Malaysia: Efforts to combat ‘hate speech’ should not trample freedom of expression

While the Malaysian government has an important role to play in curbing ‘hate speech’ and other forms of intolerance, it should avoid disproportionate measures that restrict speech protected by international human rights law, ARTICLE 19 said today. Rather than focusing solely on criminal measures to address the problem, Malaysian authorities should consider positive policy initiatives to address discrimination and conflict in society and to promote tolerance and intercultural understanding.

On Monday, Minister in the Prime Minister’s Department for Religious Affairs Datuk Seri Dr Mujahid Yusof Rawa called for legislative action to counter the proliferation of ‘hate speech’ in Malaysia. He suggested that a specific ‘hate speech’ provision be incorporated into the Sedition Act without providing further details on the substance of the proposed amendment.

When faced with societal conflict and hateful rhetoric, governments around the world often make the mistake of embracing censorship and criminal penalties at the expense of more nuanced initiatives and more effective tools for promoting tolerance and inclusion,” said Matthew Bugher, ARTICLE 19’s Head of Asia Programme. “The Malaysian government is right to be concerned about hatred and intolerance impacting public discourse, but needs to ensure that its policy solutions are fit for purpose.”

In recent weeks, political leaders and the Malaysian public have become increasingly concerned about incendiary rhetoric concerning race and religion. The opposition to the incorporation of khat instruction into school curriculum by Chinese education group Dong Zong led to competing accusations of racism and nationalism. Exiled Indian Muslim preacher Zakir Naik has publicly disparaged Malaysians of Chinese and Indian descent, leading to calls for his prosecution and deportation. As public officials weighed in on the appropriate response to these and other events, the Malaysian Communications and Multimedia Commission issued a statement urging the Malaysian public to report ‘inappropriate’ online content relating to race, religion and royalty.

The Malaysian government has previously considered legislative proposals aimed at addressing racial and religious tensions. Last year, the government proposed three relevant draft laws: the Anti-Discrimination Bill, the National Harmony and Reconciliation Commission Bill, and the Racial and Religious Hatred Bill. However, the bills have not progressed, and discussions have instead turned to amendments to existing legislation to address the issue of ‘hate speech’.

‘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. For this reason, the incorporation of ‘hate speech’ provisions into criminal law frameworks is highly likely to result in the restriction of speech to a degree not permitted by international human rights law.

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 constitutes incitement to discrimination, hostility, violence or international crimes. These standards establish a high threshold for restricting speech and further imply the need to criminalise speech only when less extreme measures are insufficient.

International initiatives have provided a growing body of standards and recommendations to guide government efforts to combat intolerance and ‘hate speech’. In particular, Human Rights Council Resolution 16/18 sets out a universally agreed action plan by states for addressing intolerance on the basis of religion or belief, and 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 dialog, training government officials, promoting media pluralism, and creating ‘equality bodies’ to address conflict and intolerance.

It’s shocking to see a government that had previously promised the repeal of the Sedition Act now considering expanding its scope,” said Matthew Bugher. “If anything, restrictions on speech in Malaysia’s criminal code need to be narrowed, not broadened. Legislative reform efforts should be aimed at ensuring that legal provisions, including those relating to incitement, are tailored to international standards relating to freedom of expression and freedom of religion or belief.”

ARTICLE 19’s recommendations for Malaysia

ARTICLE 19 has repeatedly called for the repeal of the Sedition Act, which does not comply with the above standards governing restrictions on the right to freedom of expression. Moreover, the misuse of the Sedition Act to restrict legitimate expression has received significant criticism from the international community, including by UN Human Rights Council special procedures. ARTICLE 19 is concerned that the amendment of the Sedition Act to incorporate provisions relating to ‘hate speech’ will result in further restrictions of legitimate speech and deepen the law’s incompatibility with international human rights law.

ARTICLE 19 therefore urges the Malaysian government to focus its legislative efforts on ensuring that Penal Code provisions relating to incitement comply with the standards set forth in Articles 19(3) and 20(2) of the ICCPR, and on amending or repealing other laws that are inconsistent with the right to freedom of expression. The Malaysian government should also revive efforts to pass comprehensive anti-discrimination legislation in line with international human rights standards.

ARTICLE 19 is supportive of the Malaysian government’s initiative to create a National Harmony and Reconciliation Commission, but urges the government to consider whether SUHAKAM—Malaysia’s national human rights institution—is best placed to carry out the anticipated functions of the body; embed international human rights standards in relevant laws and processes; incorporate best practices and lessons learned from regional and international models; and facilitate meaningful public consultation of the development of any new body or process.

Finally, ARTICLE 19 urges the Malaysian government to participate in the upcoming Istanbul Process session, to be held in the Netherlands in November. The Istanbul Process is a series of meetings, initiated in 2011, to promote and guide implementation of Human Rights Council Resolution 16/18. It has enormous potential to be a strong vehicle for states to exchange knowledge and experiences and to explore innovative and human rights compatible approaches to promoting inclusivity, pluralism and diversity. Malaysia participated in the previous Istanbul Process session in Singapore in 2016.

The current moment offers an opportunity for the Malaysian government to respond to public outrage towards those spreading hate with impactful policy initiatives to promote tolerance and inclusion,” said Matthew Bugher. “Strong participation in the upcoming Istanbul Process meetings would demonstrate the government’s commitment to addressing these challenges in line with international standards and best practices.”