WHILE the implementation and enforcement of the Sedition Act 1948 is too broad and selective, the newly proposed anti-hate speech law by the Minister in the Prime Minister’s Department Datuk Dr Mujahid Yusof Rawa must take all measures to replace the outdated colonial Act, protect free speech and protect marginalised individuals or groups from hate speech. Here are some general recommendations for a robust and fair anti-hate speech law:
The definition, prosecuting power and punishment
Anti-hate speech law must not again be abused for any corrupt, populist agenda of the government or for majoritarianism to limit free speech. As stated in a Report of the Special Rapporteur on minority issues (to the Human Rights Council), that can be prevented through a clear definition of “hate speech”, which should constitute “incitement to discrimination, hostility and violence made online or offline on the grounds of not only race and religion, but also ethnicity, sexual orientation or disability”. Similar grounds of hate speech offence are in place in the United Kingdom and the Netherlands.
The objective of the law is to promote peace and co-existence. Setting aside ‘theological or social differences’, it is important to note that religious and sexual minorities in Malaysia are often targeted by fundamentalist and extremist groups or vigilantes.
Their derogatory speeches build public attitudes and radicalise some of them to convert the inner hate into real life discrimination and to a certain extent, violence (hate crime) that include employment discrimination, bullying, assault and murder.
Therefore, there should be a legal regime on anti-hate speech to educate the society about respect, equal treatment and human dignity with one and another.
Furthermore, the executive should not have any power or discretion to determine the commencement of the criminal charge. Instead, the prosecuting power should be solely on the public prosecutor’s office, provided that it has been separated from the Attorney General’s Chambers and the court shall be given a broad power to interpret hate speech based on the aforementioned grounds, with other strict considerations such as foreseeable harm and its nexus with the hate speech.
Besides, the proportionality of the punishment must be seriously taken into account to include maximum numbers of sentences to avoid disproportionate sentencing.
Lessons learnt from other countries
Malaysia should learn from the implementation of anti-hate speech law in countries like the Netherlands and Germany. Geert Wilders, a well-known, far-right anti-Muslim Dutch politician was guilty of inciting xenophobic remarks against the Moroccan ethnic immigrants under the Dutch legal code. His hate speech in his capacity as a politician resulted in increasingly alienated immigrant families and escalated verbal and physical attacks on them. On the other hand, the issue of security is also a major concern. The court, however, exercised its power to not impose a fine of euro €5,000 as requested by the government, saying that the conviction itself was punishment enough.
Meanwhile in Germany, one of the countries with the strictest anti-hate speech law, received criticism for its new law (Netzwerkdurchsetzungsgesetz or NetzDG) to curb rising online defamation, fake news and hate speech as defined in the German Criminal Code, particularly inspired by Neo-Nazi and anti-refugee sentiments.
For example, Anas Modamani, a Syrian refugee’s viral selfie with Angela Merkel was maliciously linked to Brussel’s bombing and Berlin’s Christmas attack and has put his life in anguish and security risk.
Nevertheless, the new law is arguably flawed because it places the responsibility on the incompetent third party to determine when a user violates the law, otherwise the companies could face fines of up to €50mil.
In addition, the law fails to provide either judicial oversight or a judicial remedy should a cautious corporate decision violate a person’s right to free speech.
In short, a robust anti-hate speech law in Malaysia is in dire need to protect the marginalised groups or individuals from hate speech but its legal construction and implementation should be exercised at the greatest caution possible, taking into consideration the flaws from these developed countries.
Anti-hate speech law is not anti-blasphemy law
Free speech allows for a critical thinking person and being able to express dissenting opinions on all matters including religion and its elites. It is not an offence if an opinion offends the majority of society, as long as it does not fall within the aforementioned grounds to incite discrimination, hostility and violence against any individual or group. Otherwise it is another form of law to protect the corrupt practices of the religious elites who are fallible.
In Bahrain, Sheikh Maytham al-Salman was charged consecutively in 2015 and 2016 for “changing public opinion” and “challenging the government”. In Indonesia, Pak Ahok, former Jakarta Christian mayor candidate, was convicted in 2017 for quoting Islamic text to justify a vote for a non-Muslim leader. In Mauritania, Mohamed Ould Mkheitir, a blogger, was charged in 2014, punishable by death, for criticising the government in condoning slavery in the name of Islam.
This kind of free speech should not be hampered by anti-hate speech law. Dissenting or unpopular opinions are meant to increase public intellectualism for them to make an informed choice and to deal with different opinions openly with respect, not violence, so that the informed society can have a meaningful participation in policy and decision-making.
Visiting researcher, Berkley Center for Religion, Peace, and World Affairs 2018
Did you find this article insightful?