No need for hate speech law


I READ with concern recently about calls to create a specific law to address hate speech.

Legal voices such as Dr Muhammad Mohan and Eric Paulsen have already raised doubts over this new legislation. As Paulsen has stated, the term “hate speech” is difficult to define. By its very conception, there is no clear understanding of what it denotes.

Generally, laws against crimes that are non-physical in nature have a tendency to veer into ambiguous territory. Laws that relate to speech, or curbing and/or addressing issues about speech are especially true in this regard. There is no way to clearly define a concept like hate speech in a legal sense.

An attempt to do so would only subject us to laws that ultimately put us all on the precipice of confusion whenever there is a pull to say, or for that matter post, something, and perhaps even jeopardise our exercise of the right to free speech.

This is because at the end of the day, “hate speech” is a construct, not a tangible action. It is very much a “he says, she says” dynamic, my truth will be different from yours, what I consider hate speech, you might consider an exercise of your right under the Federal Constitution Article 10 (freedom of speech, assembly and association) and vice versa.

A good and more recent example of ambiguities that may arise in defining words and/or phrases that are more like concepts would be the case of PP v Karpal Singh a/l Ram Singh [2012] 4 MLJ 443, where there was a protracted consideration of the word “sedition”/“seditious tendency” and what would amount to an offence under the then Section 3 of the Sedition Act 1948 (which itself was amended in 2015 and has been in talks to be abolished for eons now).

I think the consideration for a law to curb hate speech is very much in the same vein as the proposal to have a law against fake news that popped up not too long ago. It’s almost as if we are living the reality of Groundhog Day or a deja vu for the masses. It appears that we are simply re-boiling the same pot of soup.

The primary concern (I would think) is that a new “specific law” to curb hate speech is merely a re-imagining of existing laws in Malaysia that have the same effect as this proposed new law.

As it stands (and this is only through my own lens of the law and is, by no means, an exhaustive list), there are the following legislations that one would think is plenty in addressing hate speech (and are also ambiguous in terms of terminology and have themselves been called into question for multiple reasons):

Penal Code: Section 504 – Intentional insult with intent to provoke a breach of the peace; includes provocation that will cause a person to break public peace

Section 505 (b) – Statements conducing to public mischief; includes intent to cause/likely to cause fear or alarm to the public whereby any person may be induced to commit an offence against the State or against public tranquillity.

Communications and Multimedia Act 1988: Section 233(1) – Includes (among other things) a person who uses network facilities or network services or applications knowingly to create or solicit and transmit any comment, request, suggestion or other communication which is obscene, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another.

Sedition Act 1948: Section 3 (1) (e) – In reference to “seditious tendency” (which would cover racially charged remarks), includes promoting feelings of ill will, hostility (and the like) between different races or classes of the population of Malaysia.

By their very wording, these provisions already allude to hate speech. Section 233(1) of the Communications and Multimedia Act, for instance, would even cover social media messages as it covers messages transmitted through network services.

Our laws have already branched out with trenches that spread far and wide to ensure that liberties to free speech are controlled – which is both hemlock and antidote, a double edged sword. Another law, even one that is specific to hate speech, may only increase fear and incite trepidation in exercising our communal right to free speech.

Lest we turn into a nation that develops “newspeak” like in the prescient book 1984, I fervently hope that we shelf the idea of a specific law for hate speech.

PARVEEN KAUR HARNAM

Advocate and Solicitor of the High Court of Malaya

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