Written by Nalini Elumalai, Senior Malaysia Programme Officer at ARTICLE 19.
18 June, the International Day for Countering Hate Speech will be marked for the first time in 2022 after it was proclaimed by the UN General Assembly through its resolution on “promoting inter-religious and intercultural dialogue and tolerance in countering hate speech” adopted in July 2021.
The resolution recognises the need to counter discrimination, xenophobia and hate speech and calls on all relevant actors, including States, to increase their efforts to address this phenomenon, in line with international human rights law.
‘Hate speech’ is a severe human rights concern in Malaysia. It is often used to silence and intimidate minorities and scapegoat whole groups in society while stifling dissent. We must cease all forms of discrimination and hate with more progressive policies and initiatives from diverse stakeholders in society.
‘Hate speech’ under international human rights standards
There is no uniform definition of ‘hate speech’ under international human rights law. The term is often used to describe language that, while offensive or inflammatory, is protected by international standards relating to freedom of expression.
Under Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR), restrictions on the right to freedom of expression are permitted only if they are: (a) provided by law, (b) in pursuit of a legitimate aim, including protecting the rights of others, and (c) necessary and proportionate to that aim. Additionally, ICCPR Article 20(2) requires that governments restrict speech that incites discrimination, hostility, violence or international crimes. These standards establish a high threshold for determining speech and imply the need to criminalise speech only when less extreme measures are insufficient.
‘Hate speech’ and intolerance in Malaysia
Despite legislative protections in Malaysia, namely Article 8(2) of the Malaysian Constitution, which prohibits discrimination based on religion, race, descent, place of birth or gender, systemic discrimination against minorities persists. In recent years, hateful, homophobic and discriminatory language has been directed at LGBTQI communities, refugees, migrants, and religious minorities in Malaysia.
We have seen how those in power have continuously contributed to the hatred in this country against minorities. The recent incident of the escape of 528 detainees from the Sungai Bakap Immigration Detention Depot on 20 April, followed by the government’s perpetuation of malicious narratives against Rohingya refugees, raises urgent concerns about the government’s commitment to protecting human rights, including the rights to equality and non-discrimination.
Exacerbating these human rights violations, Malaysia relies on its antiquated 1948 Sedition Act and the Communications and Multimedia Act (CMA) to censor those who dare to speak about the 3Rs (race, religion, and royalty). In practice, these laws prioritise the protection of social institutions, namely the monarchy, religion and government institutions. Further, through the Malaysian Communications and Multimedia Commission (MCMC), the government has taken steps to censor and criminalise alleged online hate speakers with selective prosecution under repressive laws like CMA, the Sedition Act and Penal Code. Often, these laws are used to restrict legitimate speech that should be protected rather than targeting the speech that is prohibited by international human rights law, including incitement to violence. These laws also do not comply with the standards governing restrictions on the right to freedom of expression.
Discussion on the protection of minorities from discrimination and how to address hate speech in this society has never been timelier. Solutions to these problems should not rest on censorship. Too often, censorship of contentious issues or viewpoints fails to address the underlying social roots of the kind of prejudice that undermines the right to equality. Instead, there is a crucial need for more inclusive and non-discriminatory policies.
A growing body of international law and standards provide recommendations to guide government efforts to combat intolerance and ‘hate speech’. In particular, Human Rights Council Resolution 16/18 sets out a universally agreed-upon action plan by states for addressing prejudice based on religion or belief. The Rabat Plan of Action provides practical legal and policy guidance to states on implementing Article 20(2) of the ICCPR. These documents propose a range of positive policy measures to combat ‘hate speech’ that do not rely on criminal penalties, including facilitating interfaith dialogue, training government officials, promoting media pluralism, and creating ‘equality bodies’ to address conflict and intolerance.
The Malaysian government can implement these standards by training its own officials to refrain from promoting divisive and discriminatory environment. The government should urgently reform laws that have been used to censor legitimate expression, allowing a more diverse range of individuals in Malaysia to express themselves freely. Finally, the Malaysian government should revive efforts to pass comprehensive anti-discrimination legislation in line with international human rights standards.