1 Nikozilkree

Current Issues In Malaysia Essay 2015

Summary

They are creating a culture of fear. If you engage in any talk of public interest, the police may come to your house, you may be arrested, taken to the police station, remanded. Even members of Parliament are treated that way.
—Yap Swee Seng, former executive director of Suara Rakyat Malaysia (Suaram), Kuala Lumpur, April 14, 2015

Freedom of expression and assembly in Malaysia are currently under attack, aided by the existence of broad and vaguely worded laws that the government can wield to arrest, investigate, and imprison its critics. The recent increase in use of laws that criminalize peaceful expression is a step backward for a country that had seemed to be making progress on the protection of rights. This report examines how the Malaysian government is using and abusing such laws, and the ways in which the laws themselves fall short of international standards.

In Prime Minister Najib Razak’s first term between 2009 and 2013, the Malaysian government rescinded several laws, including the draconian Internal Security Act (ISA), which had been regularly used to restrict civil and political rights, including freedom of expression. During the campaign leading up to the 2013 elections, Najib promised to repeal the notorious Sedition Act as well. As long-time activist Hishamuddin Rais told Human Rights Watch:

When the ISA was abolished, there was a sense of freedom. I thought Malaysia was going in the right direction. When Najib promised to abolish the Sedition Act, I thought: “We have arrived. We are on the right path.”

That optimism has now evaporated. Faced with declining popularity and rising public discontent on a range of issues, the prime minister has responded by cracking down on critics and supporting new laws, such as the 2015 Prevention of Terrorism Act (POTA), that replicate many of the flaws in the laws that were repealed. In November 2014, Najib reneged on his promise to repeal the Sedition Act and announced that the law would instead "be strengthened and made more effective," with "a special clause to protect the sanctity of Islam, while other religions also cannot be insulted." In April 2015, the government pushed through amendments providing for harsher penalties and further restrictions on speech, particularly on social media.

The level of repression intensified in late 2014 and early 2015 as the government faced increasing public criticism about the treatment of former opposition leader Anwar Ibrahim and the imposition of a new goods and services tax. A spiraling corruption scandal involving the government-owned 1 Malaysia Development Berhad (1MDB), whose board of advisors is chaired by Prime Minister Najib, led the government to block websites and suspend newspapers reporting on the scandal and to announce plans to strengthen its power to crack down on speech on the Internet.

While the original focus of the crackdown appeared to be mainly opposition politicians, as public criticism of the government has spread, students, journalists, civil society activists, and ordinary citizens have all been caught up in the wave of repression.

Student activist Adam Adli bin Abdul Halim, for example, has been arrested six times for participating in peaceful protests against the government and for calling for others to do the same. In September 2014, he was convicted of sedition for a speech protesting the 2013 general election and sentenced to one year in jail. He is currently on bail pending appeal, and is now facing a new charge of participating in an “unlawful street protest” in February and an investigation for “activity detrimental to parliamentary democracy” for his role in organizing a recent protest. Due to his activism he was suspended, and then effectively expelled, from his teacher training course at Sultan Idris Teacher Training College. He is currently studying law at a private institution.

Asked why he continues to speak out despite the risks, Adli responded:

It is a duty for us to speak out when the government tampers with the rule of law to keep themselves in power…. It is not about the result or what is to be accomplished in the short term. Protest is necessary to open up more democratic spaces…. Freedom of expression in Malaysia is under duress by the state. The authorities are clearly not in favor of the rights of free speech and expression.

Chua Tian Chang, vice-president of Malaysia’s opposition Parti Keadilan Rakyat (PKR) (People’s Justice Party), is also paying the price for speaking out about political issues. He is facing sedition charges in one case and is being investigated for sedition in another, while the government is appealing his acquittal of sedition charges in a third case. On August 12, 2014, fresh charges were brought against him under section 509 of the penal code for allegedly verbally abusing police officials when months earlier they seized his mobile phone and iPad to investigate one of his statements on social media. He was earlier acquitted of participating in an illegal protest, but is now under investigation for participating in a number of “unlawful assemblies” and for wearing a banned yellow t-shirt bearing the logo of the Coalition for Clean and Fair Elections (Bersih), a group that has been campaigning for electoral reform since 2012. Chua says the government’s actions are politically motivated:

For the authorities, everything I say is a problem.… If you go for peaceful protest, they will catch you for assembling. If you criticize government, they come after you for sedition.

Overly Restrictive Laws as a Tool for Repression

Since the end of colonial rule in 1957, Malaysia has been ruled by coalitions dominated by the United Malays National Organization (UMNO). The current coalition, Barisan Nasional (BN) (National Front), has ruled since 1974. Throughout its more than 40 years in power, BN has used a wide range of overly broad and vaguely worded laws to harass and silence critics and political opponents. Some of these laws have been in place since Malaysia gained independence from the United Kingdom in 1957, while many others have been more recently adopted or amended.

Najib took office in April 2009 pledging to “uphold civil liberties” and exhibit “regard for the fundamental rights of the people,” but the use of broadly worded criminal laws to silence critics and civil society activists has increased dramatically since the 2013 national elections in which BN held onto a parliamentary majority but lost the popular vote. Since the run-up to that election, more than 200 people have been arrested or questioned by the police for doing nothing more than offering peaceful criticism of the authorities or the judiciary or peacefully exercising their right to freedom of assembly.

The weapon most frequently used in this crackdown, as the Adli and Chua cases illustrate, has been Malaysia’s notorious Sedition Act, which has been wielded against opposition politicians, civil society activists, journalists, academics, and ordinary citizens using social media.

In its efforts to silence critics, the government has also turned to broadly worded provisions of the penal code, including sections 504 and 505(b), which criminalize speech that leads to a breach of “public tranquility,” and section 499, which criminalizes speech injuring the reputation of another person, alive or dead.

The Printing Presses and Publications Act (PPPA) has been used to limit the number of printed newspapers, suspend publication of newspapers that report on corruption, deter printing presses from printing books critical of the government, and even to ban the Bersih logo. The Communications and Multimedia Act (CMA) has been used to block websites reporting on corruption, penalize radio stations for airing discussions of matters of public interest, and arrest and prosecute users of social media.

Those engaging in peaceful protest have been prosecuted under the Peaceful Assembly Act (PAA) and section 143 of the penal code, which criminalizes “unlawful” assemblies, while some of those organizing or calling on people to attend peaceful rallies have been charged with or investigated for sedition. In 2015, confronted with increased public focus on allegations of corruption involving 1MDB, the government began threatening those speaking out about corruption with charges of “activity detrimental to parliamentary democracy” under sections 124B and 124C of the penal code. The government did not appear to understand the irony of using a law designed to protect democracy to censor critical speech.

Laws that impose criminal penalties for peaceful expression are of particular concern because of their chilling effect on free speech. As the UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression has stated, with such laws in place,

Individuals face the constant threat of being arrested, held in pretrial detention, subjected to expensive criminal trials, fines and imprisonment, as well as the social stigma associated with having a criminal record.

Many of the individuals Human Rights Watch interviewed referred to a “culture” or “climate” of fear in Malaysia. Fear leads to self-censorship, and self-censorship leads to a stifling of the political debate that is at the very core of a democratic society.

Targeting the Political Opposition

Members of the political opposition have long been a particular target of Malaysia’s more repressive laws, and that trend has continued during the government’s most recent crackdown. At least five opposition members of parliament have been charged under the Sedition Act for criticizing the government, government officials, or the judiciary since the elections, and at least three have been charged under other criminal laws. If convicted and sentenced to more than a year in prison or fined more than 2,000 Malaysian ringgit (RM) (approximately US$482), they will be disqualified from serving in parliament for five years after their release from any term of imprisonment. Opposition politicians serving in state assemblies and those playing leading roles in opposition political parties have also been targeted during the crackdown.

Prominent opposition figures faced sedition charges under Najib’s administration as early as 2009, when the prominent lawyer and MP Karpal Singh was charged with that offense. After a lull, during which there was hope that the law would be repealed, the government resumed aggressive use of the Sedition Act shortly after the 2013 elections, when PKR MP Tian Chua and Parti Islam Se-Malaysia (PAS) MP Tamrin Ghafar were charged with sedition for speeches they made at a public rally protesting the outcome of the elections. In May 2014, Democratic Action Party (DAP) Vice President Teresa Kok was charged with sedition for her satirical Chinese New Year video “Onederful Malaysia CNY 2014,” which depicts Kok as the host of a talk show in which her guests satirize political issues ranging from corruption to Malaysia’s crime rate. The crackdown intensified in August 2014, with five opposition politicians charged with criminal offenses during that month alone:

  • PKR Vice President and lawyer N. Surendran was charged with sedition twice, in both cases for statements he made about the sodomy case against his client Anwar Ibrahim;
  • Former Perak Chief Minister Mohammad Nizar Jamaluddin, from the opposition Parti Islam Se-Malaysia, was charged with criminal defamation on August 25 for remarks he had made about Prime Minister Najib during the election campaign in April 2012;
  • Khalid Samad, a member of parliament from PAS, was charged with sedition on August 26 for remarks he made regarding the Selangor State Islamic Religious Council, a government body that advises the sultan of Selangor;
  • DAP Penang State Assemblyman R.S.N. Rayer was charged with two counts of sedition on August 27 for saying “celeka celeka UMNO”(“damn, damn UMNO”) during an assembly session in May 2014 and for making a similar comment at a campaign rally the same month;
  • PKR Secretary General Rafizi Ramli was charged on August 28 with violating section 504 of the penal code, which criminalizes “intentional insult with intent to breach the peace,” for a statement he made alleging that right wing groups who were staging protests in front of churches in Selangor were being orchestrated and supported by UMNO.

The police have also investigated, and in many cases arrested and held in custody for several days, at least 20 opposition politicians since August 2014, some of them multiple times.

Targeting Civil Society

Activists and civil society groups who criticize the government have also come under increasing pressure. Student activists Adam Adli bin Abdul Halim and Safwan Anang and long-time civil society activist Hishamuddin Rais were all charged with sedition after speaking at the May 13, 2013, public meeting at which Tian Chua and Tamrin Ghafar also spoke. All three have since been convicted and are on bail pending appeal, and all have been subjected to further arrests and investigations for their involvement in protests against corruption and participation in the demonstrations that followed the February 2015 sodomy conviction of Anwar Ibrahim.

The decision by the Federal Court of Malaysia, on February 10, 2015, to uphold Anwar Ibrahim’s sodomy conviction and sentence led to an explosion of public criticism, followed by a concerted crackdown on those who spoke out. Malaysian political cartoonist Zulkifli Anwar Ulhaque, better known as Zunar, was charged with a record nine counts of sedition on April 3, 2015 — one for each of nine tweets he sent on February 10 criticizing the verdict. If convicted on all counts, Zunar faces a long term of imprisonment.

Comments on the government’s handling of religious issues have also resulted in arrests and sedition charges. In one notable example, Eric Paulsen, the executive director of Lawyers for Liberty, was charged with sedition on February 5, 2015, for a tweet that criticized the Malaysian Islamic Development Department (JAKIM), a government agency, for issuing sermons that allegedly promoted extremism. Paulsen was subjected to a frenzied media campaign that included death threats, and was accused of insulting Islam. As Paulsen himself noted in a tweet responding to the hate campaign: “My statement was referring to JAKIM as a government agency. Criticism of JAKIM should not be construed as insulting Islam.”

Paulsen was arrested for sedition a second time on March 22, 2015, in connection with a tweet that criticized efforts by the state government in Kelantan to introduce Sharia-based punishments.

Many other civil society activists have been investigated, arrested, and harassed for exercising their rights to freedom of expression or freedom of assembly.

Targeting the Media

The media have not been immune from the crackdown on peaceful political commentary. Officials have denied licenses required under the Printing Presses and Publications Act (PPPA) to news outlets viewed as critical of the government, and government agents have threatened to withdraw printing licenses from presses that publish books and other material that officials dislike. The PPPA was also used to suspend publication of two newspapers for three months for reporting on the allegations of corruption involving the prime minister and 1MDB.

According to Editor-in-Chief and Co-Founder Steven Gan, the online news portal Malaysiakini routinely has to deal with lawsuits, as well as other forms of harassment:

One time we published a letter criticizing UMNO. The police came and asked who wrote the letter, which was under pseudonym. We protect identity to encourage free opinion. We refused to provide details. The police confiscated our computers…. We have the police come in at least once a month. It has become routine really. Someone files a complaint and they want a statement.

The government has even initiated sedition investigations in at least two cases in which journalists were merely reporting the news. In March 2015, three editors, the chief executive, and the publisher of The Malaysian Insider (TMI), an online news portal, were arrested for sedition and violation of the Communications and Multimedia Act. Their “offense” was to report that the Malaysian Council of Rulers had rejected a proposal to amend federal law to allow the implementation of Sharia-based punishments in the state of Kelantan – a report which the Council of Rulers denied.

Targeting Social Media Users

The government crackdown on speech in Malaysia has affected not only politicians and activists, but also ordinary citizens, particularly those who use social media. As the project coordinator for Suara Rakyat Malaysia (Suaram), a highly respected Malaysian human rights organization that has been documenting the increased use of the Sedition Act, observed:

Last year they started with politicians, then branched out to lecturers and activists. People started realizing that it affects not just political people but also ordinary people.

According to Suaram documentation, a number of ordinary citizens were charged with sedition in 2014 for statements made on Facebook or other social media, while many more were subjected to investigations and arrests. J. Gopinath, a 28-year-old engineering assistant, was charged with sedition on June 19, 2014, based on a 2012 Facebook posting that was viewed as insulting to Islam. Although he had been arrested shortly after the posting, he was not charged until after the start of the post-election crackdown. Despite the fact that his post was in response to a post insulting his Hindu faith, the individual who posted the video to which he was responding was never prosecuted. He was convicted and fined RM 5,000 (US$1,209).

The 2015 amendments to the Sedition Act seem specifically designed to give the government more control over social media and the Internet. These amendments make it an offense to “propagate” or “cause to be published” seditious material, and enable the government both to order the deletion of supposedly seditious material and to prohibit the person who posted that material from having access to “any electronic device.”

Restrictions on Freedom of Assembly

Faced with rising public opposition, the Malaysian government is also cracking down on individuals involved in protests. The government initially did so by invoking section 9(5) of the Peaceful Assembly Act (PAA), which makes it a criminal offense to hold a public assembly without giving the government 10 days’ advance notice. Despite the fact that this provision was held unconstitutional by the Malaysian Court of Appeal on April 25, 2014, the government continued to invoke section 9(5) when arresting protesters until as late as April 2015, while also adding charges of “unlawful assembly” under section 143 of the penal code.  

A series of peaceful protests held in the wake of the Federal Court conviction of Anwar Ibrahim (the “KitaLawan” rallies) resulted in the arrest of numerous opposition politicians and activists, many of whom were arrested at night and held in custody for several days. As Rafizi Ramli, one of the opposition politicians who has been repeatedly arrested and held by the police points out: “The police are increasingly using that route to frighten, harass, and keep people away from important functions.”

A demonstration on March 23, 2015, at the Kuala Lumpur Customs House intended to raise questions about the imposition of the new goods and services tax resulted in the arrest of 79 people, including S. Arutchelvan, then secretary general of the Parti Sosialis Malaysia (PSM) (Socialist Party of Malaysia). On April 23, 2015, 50 of those activists and politicians were charged under section 447 of the penal code and section 21(d)(1) of the Peaceful Assembly Act for criminal trespass and not abiding by an order to disperse. A largely peaceful rally against the goods and services tax, held on May 1, 2015, resulted in another wave of arrests, including that of prominent lawyer Ambiga Sreenevasen, who was detained for sedition and illegal assembly and held overnight.

Public indignation at reports implicating Prime Minister Najib in the 1MDB scandal and at the government’s response to that reporting led to an August 1 protest organized by student activists calling for Najib to resign. A much larger 34-hour protest, organized by Bersih and held on August 29 and 30, also called for Najib’s resignation or for a vote of no confidence against him, and for a host of institutional reforms to tackle corruption. Despite the fact that both protests were peaceful, the organizers were accused of “activity detrimental to parliamentary democracy” and arrested or summoned for questioning, as were some of the participants. No charges related to those protests have yet been filed.

Abusive Police Tactics and Selective Prosecution

The use of overly broad laws to crack down on dissent has been accompanied by a disturbing use of aggressive tactics that seem designed to harass and frighten those critical of the government. Instead of asking government critics to come to the police station to make a statement, the police arrest them, often at night, and sometimes with threatening and unnecessary displays of force. After the KitaLawan assembly held on March 28, 2015, for example, six carloads of police came to the house of PAS MP Khalid Samad at 3:20 a.m. the following morning to arrest him for sedition and unlawful assembly. Many of the officers were carrying M16 assault rifles. He was released from custody at 9:30 p.m. He has not yet been charged with an offense.

In some cases, the police appear to be using arrest and remand as a form of preventive detention. In the days preceding the KitaLawan rally, the police arrested at least four activists and opposition politicians involved with the rallies. Rafizi Ramli and Hishamuddin Rais were both arrested on March 27 and held until after the conclusion of the March 28 rally. Rais was seized by a group of men wearing plainclothes as he got out of a taxi the evening of March 27: “As I leaned forward to pay the taxi they grabbed me. One put his arm around my neck and pulled me, squeezing my neck. They were not wearing uniforms and did not identify themselves.”

After being driven around Kuala Lumpur for a while, he was finally taken to the Dang Wangi police station and detained overnight. The following day, the police asked that he be remanded for four days so that they could complete their investigation into violations of section 9(5) of the Peaceful Assembly Act and section 143 of the penal code. He was finally released at the end of his remand. While he had not been charged as of the time of his interview, he noted that “at any time they can trigger this bomb.”

For opposition figures and activists, or those perceived as such, the police frequently request the maximum remand of four days even where there is no apparent justification for doing so. Hishamuddin Rais noted that when he was finally questioned on the last day of his four day remand, after three days during which no investigation appeared to take place, “they asked very little: just the basics like name, age, and profession.”

Cases involving individuals perceived as sympathetic to the ruling coalition are handled quite differently, if they are pursued at all. When Mashitah Ibrahim, a former deputy minister in the ruling coalition, made a false claim that Malaysians of Chinese descent were “burning Qurans,” she was not arrested or remanded, but simply asked to come in and give a statement. The inconsistent treatment by the police of those perceived as pro-opposition and those perceived as pro-government creates a troubling appearance of bias in the handling of criminal cases.

Key Recommendations

Malaysia is an active member of the United Nations and, in October 2014, was reelected as a non-permanent member of the UN Security Council after a 15 year hiatus. The country has also served three terms on the UN Human Rights Council and has repeatedly reaffirmed its commitment to the Universal Declaration of Human Rights. Indeed, the official website of the Malaysian attorney-general states that Malaysia, “by virtue of being a member [of the UN], has subscribed to the philosophy, concepts and norms provided by the Universal Declaration of Human Rights, which sets out the minimum and common standard of human rights for all peoples and all nations.”

The current repression of critical speech makes a mockery of those affirmations. If Malaysia wants to be taken seriously as a rights-respecting member of the United Nations, it must bring its laws and policies into line with international norms and standards, including by implementing the following recommendations:

To the Prime Minister and the Government of Malaysia

  • Develop a clear plan and timetable for the repeal or amendment of laws as recommended at the end of this report and, where legislation is to be amended, consult thoroughly with Suruhanjaya Hak Asasi Manusia (SUHAKAM) (Human Rights Commission of Malaysia) and civil society groups in a transparent and public way;
  • Drop all prosecutions and close all investigations based on peaceful expression or  peaceful assembly. At a minimum, immediately drop all investigations and charges of sedition based on criticism of judicial decisions, the government, government decisions or government bodies in light of the parliament’s decision, in the 2015 amendments to the Sedition Act, to delete such criticism from the scope of that law;
  • Establish a clear policy that participation in peaceful assemblies should never be the basis for charges under sections 143, 124B or 124C of the penal code;
  • Instruct all police departments that it is their duty to facilitate peaceful assemblies, not to hinder them. Persons and groups who are organizing assemblies or rallies should be permitted to hold their events within sight and sound of their intended audience, and the police should take appropriate steps to protect the safety of all participants; and
  • Instruct all police departments to avoid late night or evening arrests of persons charged with crimes unless necessary to prevent flight or the destruction of evidence and to permit individuals to appear voluntarily to give a statement unless there is a clear and compelling reason to believe that an individual will not comply with a police summons relating to an investigation.

Methodology

This report was researched and written between March 2014 and October 2015. It is based primarily on in-depth analysis of Malaysian laws used to restrict freedom of expression and assembly and on the interviews described below. It also draws on court judgments and news reports concerning criminal proceedings in relevant cases, and public statements by the government.

Human Rights Watch went to Kuala Lumpur in August 2014 and April 2015, where we interviewed 38 lawyers, opposition politicians, journalists, activists, members of civil society organizations, and academics, some of them multiple times. Further in-person interviews were conducted in London. Telephone interviews and email correspondences continued until the time of publication. Interviews were conducted in English; no incentives were offered or provided to interviewees.

On August 10, 2015, Human Rights Watch sent a letter to four members of the Malaysian government requesting their input. The letter, a copy of which is contained in Appendix 1, was sent by fax, email, and registered mail to Minister for Home Affairs Zahid Hamidi, Attorney General Haji Mohamed Apandi bin Haji Ali, Inspector General of Police Khalid bin Abu Bakar, and Chairman of the Malaysian Communications and Multimedia Commission Dr. Halim Shafie. Unfortunately, none of those contacted responded.

The report is not meant to be a comprehensive list of all laws that criminalize free speech in Malaysia, but discusses the laws that have proven to be most prone to misuse and abuse.

I. Background

Since gaining independence in 1957, Malaysia has been ruled by party coalitions dominated by the United Malays National Organization (UMNO).  Both the original Alliance Coalition and Barisan Nasional (BN), the coalition formally registered in July 1974 that has now ruled the country for more than 40 years, have a history of using criminal laws to suppress speech and marginalize the opposition. For much of that time, the most frequently used laws were the Internal Security Act (ISA), which authorized administrative detention for up to two years, and the Emergency (Public Order and Prevention of Crime) Ordinance (EO), which allowed the police to hold individuals in detention for 60 days.[2]

During the 1960s and 1970s, the Malaysian government used the ISA to suppress political activity, such as that of the Labor Party of Malaysia and the Party Sosialis Rakyat Malaysia (PSRM).  Approximately 3,000 persons were administratively detained during the years between the passage of the ISA in 1960 and the assumption of power by then-Prime Minister Mahathir Mohamed in 1981. Mahathir, who served as prime minister from 1981 until 2003, used the ISA extensively to imprison political opponents and human rights activists, with the most prominent example being Operation Lalang in October and November 1987, during which the government detained 106 human rights advocates and political activists from the major political parties. Mahathir also led the effort at that time to amend the ISA to include provision 8(b), which eliminated the possibility of judicial review of ISA decisions. Mahathir used the ISA in high profile cases including the 1998 detention of his former deputy Anwar Ibrahim and the 2001 detention of senior Parti Keadilan Rakyat activists who were publicly demanding Anwar’s release.

Mahathir regularly used the Printing Presses and Publications Act (PPPA) to control the press and to penalize publications critical of the government. In 1996, opposition parliamentarian Lim Guan Eng was tried for “false reporting” under the PPPA and for sedition for criticizing the government’s handling of rape charges involving a member of UMNO. He was subsequently convicted and sentenced to 18 months in prison.Irene Fernandez, then director of women’s and migrants’ rights organization Tenaganita, was also charged with “false reporting” under the PPPA in connection with a report she published on the mistreatment of migrant workers in Malaysia’s immigration centres.After a trial lasting almost seven years, she was convicted and sentenced to a year in prison.

The PPPA was also used to attack the newspapers run by opposition political parties. After BN lost ground to Parti Islam Se-Malaysia (PAS) in the November 1999 elections, the Ministry of Home Affairs accused Harakah Daily, the PAS-run newspaper, of breaching the conditions of its publishing license by selling the paper to non-PAS members. The government also arrested the editor and printer of the paper on charges of sedition for publishing an article that alleged a government conspiracy against Anwar Ibrahim. In March 2000, the ministry restricted the number of issues the paper could publish and banned it from sale on newsstands.

Protests and rallies were strictly controlled using the draconian Police Act, which required a police permit to hold an assembly and authorized the use of force to break up unauthorized gatherings. The government regularly used the act to ban political rallies linked to opposition political parties or concerning issues (like campaigns to repeal the ISA) opposed by the government. Those organizing rallies supporting Anwar Ibrahim and the ‘reformasi’ movement he inspired, or raising concerns about his arrest and prosecution, were regularly denied permits. Repeated public demonstrations in support of Anwar in 1999, 2000, and 2001 were met with tear gas, chemical-laced water cannons and baton charges, and the arrest of dozens of people for illegal assembly under the Police Act or for rioting under the penal code. In July 2001, the government announced a ban on all political rallies, stating that they would undermine the country’s security.

Mahathir stepped down as prime minister in 2003 and was replaced by his deputy Abdullah Ahmed Badawi, but the suppression of dissent continued unabated. During Badawi’s rule, the Malaysian Communications and Multimedia Commission (MCMC) ordered Internet services to block online news portal Malaysia Today for printing “slanderous statements that threaten public order.” The government also detained critics, including the editor of Malaysia Today and opposition politician Teresa Kok, under the ISA; suspended several opposition party newspapers from publication for three months using the PPPA; and refused to grant a permit to the Coalition for Free and Fair Elections (Bersih) for a rally demanding electoral reform, and then arrested many of those who went forward with the planned protest.

In April 2009, Najib Razak took over as prime minister pledging to “uphold civil liberties” and exhibit “regard for the fundamental rights of the people.” Najib initially fulfilled his promises of reform. He acted quickly to rescind the bans on the opposition party newspapers, later saying that Malaysia needs “a media …that is empowered to responsibly report what they see without fear of consequence.”He released 13 people held under the ISA, and pledged to review that law and other repressive security laws. However, restrictions on those newspapers and on public assemblies continued.

When Bersih announced a “Walk for Democracy” for July 9, 2011, the police announced that they would not issue a permit for the march and threatened to take “stern action” against anyone who participated. The Home Affairs Minister also declared Bersih an “illegal organization” under the Societies Act. In the lead up to the rally, the police used the Sedition Act, the Police Act, the Societies Act and the PPPA to arrest some 270 supporters for wearing or selling Bersih’s yellow t-shirts, printing or possessing Bersih posters, or promoting the coalition’s aims at public meetings. The police also raided the Bersih offices, arrested staff, and called in the rally’s organizers for questioning. On July 9, the police broke up the Bersih 2.0 rally, which had been a peaceful and well-disciplined event, with baton charges and tear gas, arresting nearly 1,700 people.

Najib did take steps to reform some of the more repressive laws. His government repealed the Emergency Ordinance in the fall of 2011 and, in June 2012, repealed the ISA.[16] In December 2011, the government passed the Peaceful Assembly Act which, while flawed, eliminated the need for a police permit and some of the more draconian elements of the Police Act. The government also eliminated the annual renewal requirement for printing licenses in the 1984 Printing Presses and Publications Act and lifted the ban on student participation in politics through amendments to the 1971 University and University Colleges Act. In July 2012, in the run-up to the 2013 general election, Najib promised to repeal the Sedition Act and replace it with a “National Harmony Act.”

Nevertheless, when Bersih organized a major rally to take place in Kuala Lumpur on April 28, 2012, police still cracked down with excessive force, breaking up what had been an entirely peaceful rally. City officials had refused rally organizers’ request to use Dataran Merdeka Square in central Kuala Lumpur, and police backed that up with a court order forbidding entrance to the square. Over 250,000 people attended the rally, but when a small group dismantled a police barricade, police launched an all-out assault with tear gas and baton charges to break up the entire rally.[18]Suruhanjaya Hak Asasi Manusia (SUHAKAM), the national human rights commission, determined in an inquiry that “there was use of disproportionate force and misconduct by the police toward the participants” of the rally.[19]

The 2013 general election brought the government’s movement towards reform to an end. Although Barisan Nasional maintained its parliamentary majority, it received only 47 percent of the popular vote, while the opposition coalition Pakatan Rakyat received more than 50 percent of the popular vote. The wave of repression documented in this report soon followed.

II. International and Domestic Legal Standards

The Universal Declaration of Human Rights (UDHR) provides in article 19 that:

Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[20]

The UDHR further provides, in article 20, that “everyone shall have the right to freedom of peaceful assembly and association.”

Although the declaration is not a treaty, it is a foundational document of the United Nations, and since its adoption in 1948 is widely regarded as having acquired binding legal authority as customary international law. Malaysia has repeatedly reaffirmed its commitment to the UDHR.

Elaborating on the Universal Declaration, the International Covenant on Civil and Political Rights (ICCPR) provides in article 19 that:

Everyone shall have the right to hold opinions without interference.
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.[24]

Although Malaysia has not acceded to the ICCPR, the widely-accepted covenant is generally viewed as persuasive guidance on the scope of the rights set out in article 19 of the UDHR.>[26]

The UN Human Rights Committee (HRC), an independent body of experts that provides authoritative interpretation of the International Covenant on Civil and Political Rights, has stressed the importance of freedom of expression in a democracy:

[T]he free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion.... [C]itizens, in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members.

The guarantee of freedom of expression applies to all forms of expression, not only those that fit with majority viewpoints and perspectives, as noted by the European Court of Human Rights in the seminal Handyside case:

Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the Development of every man.... [I]t is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.[28]

Under international law, the right to freedom of expression is not absolute. Given its paramount importance in any democratic society, however, the UN Human Rights Committee has held that any restriction on the exercise of this right must meet a strict three-part test. Such a restriction must (1) be “provided by law”; (2) be imposed for the purpose of safeguarding respect for the rights or reputations of others, or the protection of national security or of public order (ordre public), or of public health or morals; and (3) be necessary to achieve that goal.[29]

The Malaysian Constitution

Article 10(1) of the Constitution of Malaysia provides that: a) every citizen has the right to freedom of speech and expression; and b) all citizens have the right to assemble peaceably and without arms.  However, with respect to freedom of expression, the constitution grants parliament the power to impose, by law:

Such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.[30]

With respect to freedom of assembly, the Malaysian constitution allows parliament to impose “such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof of, public order or morality.”

The constitutional protection for these rights falls short of that provided in international law, for it allows parliament to impose restrictions it deems “expedient,” rather than only those that are actually necessary to protect national security, public order, public health or morals, or the rights and reputations of others. Notwithstanding its less stringent standard for restrictions, Malaysia’s constitution unambiguously calls for respect for the rights of freedom of expression and assembly, as also required by international law.

III. The Criminalization of Peaceful Expression

The Najib administration, particularly since 2013, has been using a range of overly broad and vaguely worded laws to harass, investigate and arrest individuals for their peaceful expression. Some of these laws are recently enacted while others are carried over from the British colonial era; still others are existing laws that were recently amended to broaden the restrictions on speech or assembly. This section describes those laws, identifying provisions that do not comport with international standards for the protection of freedom of expression and assembly, and examines how they have been used to criminalize peaceful exercise of those rights.

Sedition Act of 1948 and Amendments

The Sedition Act is currently the government’s primary weapon against dissent. Originally enacted by British colonial authorities to contain a communist insurrection, it was only infrequently used between 2009, when Najib first became prime minister, and 2013. After the 2013 elections, however, the government began to use the law aggressively to harass, arrest and prosecute opposition politicians, civil society activists, and anyone else who has spoken critically about the government, the judiciary, religion, or a number of other “sensitive” issues.

The current version of the Sedition Act imposes criminal penalties on any person who:

  • (a)does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act which would, if done, have a seditious tendency;
  • (b)utters any seditious words;
  • (c)prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or
  • (d)imports any seditious publication.

The law further makes it criminal to possess any seditious publication “without lawful excuse.”

The law never actually defines sedition. Instead, “seditious,” as used in the law, is said to “qualify the act, speech, words, publication or other things as one having a seditious tendency.” Initially, “seditious tendency” was broadly defined in Section 3(1) of the Sedition Act to include speech having a tendency to "bring into hatred or contempt or to excite disaffection against" the government, the king or the ruler of any state, or the administration of justice in Malaysia, or to “raise discontent or disaffection” amongst the inhabitants of Malaysia. At the time the original Sedition Act was promulgated, British colonial authorities were attempting to suppress an armed insurrection by the Communist Party of Malaya and the law played a central role in those efforts.

The definition of seditious tendency was expanded during the State of Emergency that the government declared on May 15, 1969 and that continued until February 1971. The expanded definition in Section 3(1)(e) included speech with a tendency to “promote feelings of ill-will and hostility between different races or classes of the population of Malaysia.” Speech that questions certain portions of the constitution, including article 152 (making Malay the official language), article 153 (providing special rights for Malays and natives of Sarawak and Sabah), and article 181 (preserving certain rights for ruling chiefs in the states), was also made seditious.

In 2015, the definition of seditious tendency was further amended to delete the reference to “the government” from section 3(1)(a) and to delete the provision dealing with the administration of justice. While the government presented these changes as a liberalization of the law, nothing in the amended act prevents the authorities from treating criticisms of the government as seditious on the grounds that they have a tendency to “cause discontent among the inhabitants of Malaysia” in violation of section 3(1)(d).

Moreover, the 2015 amendments added a new section 3(1)(ea), making expression with a tendency “to promote feelings of ill will, hostility or hatred between persons or groups of persons on the ground of religion” part of the definition of seditious tendency. As Yin Shao Loong, executive director of the Institut Rakyat, a think tank set up by the PKR, explains:

Many critiques of the government fall in the areas of race or religion. Even economics is tied up with race, religion and the rulers. So most criticism of the government can probably still be charged as sedition even under the amended law.

Those charged prior to the effective date of the 2015 amendments face the possibility of up to three years in prison and a fine of RM 5,000 (US$1,210) for a first offense, and up to five years in prison for any subsequent offense. Those charged with sedition once the 2015 amendments enter into force will face significantly higher penalties. As amended, the court will no longer have the option to impose a fine. Instead, those convicted of sedition will face a minimum sentence of three years in jail and a maximum of seven years.

In addition, the 2015 amendments created a new offense of “aggravated sedition.” Under the new section 4(1A), any person who commits sedition (as broadly defined in the statute) and “by such act causes bodily injury or damage to property” faces the possibility of up to 20 years in prison, and must be sentenced to a minimum term of three years.The law does not require that the property damage be substantial or that the speaker or his or her intended audience commit the injury or damage. As Eric Paulsen, executive director of Lawyers for Liberty, points out, “If I make a ‘seditious’ statement and someone gets mad and hits someone, I am responsible and face up to 20 years in jail.”

Long-time activist Maria Chin Abdullah, the current chair of the Coalition for Clean and Fair Elections (Bersih) and head of the women’s rights NGO EMPOWER, is very troubled by this provision:

It is crucial to look at the fact that violence is being justified. If I make a statement about the use of Allah and the Bible and it results in the burning of churches, the ones who burned the churches won’t get penalized, but the one who used the word Allah gets arrested. This justifies the violence and leads to impunity.

Yap Swee Seng, former executive director of Suaram, the Malaysian human rights NGO, commented on the chilling effect of the Sedition Act:

People are definitely more careful now in terms of what they say, tweet, and post. That will be even truer after the amendments to the Sedition Act. It is a much more serious risk now.

Comparison to International Standards

The Sedition Act goes well beyond the standard definition of sedition, which has generally been interpreted to require an intention to incite the public to violence against constituted authority or to create a public disturbance or disorder against such authority. While the government claims that the restrictions on speech in the Sedition Act are intended to deal with “threats against peace, public order and the security of Malaysia,” in both language and application they sweep far too broadly to justify that claim.

Moreover, under the Malaysian Sedition Act, the intention of the speaker is irrelevant if the speech, publication or act has a “seditious tendency.” This effectively permits the imprisonment of citizens who had no intention of “exciting disaffection,” much less of undermining national security or public order, simply because someone else views their statement as having the “tendency” to do so. The fact that a statement is truthful is also not a defense to a charge of sedition if the court finds that the statement had a “seditious tendency.”[53] Thus, a statement alleging corruption in a government contract could result in a conviction for sedition, even if the statement is true, if the court finds that the statement had a tendency, for example, to “cause discontent among the citizens of Malaysia.” As a result, it is almost impossible to defend against a charge of sedition. As one defense lawyer told Human Rights Watch, “acquittals in sedition cases are rare. They occur only if you can prove that the defendant did not utter the allegedly seditious statement.”

A few examples of recent uses of the Sedition Act show just how broadly it can be and is being used:

  • Azmi Sharom, a member of the law faculty at University of Malaya, has been charged with sedition for giving his legal opinion that actions taken during the political crisis in Perak in 2009 were illegal and should not be repeated;
  • Political cartoonist Zulkiflee Anwar Ulhaque, commonly known by his pen-name Zunar, has been charged with nine counts of sedition, one for each of the nine tweets he sent criticizing the Federal Court’s decision to uphold the sodomy conviction of Anwar Ibrahim;
  • Five journalists and editors from online news portal The Malaysian Insider have been investigated for sedition for reporting on actions allegedly taken by Malaysia’s Council of Rulers; and
  • Constitutional scholar Dr. Aziz Bari has been investigated for sedition for articles discussing the role of the sultans under the Malaysian constitution.

As lawyer and opposition MP N. Surendran told Human Rights Watch:

They say the [sedition] law is needed for ethnic relations, but the people are fine. They are using it against people who are not doing anything to do with religion and race. They are creating fear of an ethnic explosion to justify laws to keep the people down.

The Sedition Act is further flawed in that it fails to formulate the restrictions it imposes on speech “with sufficient precision to enable the citizen to regulate his conduct.” “Seditious tendency” is loosely defined with terms such as “ill-will,” “discontent,” and “disaffection,” that are both vague and subjective. When a law is so vague that individuals do not know what expression may violate it, it creates an unacceptable chill on free speech.

Vague provisions not only give insufficient notice to citizens, but also leave the law subject to abuse by authorities. As activist Hishamuddin Rais says:

Sedition is a dragnet. Any time they can pick you up if they want to. What is sedition? It is up to [the government’s] interpretation. It is a draconian and abusive law.

The Sedition Act raises particular concern because, even as amended, it effectively restricts discussion of many government actions, as well as discussion of sections of the Malaysian constitution, including those providing special privileges for Malays and retaining certain privileges for the rulers of the states.[62] The right of individuals to criticize or openly and publicly evaluate their governments without fear of interference or punishment is an essential aspect of the right to freedom of expression, and restrictions on such speech must be closely scrutinized.[63]

As a New Zealand law commission recommending abolition of the country’s sedition law concluded:

People may hold and express strong dissenting views. These may be both unpopular and unreasonable. But such expressions should not be branded as criminal simply because they involve dissent and political opposition to the government and authority.

The Sedition Act provides that speech will not be considered seditious solely on the basis that it “has a tendency to point out errors or defects in Government or in legislation… with a view to their removal.”[65] However, that limitation applies only if “the act, speech, words, publication or other thing has not otherwise in fact a seditious tendency,” and it specifically excludes any matters dealing with the rights and privileges granted to the rulers and the Malay majority in Part III of the Malaysian Constitution. It has thus done little to limit the application of the law to critics of the government or those commenting on sensitive issues.

On October 6, 2015, the Federal Court of Malaysia rejected a constitutional challenge to the Sedition Act, holding that the restrictions it imposes on speech are consistent with article 10(2) of the Malaysian Constitution.

The Sedition Act as a Tool of Repression

The possibilities for abuse of the Sedition Act are amply demonstrated by the wave of arrests of opposition politicians, activists, lawyers, the media and even academics that began after the 2013 election and intensified in August 2014. The Malaysian authorities have arrested lawyers for statements they made in representing their clients; an opposition member of parliament for a speech she made on the floor of parliament; a university professor for the expression of his academic opinion about the legality of an action taken by the government six years earlier; and a range of ordinary citizens for comments made on Facebook or Twitter.

Following the April 2014 decision by the Court of Appeal to convict former Deputy Prime Minister and later opposition leader Anwar Ibrahim of sodomy and to impose a five year prison sentence, a prosecution seen by Human Rights Watch and many other observers as politically motivated, the government launched a wave of sedition investigations and arrests of those commenting negatively on the verdict. The decision by the Federal Court of Malaysia, in February 2015, to affirm Anwar’s conviction was followed by another wave of investigations and arrests of those who expressed their outrage at the verdict. Despite the April 2015 amendment removing from the definition of seditious tendency statements tending to “bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any state,” the government has thus far shown no sign of dropping the cases against those charged with sedition for criticizing the courts’ verdict. While many of the cases discussed below have been on hold while the constitutional challenge to the Sedition Act was pending, they are likely to resume now that the court has rejected that challenge.

Use Against Opposition Politicians

One of the primary targets for the Sedition Act has been opposition politicians, who face the possibility of a five year disqualification from serving in Parliament if convicted and sentenced to more than a year in prison or fined more than RM5,000 (US$1,210). Since the 2013 elections, the government has investigated at least 20 opposition politicians under the sedition law, and charged at least six federal and state opposition politicians with violating it.

The Prosecution of Karpal Singh

The first sedition prosecution after Najib’s election was that of the late Karpal Singh. Singh was a lawyer, the chair of the opposition Democratic Action Party, and a member of parliament who was much admired for his devotion to human rights and to an independent judiciary. The authorities jailed him without trial from October 1987 to January 1989 under the now repealed Internal Security Act.

The government filed sedition charges against him in March 2009 for his comments at a news conference on February 6, 2009. Specifically, he expressed his legal opinion on a constitutional matter during the political crisis in Perak state saying, “In law, the decision of the Sultan of Perak can be questioned in a court of law.”Singh, noting that his arrest came only days after his son had criticized Najib in parliament, claimed that the charges were “obviously politically motivated.”

The charges against Singh originally referred to section 3(1)(a), which requires that the statement have a tendency to bring “into hatred or contempt or to excite disaffection against” any ruler and 3(1)(d), which focuses on statements that “raise discontent or disaffection amongst the subjects” of any ruler or amongst the inhabitants of Malaysia. In June 2010, the High Court acquitted Singh, finding that the prosecution had failed to make a prima facie case that his statement had a tendency to “incite hatred, insult and disloyalty to the Ruler."

On appeal, the government argued that the statements had a seditious tendency as defined in section 3(1)(f) of the Sedition Act, which defines as seditious any statement questioning any matter under a variety of provisions of the Malaysian constitution, including article 181, which provides that no ruler may be charged in his official capacity in a court of law. The Court of Appeal overturned the acquittal in January 2012 and returned the case to the High Court for trial.

Singh was convicted, on February 21, 2014, of uttering seditious words and fined RM2,000 (US$484).As a result of the conviction and fine, he also faced disqualification as a member of parliament and resigned his party posts on March 29, 2014. Singh was tragically killed in an automobile accident in April 2014. At the time of his death the government was still arguing that he should be given a sentence of imprisonment rather than just a fine.

The Prosecution of Tian Chua

Malaysian authorities have filed sedition charges against Tian Chua, vice-president of PKR and a member of parliament, in two different cases. In the first case, filed two months before the election, he faced charges under section 4(1)(b) of the Sedition Act for alleged remarks to a journalist suggesting that the security operation at Lahad Datu, in Sabah, between Malaysian security forces and armed men from the Philippines, was part of a “planned conspiracy” by the government“to divert attention and frighten citizens.”Because several soldiers involved in the security operation were killed in a firefight after he made his statement but before it was posted online, he was accused of disrespecting soldiers, who largely are recruited from the majority Malay Muslim community.He was acquitted after a trial in November 2014 because the government could not prove that he uttered the words that were the basis of the charge.[78] The government has appealed.

The second case, filed on May 29, 2013, and still pending, is linked to his speech at a forum held on May 13, 2013, calling upon voters to challenge the 2013 election results. There were several speakers at the forum and five, including Tian Chua, were charged with sedition. He is currently free on bail in that case. Chua was also investigated for sedition for tweeting, in reaction to the Court of Appeal’s decision in the Anwar Ibrahim case, “If Najib sends Anwar to prison for five years the people will bring him down in five months.” After a two-month investigation, during which the police seized and held his phone and tablet, he was told that he would not be prosecuted for sedition. A week later, he was charged, instead, with violating section 509 of the penal code by uttering swear words at police personnel when they seized his phone.

Tian Chua says that the government is determined to crush the opposition:

For the authorities, everything I say is a problem… If you go for peaceful protest, they will catch you for assembling. If you criticize government, they come after you for sedition.[80]

He believes that “much of what they are doing is intended to deter ordinary members of the public from getting involved in political activities and rallies led by the opposition.”

Teresa Kok’s “Seditious” Video

Teresa Kok, MP and national vice-chair of the opposition Democratic Action Party (DAP), was charged with sedition on May 6, 2014.The prosecution is based on a satirical video, “Onederful Malaysia CNY 2014,” that she posted for Chinese New Year.[83] In the video, Kok appears as a host of a fake interview show. The three “guests” on the show poke fun at a range of current issues in Malaysia, ranging from discrimination against Chinese and Tamil language education to the fact that Malaysia was listed in one survey as the sixth most dangerous country in the world. According to Kok, the sections that discussed those two topics were among the six parts of the video listed on the charge sheet as being “seditious.” She said:

They wanted to target me. The claims are always that it is anti-government, thus anti-Malay and anti-Islam, and therefore, anti-the king. This video was another excuse. It is a very selective and arbitrary use of the Sedition Act. It is only used against the opposition. It is to undermine the opposition.[85]

Kok said that she was threatened after the airing of the video. A group of Muslim NGOs calling itself “Council of Islamic NGOs” claimed the video was an insult to Malays, Muslims and Malay rulers, and offered RM 1,200 (US$290) to anyone who dared to slap Kok and provide photographic evidence of the act. The group also slaughtered chickens at a protest held at Jalan Tun Perak on February 7 and smeared the blood on a banner that featured Kok’s photograph.When Kok filed a police report, Home Minister Datuk Zahid Hamidi responded that offering a reward for someone to slap her “was not a threat.”

Activists and lawyers point out that his remark was inappropriate and that threats of violence should be investigated and prosecuted.[88] Teresa Kok said that the home minister’s remarks encourage attacks against her. “Are they going to take action only after I have been attacked?”[89] The next court date in Kok’s sedition prosecution is scheduled for December 7, 2015.

N. Surendran’s “Seditious” Defense of Anwar Ibrahim

N. Surendran, a PKR MP and a lawyer who represents many of those charged under Malaysia’s repressive speech laws, has been charged with sedition in two separate cases, both related to comments on the sodomy prosecution of Anwar Ibrahim, whom he represented in his appeal to the Federal Court of Malaysia. The first case was in connection with a statement he made to the press attacking the Court of Appeal’s decision to overturn Anwar’s acquittal by a lower court. Although the statement was made in March 2014, he was not charged until August 18, 2014, when the government crackdown intensified.

A second sedition charge was brought against him on August 29, 2014, for repeating Anwar’s defense that his prosecution on sodomy charges was “an attempt to jail the opposition leader of Malaysia,” and that Prime Minister Najib was responsible. Surendran made the statement outside the courthouse after a hearing to fix the date for Anwar’s appeal to the Federal Court. According to Surendran, after his press conference was uploaded on YouTube:

Right wing groups started lodging police reports against me. The Chief Minister of Kedah said that every UMNO division in the state of Kedah should lodge a police report. Reports were lodged all over the country, even in Borneo. A Sabah UMNO MP lodged a police report in Sabah. The police used the upswell of complaints as a justification for acting.[92]

As Surendran notes, he has been “charged with sedition for repeating my client’s defense to the press.”

The Prosecution of Khalid Samad, R.S.N. Rayer, and Fakhrulrazi Mohamed Mokhtar

The government has charged at least three other opposition politicians or office holders in opposition political parties with sedition in the past thirteen months:

  • Khalid Samad, a member of parliament from Parti Islam Se-Malaysia (PAS), was charged with sedition on August 26 after he called for review of the powers of the Selangor State Islamic Religious Council (MAIS) after it failed to abide by the attorney general’s decision that Iban and Malay-language Bibles seized from the Bible Society of Malaysia should be returned;
  • DAP Penang State Assemblyman R.S.N. Rayer was charged with two counts of sedition on August 27, 2014 for saying “celeka celeka UMNO”(“damn, damn UMNO”) during an assembly session in May 2014 and for making a similar comment at a campaign rally the same month;
  • Former PAS Youth Treasurer Fakhrulrazi Mohamed Mokhtar, now youth chief for newly formed Parti Amanah Negara, was charged with sedition on September 8, 2015, for a speech he made at the February 28 KitaLawan rally in which he called for the release of Anwar Ibrahim.

Sedition Investigations: Rafizi Ramli and S. Arulchelvan

The government has investigated and harassed many other opposition politicians using the Sedition Act. Rafizi Ramli, the secretary general of PKR, has been the target of five separate sedition investigations. S. Arulchelvan, who was secretary general of Parti Sosialis Malaysia (PSM) at the time, was investigated for sedition in connection with a statement the party issued condemning the Federal Court decision against Anwar Ibrahim. According to Arulchelvan, 10 police officers came to his house on February 19, the first public holiday of the Chinese New Year:

I asked if they needed to seize anything and they said yes. They took my laptop and one of my phone bills to show that I have internet connection in my house. They also took my hand phone and the modem and wire.

He was taken to the police station and put in the holding cell. The next day, the police requested that he be remanded for four days.

They said they needed to see who else conspired with me to make the statement. They also said that, since I use several offices, they needed time to go to the other offices and do their investigation. The police said the statement was made “too fast” after the verdict, implying that we somehow knew in advance. My lawyers argued that they didn’t need to remand me to seize items and search my office.

The magistrate denied the request for remand and Arulchelvan was finally released at about 5:30 p.m. He has not yet been charged in connection with that investigation.

The Sedition Investigation of Nurul Izzah Anwar

Nurul Izzah Anwar, an MP from the opposition party PKR and the daughter of jailed opposition leader Anwar Ibrahim, read a speech on good governance and judicial reform on the floor of Parliament on behalf of her father on March 10, 2015. According to Anwar, “On March 11, a Barisan Nasional MP attacked my speech as insulting the judiciary. On March 12, the vice president of PERKASA filed a police complaint against me.”

Anwar, who has two small children, was arrested at 6 p.m. on March 16, 2015, even though she had appeared at the police station earlier that same afternoon to give a statement in a Peaceful Assembly Act investigation. She was held in the police lock-up overnight and told that the police were going to request a four day remand. The following morning, the investigating officer drove her to her home and demanded that she produce the original copy of the speech, which she did. She was then returned to the police station for the recording of her statement: “They asked things like ‘what do you mean by Satan?’ They showed me a video of my speech and asked ‘is this you?’

A decade ago, in 2005, Malaysia chaired ASEAN. During its chairmanship, two notable events took place. First, it hosted the first East Asia Summit (EAS) where heads of states gather together for dialogue on broad strategic, political, and economic issues. Second, it established a mechanism that allows ASEAN leaders and civil society representatives to exchanges ideas with one another.

This year, Malaysia is again chairman of ASEAN and, as one of the five founding members of ASEAN, there are high expectations of its capability to establish a stronger ASEAN community, facilitate the fulfillment of economic integration, and maintain the centrality of ASEAN in the regional architecture. Its ability to lead will be tested as it balances securing the interests of the region along with its own national interests.

The changed geopolitical and economic realities in the region, as evident in the South China Sea disputes and the movement towards the establishment of an integrated ASEAN Community, will affect Malaysia’s chairmanship in ASEAN. How it will be able to adapt and cope with these changes remains to be seen.

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Malaysia’s ASEAN Priorities

Establishing a people-centered ASEAN is the primary goal of Malaysia this year as is reflected in the overall theme -“Our People, Our Community, Our Vision.” For the longest time, ASEAN has been criticized as an elite-driven and state-centric project. This is illustrated by the fact that activities and projects of ASEAN are only known among experts, political leaders, and government officials but little information is disseminated to the citizens and concerned stakeholders. This low awareness level is a factor hindering the overall achievement of community building, as expressed by ASEAN’s Secretary General Le Luong Minh in his remarks on ASEAN’s community building efforts in March 2013.

The success of the ASEAN Community will not only be reflected in the improvement of people’s lives but also how the people take ownership of it. By creating an inclusive environment that welcomes and engages ASEAN citizens in the building process, Malaysia will surely be able to bring ASEAN a step closer to the people. Malaysia’s Prime Minister Datuk Seri Najib Tun Razak emphasized that there must be involvement of all sectors in the society in ASEAN activities and processes.

Aside from building a community that values inclusivity, Malaysia is prioritizing and promoting the practice of effective and responsive governance. It also seeks to provide solutions to ‘soft’ issues such as strengthening ASEAN institutions and mechanisms, environmental protection, empowering women in societies, and providing opportunity for all. In this way, people engagement will contribute to the development and greater prosperity of the region.

Regional economic integration

2015 marks an important and crucial year for ASEAN as the ten member states are geared towards the integration and realization of the ASEAN Economic Community (AEC). Among the three pillars of the ASEAN Community, the AEC has arguably been the most productive, and ASEAN Member States (AMS) have adopted 80 percent of all measures based on scorecards. But issues related to non-tariff barriers, the free flow of skilled workers, and varying levels of development among member states, remain a challenge to regional economic integration.

Malaysia faces tough challenges as it tries to get ASEAN closer to fulfilling the AEC. Projects and initiatives such as the ASEAN Single Window (ASW), ASEAN Single Aviation Market, and ASEAN Qualifications Reference Framework, among others, created in fulfillment of ASEAN’s goals as envisioned in the three pillars of the ASEAN Community, must be more specific, measurable, attainable, relevant and time-bound. Therefore, there is a need to closely monitor the progress of incomplete tasks and make sure that completed ones progress even further.

The South China Sea disputes

Another crucial issue is the South China Sea (SCS) disputes. China’s growing assertiveness makes Malaysia’s role as ASEAN chair critical, and balancing national and regional interests will be its greatest challenge since Malaysia is a claimant and has its own approach to the issue.

As a claimant state in the SCS, Malaysia has traditionally preferred quiet diplomacy rather than taking a tough stance against China. Analysts argue that this is due to Malaysia’s close relations with China. These two countries have a two-way trade volume that reached $106 billion in 2013, and Malaysia has become China’s third largest trading partner in Asia and its top trading partner in ASEAN. But increasing encroachments of Chinese vessels into Malaysian waters has caused some caution in Kuala Lumpur. This has factored into Malaysia’s calculations as it seeks to increase its capabilities, including by stepping up patrols along its coastlines and announcing the establishment of a naval base not far from James Shoal in Bintulu, Sarawak.

Malaysia says it is committed in pushing forth region-wide solutions to the SCS disputes. It looks favorably upon the adoption of the Code of Conduct (COC) that will provide a pragmatic framework to manage the disputes peacefully.  Ideally, Malaysia would be an effective facilitator in concluding the COC with China given their close relations. However, experts are wary that it would likely continue its preventive diplomacy or “low-profile” approach in addressing its maritime territorial disputes. It is in Malaysia’s interest to manage its disputes with China bilaterally than internationalizing it. It will not take the risk of disrupting its beneficial relations with China because any disruption entails economic costs.

Regional architecture

ASEAN has been successful in convening major powers in multilateral platforms such as the East Asia Summit (EAS) and the ASEAN Regional Forum (ARF). Through these platforms, ASEAN is able to lead other states and is simultaneously given diplomatic leverage in its relations with big powers. AMS are also able to promote their interests. Therefore, it is essential that ASEAN, through Malaysia’s leadership, maximize these avenues for dialogues and assert ASEAN’s centrality. ASEAN must continue to lead in the  shaping of the evolving regional architecture. Moreover, this year, as Malaysia chairs ASEAN during the 10th year anniversary of the EAS, crafting the agenda will prove challenging as it will be expected to incorporate broader interests and take into account proposals for its evolution.

Conclusion

Malaysia’s chairmanship is happening during exciting and challenging times. Expectations can be quite overwhelming as it straddles between political and economic considerations. Addressing issues related to the economic and socio-cultural pillars will be at the top of Malaysia’s list of priorities. Nonetheless, Malaysia must also discuss concerns that are political and security oriented. It must balance hard and soft issues.

Even if the deadline for the ASEAN Community is not met, as many expect, the challenge for Malaysia will be to accelerate progress towards the achievement of the ASEAN Community and regional integration. Equally essential to this task is Malaysia’s role in formulating the post-2015 roadmap for the community building. In the longer-term, the expectation is that ASEAN can move forward to become truly people-centered.

Moreover, ASEAN centrality should not be about rhetoric but must be affirmed by member states. Even when the national interests of AMS continue to trump regional ideals in geopolitical and security matters, ASEAN must stay on course and maintain unity despite diversity.

Effective leadership for Malaysia in 2015 means finding a strategic balance between engaging big powers and AMS; creating avenues through which all stakeholders are comfortable. It also means ensuring that Malaysia’s national interests do not trump the region’s interests.

Jeremie P. Credo is a Foreign Affairs Research Specialist with the Center for International Relations and Strategic Studies of the Foreign Service Institute. This article was originally published as a CIRSS commentary by the Foreign Service Institute of the Philippineshere.

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