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Reform laws restricting freedom of expression

Article 19  |  Published:  |  Modified:

COMMENT | Following the decision by the people of Malaysia in voting for change in general elections held on May 9, we the undersigned civil society organisations call on the incoming government to honour the mandate it has been given by implementing a comprehensive programme of reform and strengthening human rights protections in Malaysia.

Over the decades of rule by the outgoing regime, authorities have frequently violated the right to freedom of opinion, expression and information including by imposing legal restrictions on the exercise of rights.

The recent elections signal the Malaysian people’s rejection of the continued suppression of free speech in the country and underscore the need for the new government to take action to fortify fundamental freedoms.

Institutional and legal reforms are necessary to ensure that people of Malaysia are better able to keep elected representatives and the three branches of power of government accountable and transparent through the exercise of their freedom of opinion and expression.

Following the election victory of the Pakatan Harapan coalition, we welcome the new government’s quick formation of the Institutional Reforms Committee, which is tasked with making recommendations to the new government on priorities for legislative and structural reform.

However, recent mixed messages from the ruling coalition on the repeal of the Anti-Fake News Act, passed by the outgoing government shortly before the election, gives cause for concern.

We are of the view that the more effective solution to any disinformation and misinformation is the enactment of a Freedom of Information Act at the federal level.

We urge the new government to prioritise reform of the country’s legislative framework in order to guarantee the rights to freedom of expression and information for all.

However, legislative reform must go hand-in-hand with the restructuring of national institutions to ensure accountability, independence, and respect for human rights. Moreover, the new government must meaningfully engage civil society in a programme of reform that is inclusive and participatory.

For these reasons, we the undersigned civil society organisations suggest to the Institutional Reforms Committee and the Harapan government the following roadmap for reforms relating to the rights to freedom of expression and access to information.

Meaningful consultations

We urge the Malaysian government to:

As soon as possible, consult with CSOs on the shortcomings of Malaysia’s legal framework as they relate to freedom of expression and access to information.

We call upon the government to ensure that any legislative and institutional reform processes are transparent and provide for the full and effective participation of all concerned stakeholders, including civil society.

The government must carry out meaningful consultations with civil society, including human rights defenders, journalists, artists, bloggers and other advocates for freedom of expression and access to information. The inclusion of civil society perspectives in discussions about reforms
will help ensure that new laws and policies reflect the needs of Malaysian society and are in line with human rights principles and standards.

Promptly end blocking of news sites. We call upon the government to lift barriers on access to websites, including news sites, arbitrarily imposed by the Malaysian Communications and Multimedia Commission

The MCMC has used broad powers to block websites reporting on the 1MDB corruption scandal, including the UK-based Sarawak Report and regional news outlet The Asia Sentinel. We welcome the decision of the MCMC to unblock Sarawak Report and The Medium on May 17.

The government should ensure that Malaysians are able to, in line with international standards, freely access information and express themselves online without restrictions. Any blocking orders must fully comply with
international human rights standards and include procedural safeguards.

Immediately lift all arbitrary travel bans. We welcome the Immigration Department’s May 14 decision to lift the travel ban against cartoonist and activist Zunar, who faces charges of sedition for comments made on Twitter.

The new government should immediately lift any remaining travel bans imposed on human rights defenders, elected representatives or others because of their exercise of the right to freedom of expression or as part of a crackdown on dissent, and end the use of such bans to stifle criticism.

During the upcoming parliamentary session, reform or repeal laws violating freedom of expression that has been used to restrict freedom of expression. The following laws, which have been frequently used to stifle criticism and dissent, must be prioritised for reform or repeal during the first parliamentary session under the new government:

Culture of secrecy

a. The Sedition Act 1948, which authorities have used to prosecute politicians, human rights defenders, cartoonists and others for expressing opinions critical of the government, royalty and of religions.

b. The Anti-Fake News Act 2018, which defines “fake news” broadly, imposes criminal penalties for those involved in its dissemination and gives government authorities broad censorship powers.

c. The Official Secrets Act 1972, a broadly-worded law backed by criminal
sanctions, that entrenches a culture of secrecy in all matters relating to public administration and gives state authorities prerogative to withhold an expansive range of information from public view without judicial scrutiny.

d. The Peaceful Assembly Act (PAA) 2012, which has frequently been used to investigate and intimidate organisers of protests, often for their failure to provide authorities notice 10 days prior to an assembly.

Section 233 of Communication and Multimedia Act 1998, which provides
criminal penalties for online communications that are “obscene, indecent, false, menacing offensive in nature with intent to annoy, abuse, threaten or harass a person” and has become a chief law used for imprisoning those who criticise authority and power for their exercise of the right to freedom of expression.

e. The Printing Presses and Publications Act 1984, which grants the Home
Minister “absolute discretion” to ban or censor “undesirable publications” based on vaguely worded criteria and has been used to suppress political opposition, to ban books that may be critical of the government or considered to be blasphemous to Islam, and to curtail freedom of expression in general.

f. The Film Censorship Act 2002, the Act criminalises the circulation, distribution, display, production, sale or hire of any film not approved by the Film Censorship Board of Malaysia and extends this prohibition to the possession of such material.

The reform or repeal of these laws has been repeatedly raised by Malaysian lawmakers, human rights groups and also UN Special Rapporteurs as essential to safeguarding freedom of expression in the country.

Ratify key conventions

Before Malaysia’s UPR, sign and ratify key international human rights
instruments Malaysia has yet to ratify many key human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR).

Although the previous government has accepted recommendations to consider ratification of the ICCPR during its previous Universal Periodic Review (UPR) at the UN Human Rights Council, it has made no progress toward this goal and has instead advanced laws and policies which further undermine the rights enshrined in the treaty.

Therefore, we call upon the government to fulfil its commitments by signing and ratifying treaties including the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Convention on the Elimination of Racial Discrimination (ICERD) prior to its UPR at the Human Rights Council in November 2018.

In order to demonstrate its commitment to creating an environment which
safeguards the human rights of all, the government should also issue a standing invitation to all special procedures of the UN Human Rights Council and prioritise visits for the Special Rapporteurs on freedom of opinion and expression, on freedom of peaceful assembly and of association, on human rights defenders, and on freedom of religion or belief.

Within this year, introduce Parliamentary Select Committee. The new government has promised to govern by the rule of law and ensure the
separation of powers and to this end must strengthen parliamentary processes and institutions.

We, therefore, call upon Parliament to establish a Parliamentary Select
Committee to ensure effective checks and balances and to safeguard the public interest against the abuse of power.

We encourage specific Parliamentary Select Committee to be provided with a mandate that includes the review of problematic laws and provisions that have been used to curtail freedom of expression and information, including Penal Code sections 124(b), 186, and 505(b); the Security Offences (Special Measures) Act 2012 (Sosma), Bernama Act, The Whistleblower Protection Act 2010, and National Security Council Act 2016 (NSC).

At the same time, we hope the Select Committee will consider
recommending the enactment of a Right to Public Information Law as a way of guaranteeing openness, transparency and good governance. As part of reform efforts, take steps to strengthen and empower Suhakam.

While carrying out reform initiatives, we call upon the government to consider recommendations made by the National Human Rights Commission of Malaysia (Suhakam) with regards to adherence to Article 19 of the Universal Declaration of Human Rights.

We also urge the new government to ensure that Suhakam’s annual
report is debated in Parliament each year. The new government must also take steps to ensure that Suhakam is fully independent and has the authority and resources it needs to effectively investigate and address violations of the right to freedom of opinion and expression.

Signatories to the above are:
1. Article 19
2. Agora Society
3. Aliran Kesedaran Negara (Aliran)
4. Art For Grabs
5. Centre for Independent Journalism (CIJ), Malaysia
6. Civicus: World Alliance for Citizen Participation
7. Engage
8. Freedom Film Network
9. Gerak
10. Justice for Sisters
11. Malaysian Atheists and Secular Humanists (Mash)
12. Persatuan Kesedaran Komuniti Selangor (Empower)
13. Persatuan Sahabat Wanita Selangor
14. Pusat Komas
15. Sahabat Rakyat 人民之友
16. Seksualiti Merdeka
17. Sinar Project
18. Sisters In Islam (SIS)
19. Suara Rakyat Malaysia (Suaram)
20. Writer Alliance for Media Independence (Wami)

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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