Call to Malaysian government: End threats to press freedom and freedom of expression online

Joint Statement by the Association for Progressive Communications (APC) and Persatuan Kesedaran Komuniti Selangor (EMPOWER)
19 August 2015

Persatuan Kesedaran Komuniti Selangor (EMPOWER) and the Association for Progressive Communications (APC) denounce proposed reforms that would require online news portals in Malaysia to be registered. The proposed changes announced on 6 August by the newly appointed Communications and Multimedia Minister Datuk Seri Dr Salleh Said Keruak would empower the Malaysian Communications and Multimedia Commission (MCMC) to block sites deemed as “threats to national security and stability”, contributing to the crackdown on free expression in Malaysia. On 17 August, Dr. Salleh also instructed the MCMC to meet Facebook, Google and Twitter to seek their cooperation in blocking false information and rumours on their platforms.

According to Dr. Salleh, proposed reforms come in response to the need to tackle issues such as pornography, online gambling and Islamic State (IS) threats, among others. However, they must be viewed within the current political environment in Malaysia, where freedom of expression and peaceful assembly and association is under attack. It is highly unlikely that this move is intended for anything other than shutting down criticism and bringing into line what is left of the free press.

Maria Chin Abdullah from EMPOWER reminded the authorities that “internet freedom is an indispensable component of a democratic society as it enables participation by the people and encourages freedom of expression and freedom of information – without which accountability and transparency are not possible.” Maria added that “the proposed changes appear to be political in character as they strike to the core of the allegation of political corruption by the Prime Minister Najib Razak.”

The current legal and political environment in Malaysia is one in which repressive laws keep getting worse, including by targeting online activity. Since 2008, the Malaysian government has increasingly turned to regulation of the internet as a means to stifle dissent, as evidenced by the passing of the Prevention of Terrorism Act; amendments to the Sedition Act, which permit removal of online content and the ability to prohibit the use of ANY electronic devices by a person who has published seditious materials for an indefinite period of time; and the increasing use of Section 124 of the Penal Code.

Taken together with police surveillance of social media and recent developments regarding the MCMC’s warning against the circulation of “misinformation” on the 1MDB scandal on social media, the suspension of The Edge weekly, the blocking of Sarawak Report and the issuance of a warrant against Clare Rewcastle-Brown, it is virtually certain that online news portals will self-censor; they already face the threat of the Sedition Act and other laws.

Dr. Salleh’s comments come in the context of the government’s announcement that it is looking to introduce amendments to the Communications and Multimedia Act 1998 (CMA) and the Communications and Multimedia Commission Act 1998 (CMCA) in October. But the broad provisions in the current CMA already give the MCMC more than enough legal muscle to effectively shut down any website.

Section 211 of the CMA on “Prohibition on Provision of Offensive Content” and Section 233 on “Improper Use of Network Facilities or Network Service, etc.” provide that a person commits an offence if he or she posts any content deemed obscene, indecent, false, menacing or offensive in character with the intention to annoy, abuse, threaten or harass another person. In addition, other pieces of legislation further restrict the right to freedom of expression.

Furthermore, the proposed registration of online portals mirrors misguided legislation requiring that print publications apply for a permit, which is in itself repressive. With the Printing Presses and Publications Act 1984, the government has the power to grant or deny applications for a permit, as well as to withdraw licences, at any time without the possibility of judicial review. The Home Ministry has the authority to issue “show cause” letters to newspapers and other publications, under which they must explain the offending article or face suspension/revocation of their permits.

“We have already seen the crippling effect of licensing on traditional media through suspensions and withdrawals of licensing. This move expands an archaic, top-down, heavy-handed regulatory measure to control, choke and restrict our right to information and to our online spaces that we have invested in and shaped through our vibrant and dynamic participation,” said Jac sm Kee from APC.

The Malaysian government has the obligation to protect freedom of expression, including press freedom, online and offline. As the former UN Special Rapporteur on freedom of expression noted, attempts by governments to restrict, control, manipulate and censor content disseminated via the internet on the basis of broad and ambiguous laws and/or in a manner that is clearly unnecessary and/or disproportionate to achieving the intended aim are clearly incompatible with states’ obligations under international human rights law, and often create a broader “chilling effect” on the right to freedom of opinion and expression.

In the face of police and government crackdowns and revelations that the Malaysian government purchased spyware, a free media is more important than ever to bring the authorities to account for their actions and to disseminate information on people/CSO-led initiatives that advance government transparency and accountability, such as the Governance, Integrity, Accountability and Transparency (GIAT) Coalition and the Coalition for Clean and Fair Elections (BERSIH 2.0).

Oral Statement Delivered at the 29th UN Human Rights Council

Oral Statement Delivered at the 29th UN Human Rights Council for the Association for Progressive Communications and Persatuan Kesedaran Komuniti Selangor (EMPOWER)

18 June 2015, under Agenda Item 3

Thank you, Mr. President.

The Association for Progressive Communications (APC) and Persatuan Kesedaran Komuniti Selangor (EMPOWER) welcome the reports of the Special Rapporteurs.

We call for urgent attention to the deteriorating situation in Malaysia with regards to the rights to freedom of expression and association.

Despite promises by Prime Minister Najib Tun Razak to scrap the Sedition Act 1948, repressive amendments to the Act were rammed through Parliament in April 2015 after only a day of debate. We are concerned over new provisions on electronic media and devices, in the context of increased government and police surveillance of internet users in Malaysia. Under the new amendments, an individual may be prohibited from accessing any electronic device for an indefinite length of time. Anonymous online posts may be blocked.

The Sedition Act is only one of a number of laws giving broad powers to the authorities to criminalise legitimate expressions and to crack down on dissent. Detention without trial also made a comeback this year with the passing of the Prevention of Terrorism Act, under the guise of national security.

Mr. President, the government of Malaysia made pledges not just before its citizens but also before the international community. In Malaysia’s second UPR in 2013, the government “accepted in principle” recommendations to repeal the Sedition Act and sustain reforms in the human rights field. It also fully accepted recommendations to continue efforts in promoting and protecting human rights.

We urge that the Human Rights Council strengthen the follow-up process to the UPR to ensure that governments account for their pledges. More weight must be given to the mid-term review process as an opportunity to take stock of progress and challenges on the ground.

We further urge that the Malaysian government and the international community recognise the Internet as a legitimate space and platform for the promotion, protection, and exercise of the rights to freedom of expression, association, and assembly. International standards protecting fundamental rights and freedoms, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, must be seen as fully applicable to expressions online.

Finally, we call on the government of Malaysia to extend invitations to the Special Rapporteurs on the right to freedom of opinion and expression, and on the right to peaceful assembly and association.
Thank you.

Written Statement for the 29th Human Rights Council: Online Spaces for Freedom of Expression Under Threat in Malaysia

Online Spaces for Freedom of Expression Under Threat in Malaysia

25 May 2015

 

The Association for Progressive Communications (APC and Persatuan Kesedaran Komuniti Selangor (EMPOWER) are concerned over threats to the exercise of freedom of expression online in Malaysia.

EMPOWER has conducted a legal and media research covering the period of 1 January 2014 to 31 March 2015 under the APC IMPACT (India, Malaysia, Pakistan Advocacy for Change through Technology) project. While freedom of expression online is guaranteed under Article 10 of the Federal Constitution and Article 3(3) of the Communications and Multimedia Act 1998, these guarantees exist within an ecosystem of laws and State-sanctioned actions by non-State actors which restrict this right in practice.

From the research, we can discern a general trend towards more restrictions and monitoring of expression online. The 2015 amendments to the Sedition Act 1948 were the cause of great concern among human rights defenders and civil society. The amendments include a provision that empowers the Session Court to prohibit a person from accessing any “electronic device”, with no definition as to what would constitute an “electronic device.” As a penalty, it is disproportionate to the alleged crime and opens the door to arbitrary interpretations.

As well, causing seditious material to be published and reproducing or propagating seditious material are now an offence. Under this amendment, sharing content over social networking sites such as Twitter and Facebook may be considered to be propagation. These broad and vague terms may also make it an offence for journalists, activists, and ordinary people to quote allegedly “seditious words” when commenting on or criticising them in any publication.

In October 2014, the Special Rapporteurs on the promotion and protection of the right to freedom of opinion and expression; on the rights to freedom of peaceful assembly and of association; on the situation of human rights defenders; and on the independence of judges and lawyers expressed serious concern about the prosecutions under the Sedition Act of 1948 of individuals, including Members of the Parliament, politicians, political activists, human rights defenders, academics, lawyers, students and journalists, for what seem to be a legitimate exercise of the right to freedom of opinion and expression, as set forth in article 19 of the Universal Declaration of Human Rights (UDHR). They also noted that The Sedition Act further has a detrimental impact on the exercise of the right to freedom of association, as set forth in article 20 of the UDHR.[1]

The Special Rapporteurs also noted that the Government “accepted in principle” recommendations during its Universal Periodic Review in 2013 to repeal the Sedition Act and requested the Government to indicate what measures have been taken in relation to this commitment.

The Government of Malaysia replied that the Sedition Act is needed to strengthen national harmony and enhance peace and securuity. However we note that the law is being used to arrest individuals for the legitimate exercise of their right to freedom of expression in cases that do not present an immiment threat of incitement to violence. [2]

In April 2015, UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein urged the Government of Malaysia to withdraw its proposed amendments to the 1948 Sedition Act, warning that the new provisions would seriously undermine the freedom of expression and opinion in the country, in breach of Malaysia’s Federal Constitution and its international human rights obligations.[3] The High Commissioner’s statemetn noted that the UN Human Rights Office has long urged Malaysia to either repeal the 1948 Sedition Act or to bring it in line with international human rights standards, and the Government itself had committed to repealing the Act during its 2013 UPR. High Commissioner Zeid also urged the Government to review the cases of all those who have been charged under the Sedition Act.

The Sedition Act is only one of the many laws used to restrict freedom of expression online. During the research period covered by the APC IMPACT project, internet users have been reported, investigated, arrested or prosecuted under the Penal Code (including provisions on offences related to religion and criminal defamation), the Official Secrets Act 1972, the Syariah Criminal Offences (Federal Territories) Act 1997, other provisions under the Communications and Multimedia Act, and even the Educational Institutions (Discipline) Act 1976.

In many of these laws, the terms used to define the offence are very broad and vaguely-worded, for example the use of “seditious tendency” and “ill-will.” Limitations on freedom of expression should be based on the intention and likelihood of inciting violence, as well as having the condition of a direct and immediate connection between the expression and the likelihood or occurrence of such violence. Instead, due to the broadly-defined offences, persons investigated or charged under the Sedition Act during the research period included a 17-year-old student for liking a Facebook Page and a Muslim preacher for allegedly insulting the Sultan of Selangor.

On the other hand clear and immediate threats to women and journalists, such as the rape threats made against a female journalist over her video commentary on hudud, do not seem to be a priority.

In an environment of increasing intolerance towards differences in opinion, the government of Malaysia has a responsibility to protect the right to freedom of expression as an integral component of democratic processes and to promote civil dialogue. Clamping down on expression will simply serve to cut off the ability of the people to work towards common ground and worsen existing tensions.

[1]     https://spdb.ohchr.org/hrdb/28th/public_-_UA_Malaysia_01.10.14_%286.2014%29.pdf

[2]     https://spdb.ohchr.org/hrdb/28th/Malaysia_14.10.14_%286.2014%29.pdf

[3]     http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15810&LangID=E

Sedition Act Amendments a Betrayal of Democratic Process

Sedition Act Amendments a Betrayal of Democratic Process
10 April 2015

Persatuan Kesedaran Komuniti Selangor (EMPOWER) is outraged and disappointed by the manner with which amendments to the Sedition Act 1948 and the Prevention of Terrorism Act were rushed through Parliament. Major pieces of legislation with far-reaching consequences should go through extensive consultation with all political parties, a broad spectrum of civil society organisations, and the general public.

We are appalled, in particular, by the substance of the amendments to the Sedition Act. Provisions with regards to electronic media and devices are unacceptably broad and vague. The amendments include a provision that empowers the Session Court to prohibit a person from accessing any “electronic device”, with no definition as to what would constitute an “electronic device.” As a penalty it is disproportionate to the alleged crime and opens the door to ridiculous extremes in interpretation, making it near-impossible for a person to function in modern society. It amounts to a total denial of their right to not only freedom of expression, but to full participation in public life.

We are gravely concerned, as well, that causing seditious material to be published and reproducing or propagating seditious material are now an offence. One assumes that a retweet and a Facebook share would be considered as propagation. Would these broad and vague terms also make it an offence for journalists, activists, and ordinary people to quote allegedly “seditious words” when commenting on or criticising them in any publication? Should we now resort to pantomime and hope that the audience understand the point we are trying to convey?

EMPOWER notes that bringing “into hatred or contempt or to excite disaffection” against any government and the administration of justice has been removed from the section on seditious tendency. However, intent is still irrelevant to an offence under the Sedition Act. In fact, the threshold has been lowered. An offence merely has to fulfil one of these conditions: promoting “ill will, hostility or hatred” on the grounds of religion and race. Raising discontent or disaffection against any Ruler and questioning Bumiputra privileges remain an offence.

It is apparent from reading the text of the Bill that much of the amendments, with the explicit inclusion of electronic media, are aimed at imposing greater control over the usage of the Internet and social media. EMPOWER is currently conducting a research into Internet rights in Malaysia. In the period of January 2014 to March 2015, there were at least 18 cases reported in the media where individuals were investigated, charged, or convicted under the Sedition Act for material posted online.

In any legitimate democracy, these pieces of legislation would go through months of consultation and debate, not rushed through Parliament in a day and passed at 2:30am. The sheer disregard for the views of voters on the substance of the amendments is doubly apparent when, in the middle of a debate on the Sedition Act amendments, the MP for Baling took it upon himself to question the possibility that menstruating non-Muslim women Opposition MPs may “bocor” (“leak”) while visiting a mosque. What does a biological fact have to do with sedition? We are aghast that once again, women’s bodies are used to score cheap political points.

When Prime Minister Datuk Seri Najib Tun Razak announced three years ago that the Sedition Act would be repealed, there was wary hope among civil society organisations, including EMPOWER. It appears, unfortunately, that our caution was warranted. Years of repressive laws aimed at curbing freedom of expression have only contributed to the rise of militancy and the privileging of politically-expedient hate speech. It is unlikely that the “new” Sedition Act and the Prevention of Terrorism Act will do any better at keeping us safe.

Janarthani Arumugam
President, EMPOWER