Written by: Nalini Elumalai, Senior Malaysia Program Officer at ARTICLE 19
18 June 2023, marks the second annual commemoration of the International Day for Countering Hate Speech, first 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.
In recognition of this day, ARTICLE 19 calls on the Malaysian government to amend or repeal those laws which have been used to fuel the persecution of minorities, to ensure its legislative efforts combatting hate speech comply with international human rights norms, and to oversee complementary, structural social change to address the underlying causes of discrimination and persecution of minorities.
ARTICLE 19 reiterates that hate speech, as a form of discriminatory expression, is a severe human rights concern. It is often used to silence and intimidate minorities and scapegoat whole groups in society while stifling dissent, or inciting physical violence. Any form of discrimination and hate must be ended immediately with more progressive policies and initiatives from multi-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 it may be offensive or inflammatory, is actually protected by international standards relating to freedom of expression. For this reason, the incorporation of hate speech provisions into criminal law frameworks is often 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 incites discrimination, hostility, violence or international crimes. These standards establish a high threshold for circumscribing speech but also an obligation to prohibit speech that leads to incitement.
Deepening of hatred and censorship in Malaysia
Deepening polarisation over race and religion has affected Malaysian society and shaped its socio-political landscape. The use of religion and identity politics to intensify divisions within Malaysia has created a polarising atmosphere of hatred. Politicians, fundamentalists, and political parties commonly appeal to these divides to mobilize their supporters. They also make intermittent efforts to downplay one or more of these fissures to win the majority sentiments and secure power. The damaging effects of this polarisation were evident most recently after the 15th general election in December 2022, when identity-driven positions deepened the divisions between the majority and minorities within Malaysia. This increasingly polarising rhetoric causes intolerance, increasing apathy, endangering inter-ethnic harmony, and eroding social cohesion.
Despite legislation prohibiting discrimination based on religion, race, descent, place of birth or gender, Article 8(2) of the Malaysian Constitution, systemic discrimination against minorities persists. ARTICLE 19 is concerned by hateful, homophobic and discriminatory language and actions directed at LGBTQI communities, refugees, and migrants in Malaysia. Any form of national unity must include the rights of minorities, and there is a crucial need for more inclusive and non-discriminatory policies.
We have seen how those in power have continuously contributed to this hatred against minorities. Last year, the incident of the escape of 528 detainees from the Sungai Bakap Immigration Detention Depot, 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. The reckless and discriminatory comments by Hamzah Zainudin, the then Minister of Home Affairs, including a senseless call for refugees to leave Malaysia ‘if they want freedom’, likely contributed to the wave of hate speech towards Rohingya refugees that subsequently circulated on social media.
Recently, Malaysian authorities raided 11 nationwide outlets belonging to the Swiss watchmaker Swatch and seized over 100 colourful watches from their ‘Pride Collection”, created to celebrate the Pride movement and promote LGBTQ+ rights ahead of Pride Month in June. The Home Minister also allegedly issued warning notices to 5 other stores. Prime Minister Anwar Ibrahim has specified that the raids were due to the product line’s association with the LGBTQ+ community, reaffirming the arbitrary and discriminatory nature of the action. The raids and watch seizures were carried out under the Printing Presses and Publication Act 1984 (PPPA).
Discussion on the protection of minorities from discrimination and how to address hate speech has never been timelier. Meanwhile, solutions to these problems must 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.
Countering hate speech in Malaysia
Malaysia relies on its antiquated 1948 Sedition Act and the Communications and Multimedia Act (CMA). More modern legislation demarcates the limits of free speech and the protection of people against hate speech. In practice, these laws prioritise the protection of social institutions, namely the monarchy, religion and government institutions. The government has declared that any speech critical of the 3Rs (race, religion and royalty) will not be tolerated. Through its regulatory body, 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. Most of the time, problematic laws such as the Sedition Act, CMA and Penal Code are used to restrict legitimate speech that should be protected. These laws also do not comply with the standards governing restrictions on the right to freedom of expression.
Recently during a Parliament session, the National Unity Minister responded to a question from a parliament member whether the government had plans to formulate an anti-racial hate speech law or minority protection act. The minister responded that the government is not considering a new direction and that the remaining laws are sufficient. ARTICLE 19 believes that countering hate speech must be done in many ways, not just through the criminalisation of speech covered by ICCPR Article 20. The government must consider policy changes, civil and administrative measures to counter hate speech through a multistakehoder approach.
Creating an enabling environment for the right to freedom of expression and equality is not only an obligation of States under international human rights law, but it is also essential to ensure that opportunities to expose and counter hate speech are maximised. The Malaysian government must create an enabling environment for the right to freedom of expression and equality in Malaysia, including by passing comprehensive anti-discrimination legislation in line with international human rights standards.
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 prejudice based on religion or belief. The Malaysian government could participate in the Istanbul Process that promotes and guides the 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.
The Rabat Plan of Action provides practical legal and policy guidance to states on implementing Article 20(2) of the ICCPR. These documents and initiatives 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.
On this International Day for Countering Hate Speech, ARTICLE 19 reiterates its call for the Malaysian government to focus its legislative efforts on ensuring it complies with the standards outlined in Articles 19(3) and 20(2) of the ICCPR and 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.
For more information
Nalini Elumalai, Senior Malaysia Programme Officer [email protected]