I am pleased to share a blog post written by Nina Benjamin and Courtney Thompsonwho are currently law students at the University of California, Irvine School of Law. They support the UN Special Rapporteur’s mandate through their work with the International Justice Clinic (IJC).

Zunar, a Malaysian political cartoonist, (second from left) with Amos Toh, IJC fellow, Nina Benjamin and Courtney Thompson 

KUALA LUMPUR, MALAYSIA – As part of its global celebration of International Day for Universal Access to Information (IDUAI), UNESCO hosted a three-day event in Kuala Lumpur, Malaysia. Mindful of the opportunities for change, UNESCO and its collaborators organized events that address the aims and challenges of protecting freedom of expression and information in Malaysia. This event comes at a critical political moment. After more than sixty years under the same political coalition, Malaysians voted in a new prime minister and new political party, Pakatan Harapan (PH) in May 2018. PH has promised legislative reforms to strengthen human rights and democratic accountability in the country.

From our conversations with members of civil society, there seems to be genuine optimism about the capacity for change under the new administration. Indeed, there are promising signals that PH may lift harsh restrictions on freedom of expression that were put in place by the previous government. Charges of sedition brought against the political cartoonist, Zunar and prominent members of civil society have been dropped since the new administration came into power. PM Mahathir Mohamad has also made the repeal of the Sedition Act one of PH’s campaign promises.

The government’s willingness to host UNESCO is also in and of itself a signal of openness. Several events were held at government institutions. The IPDC talks, hosted by the Radio Televisyen Malaysia (RTM) headquarters, will be the country’s first television program exclusively focused on the importance of access to information. A round table discussion with parliamentarians at the Malaysian Parliament also generated vigorous debate about the role of international standards on freedom of expression in guiding the development of domestic law, particularly in light of local political conditions and the country’s simmering racial and religious tensions.

However, while there is general excitement for PH, this optimism is tempered with caution. During the IPDC talks, Dr. Azmi Sharom, a Malaysian law professor and human rights expert, observed that the protection of freedom of expression “cannot depend on politicians.” Instead:

“It  has to be something which is protected by law. We cannot depend on the whims of politicians because they might change at any time.” (emphasis added)

His warning should be heeded. While many are optimistic about PH, recent developments indicate the new government’s willingness to maintain existing restrictions on freedom of expression and even introduce new ones.

The regulation of hate speech remains one of the most daunting challenges for the new government. Longstanding tensions between the country’s racial and religious groups are unlikely to resolve overnight, and previous governments have exaggerated the possibility of ethno-religious violence to justify the curtailment of civil liberties. Some activists and civil society members are worried that PH will do the same. While the new government has vowed to repeal the Sedition Act, it appears be considering a new slate of restrictions. In particular, a secret proposal to enact a National Harmony Act is rumored to contain provisions that criminalize inflammatory remarks about race and religion. Many activists believe that this would significantly stifle public expression by creating unprecedented limitations on discussions of race and religion.

PH’s shifting position on the Anti-Fake News Act is also cause for concern. During its campaign, PH vowed to repeal the act, which broadly criminalized “news, information, data and reports which is or are wholly or partly false.” Upon taking power, the new government also made assurances to the United Nations Special Rapporteur on freedom of expression that repeal was underway. However, in a disturbing about-face, the Prime Minister announced recently that the Anti-Fake News act would not be repealed but amended so that it included a more specific definition of “fake news”. In response to the shift in policy, PM Mahathir said, “Even though we support freedom of press and freedom of speech, there are limits.” The repeal of the act is currently stalled in the Senate.

It is also unclear whether restrictions on access to information will be lifted. Enacted in 1972, the Official Secrets Act (OSA) provides the government broad discretion to categorize any document or report as an “official secret” in the interests of unspecified national security considerations. Without meaningful reform of the OSA, these broad powers of classification are likely to neutralize any measure to increase access to government information.

Amid these concerns, civil society, the legal profession and a wide range of academics are taking proactive steps to hold the government to its promise of democracy and the protection of fundamental freedoms. As part of the UNESCO program, we participated in a day-long meeting with members of the Malaysian Bar Council to share knowledge and analysis about international standards and legislative best practices that can serve as guidance for progressive legal reform in the country.

Our trip to Malaysia showed us that a universal framework for human rights continues to be the ideal way to protect fundamental freedoms and the application of this framework is a multi-stakeholder process that involves all aspects of society. Both the international human rights community as well as local civil society actors are committed to ensuring that the changing political climate will yield positive results for the exercise of freedom of expression.

For more information about the IPDC talks, a full recording of the talks and the subsequent panel discussion is available here.



Reflections on freedom of expression in Malaysia