanded, but simply asked to come in
and give a statement. The inconsistent treatment by the police of those
perceived as pro-opposition and those perceived as pro-government
creates a troubling appearance of bias in the handling of criminal
cases.
