Open letter to Prime Minister Najib Abdul Razak on attorney Eric Paulsen and Professor Azmi Sharom

Dear Prime Minister

The American Bar Association (ABA) is an independent, non-governmental organisation, representing approximately 400,000 members of the legal profession worldwide. It is committed to protecting the rule of law in the United States and abroad.

I write to express the ABA’s concern regarding the pending prosecutions of attorney Eric Paulsen and Professor Azmi Sharom , which are part of an apparent pattern of harassment against lawyers and human rights activists in Malaysia, with at least four other lawyers charged under Article 4 of the Sedition Act 1948 since 2014.

Paulsen is a human rights attorney and the executive director of Lawyers for Liberty.  He has been charged under Section 4(1)(c) of Malaysia’s Sedition Act 1948 for sending a message over his Twitter account that criticised the Malaysian Department of Islamic Development (Jakim).  

In his message, Paulsen alleged that Jakim was promoting extremist interpretations of Islam in its Friday sermons, despite the government of Malaysia’s public commitment to combat extremist ideology in Malaysia. The facts of his arrest and detention have been widely reported. The ABA is concerned that he was charged for expressing his opinion on a matter of public interest and advocating for accountability of government agencies.

On Jan 12, 2015, Paulsen was arrested by more than a dozen security officers in a night-time raid , after having already agreed to voluntarily speak with the police later in the week. During the arrest , the police confiscated his cell phone and searched his offices for his laptop.

About 24 hours after his arrest, Paulsen was able to confer with his lawyer and was brought before a magistrate, who ordered that he should be remanded into custody for an additional two days before release. He was released on bail on Jan 14, 2015, and officially charged under Section 4(1)(c) of the Sedition Act on Feb 5, 2015.

The court has not yet set a date for trial.  If convicted of this charge, Paulsen could face a fine of RM5,000 (approximately US$1,300) or imprisonment for up to three years, or both.

Azmi Sharom is a law lecturer at Universiti Malaya. He expressed his concern over the handling of the ‘Perak Crisis of 2009’ in an article in a Malaysian newspaper and cautioned the government from taking similar action again. 

He was officially charged with violating Article 4(1)(b) and 4(1)(c) of the Sedition Act on Feb 9, 2014.  Azmi Sharom has challenged the Sedition Act 1948 in the High Court on the grounds that the law was not validly enacted by parliament, and therefore violates the Malaysian constitution.  Azmi Sharom’s case has been postponed until after the High Court issues a decision in the constitutional challenge.

Obliged to protect fundamental freedoms

As a member of the United Nations, the Commonwealth secretariat, and the Association of South-East Asian Nations (Asean), Malaysia is obliged to respect and protect fundamental freedoms, including the right to freedom of expression and opinion. Freedom of expression is a fundamental human right, guaranteed under both Article 10 of the constitution of Malaysia and under Article 19 of the Universal Declaration of Human Rights.

The ABA is concerned that the pending sedition charges against Paulsen and Azmi Sharom violate their fundamental right to freedom of expression and opinion. Freedom of expression, in particular on matters of public interest, is not only a basic individual right but necessary to a free and just society.

The UN Human Rights Committee has succinctly explained: “Freedom of expression is a necessary condition for the realisation of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.”

Generally, international law prohibits restrictions on freedom of expression unless they are prescribed by law, directed at a legitimate aim, and necessary in a democratic society. To be “necessary” in a democratic society, restrictions must be proportionate to their purported objective. Criminal penalties are the most severe restriction imposed by law and therefore must be reserved for only exceptional instances, such as incitement to violence.  

Paulsen was deprived of his liberty for having expressed his concern over a government agency’s actions, which he viewed as inconsistent with the government’s stated goal of promoting religious tolerance. Azmi Sharom was expressing his views as a legal scholar and lecturer on matters of the constitutionality of government action.

Neither attorney made any reference to violence or to the overthrow of the government in their messages. Rather, their comments appear to be aimed at prompting debate about matters of public interest.

In addition, the United Nations has promulgated a Declaration on the rights of human rights defenders (“the Declaration”) that specifically states that everyone has the right, individually and in association with others, to “study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.”

The Declaration urges States to promote and protect the right and responsibility of lawyers, human rights defenders and other members of civil society “to submit to governmental bodies, agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and drawing attention to any aspect of their work that may hinder or impede the promotion, protection and realisation of human rights and freedoms.”

Finally, the ABA notes that the United Nations Basic Principles on the Role of Lawyers provides that lawyers, like other citizens, “are entitled to freedom expression, belief, association and assembly” and that they “have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights.”

Paulsen and Azmi Sharom have the right under international law to publish their opinions concerning a government agency’s efficacy and the legality of government action.

A tool to restrict freedom

Finally, the ABA notes that Malaysia’s Sedition Act 1948 is being challenged in the High Court later this year. This law has been identified by numerous international human rights experts and other States as a tool to restrict freedom of expression in a manner inconsistent with international standards and norms.

In Malaysia’s most recent United Nations Universal Periodic Review, many States recommended that Malaysia review and amend its Sedition Act 1948 to enable its citizens to fully exercise their rights to freedom of opinion and expression.

Sedition laws are almost universally obsolete in common law jurisdictions. In countries that still have a sedition law, national courts have found that it must be limited to cases where there is evidence of an intention to incite violent overthrow of a lawfully constituted authority, coupled with actions and a capacity likely to achieve the prohibited result.

The ABA respectfully urges the government of Malaysia to take steps to ensure promotion and protection of human rights and the rule of law, in compliance with its international commitments and in accordance with the constitution of Malaysia. No one should be charged with sedition for expressing their views on matters of public concern.

WILLIAM C HUBBARD is president of the American Bar Association (ABA).