Take freedom of speech seriously


To protect or not to protect: Even in the controversial Icerd protest, should the law be used to crack down on people’s free speech?

To protect or not to protect: Even in the controversial Icerd protest, should the law be used to crack down on people’s free speech?

IN July 2018, Minister in the Prime Minister’s Department for Religious Affairs Dr Mujahid Yusof Rawa announced in Parliament that the government was planning to table the Religious and Racial Hatred Bill to “deal with incidences when Islam is insulted but also when non-Muslim faiths are insulted to ensure that our multi-religious and multi-racial society is protected from being insulted and belittled.”

The genesis of the Bill stems from the National Unity Consultative Council (NUCC), which was established by former Prime Minister Najib Razak in 2013. In 2015, the NUCC presented its report to Najib but nothing more was heard about it until now, after the Pakatan Harapan government won the 14th General Election.

The punishments proposed in the Bill are reportedly severe, including up to RM100,000 fine or seven years’ imprisonment for incitement of religious or racial hatred. These would essentially be mere “speech offences” against an abstraction or a class of persons but with no real victims, unlike common crimes like robbery or murder.

Freedom of speech and expression should be taken seriously in Malaysia. It is a constitutional right guaranteed under Article 10 of the Federal Constitution, with the caveat that this right can be restricted – in a proportionate manner and in order to preserve security, public order or morality, which is generally consistent with international human rights law.

The right to speak on issues of race and religion should be viewed as part and parcel of the right to the freedom of speech and expression. This is incredibly important in charting the course for Malaysia Baru in the years to come as after all, Malaysia has long been divided due to poisonous politics that exploited cracks and insecurities of racial and religious relations in the country.

Free discourse is the cornerstone of a healthy democracy, and it is easy to see the authorities using the proposed Religious and Racial Hatred law to control discussions on race and religion lest they descend into expressions of dislike, insult, abuse and ridicule of the other’s race or religion.

Even in the wake of the new government’s transition to power, controversies such as the recent riot surrounding the Sri Maha Mariamman temple in Subang Jaya, Selangor, as well as whether the government should ratify the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd) have become flashpoints on social media. One can only wonder how the law would be utilised to crack down on such speech, and whom would it crack down upon.

Perhaps more importantly, such incidents only serve to drive home the reality that the government cannot be the unquestioned arbiter of what is and is not acceptable as protected free speech.

Allowing the executive branch to dictate what is permissible for public discussion or to criminalise “insults”, invites an Orwellian future of self-censorship and enforced political correctness. Sensitive topics may become off-limits or only touched upon politely in service to a quasi-harmonious state between races and religions, without allowing us as a society the opportunity to address the festering wounds beneath.

The proposed Religious and Racial Hatred Bill will encompass social media, adding on to the arbitrary online governance, particularly Section 233 of the Communications and Multimedia Act 1998, which was used haphazardly and for political purposes during Najib’s administration.

The idea that the authorities can somehow control the tide of “offensive” racial and religious comments online through the new law is concerning. They must come to terms with the power and reach of the social media age – that every person with access to the Internet or a smartphone can be connected across Malaysia and the world with innumerable other users, for better or worse.

It is a new freedom, a freedom that previous generations never had, and it is inevitable that the boundaries of this new frontier are constantly being pushed and tested further. With this newfound freedom, discussions and criticisms about race and religion, for better or worse, have become widespread online, and it is understandable that some may be uncomfortable about open discussions of such sensitive subjects. Others may feel defensive of their religious or racial identity, and upset that others are seemingly dismissive of what is an integral part of their person and identity.

The answer to these concerns, however, is not to enact oppressive laws to arbitrarily restrict speech and expression. We have seen in the past, most infamously through the Sedition Act 1948, that efforts to restrict speech can quickly become a tool to muzzle critics and repress minorities. Bluntly put, you cannot legislate away your fundamental problems, and you certainly cannot control the thoughts and minds of others by taking away their right to voice out.

International human rights law protects people, not abstractions such as nationhood or national unity, races or ethnicities, religions or belief systems. This is not to say there is no limit to freedom of speech and expression.

The government does have an obligation under domestic and international human rights law to protect freedom of speech and expression, and this right can be justifiably limited in order to prohibit the incitement of hatred, but only if such hatred is likely to incite violence or crime. Restrictions designed to prevent “insults” are not permissible.

For the most parts, sensitive discussions about matters of race and religion belong in an open forum where anybody can comment without fear of retribution, and where hopefully the majority will be able to recognise inciteful or insidious comments and reject them. As time progresses, the organic forging of a consensus on the issue will mark what society considers the acceptable boundary of discussion, and anything beyond that will rightfully be considered wrong, even dangerous or criminal. It is not for the government to impose itself in the process as some sort of moderator with penal powers, hoping to mould the conversation as it sees fit.

If one believes that a comment or post has gone too far, they are well within their rights to report that person to the social media platform or regulator, write a retort if they so wish, block, mute, unfollow or ignore these posts, and life will still go on. It is imperative that we recognise that our social media experience is one that we craft for ourselves – and it is in our power to change it so that it suits us better.

While the Minister may be guided by noble intentions, the Religious and Racial Hatred law will only create more problems than it purports to solve. There are other ways to go about this.

Notably, Sections 504 and 505 of the Penal Code already criminalise making an “insult with intent to provoke a breach of peace” and “making statements conducing to public mischief” respectively, making the Religious and Racial Hatred law redundant. It would be easier to update and amend these provisions in the Penal Code to address what are essentially public order offences rather than turning them to become racial and religious “sensitivity” offences.

I have argued against this Bill not because I support hateful speech, but because it poses undue threats to free speech and expression. Without independent institutions to enforce our laws and protect our fundamental rights, this Bill would threaten the capacity of each individual, particularly minorities, to express their own views and practice their own faiths.

The strongest weapon against hateful speech is not repression, but more speech so that the universal voices of our common humanity, mutual respect, tolerance and inclusivity can challenge that of racists and bigots.

Eric Paulsen is the legal director of Fortify Rights.

Freedom of speech laws