KUALA LUMPUR, May 10 — Anti-government and even racist views must be protected under provisions for free speech in the National Harmony Act which is set to replace the Sedition Act, as long as they do not incite violence, lawyers said.
Civil liberties lawyers argued that two recent cases suggest that the scope of free speech should be widened.
DAP’s Teresa Kok was recently charged with sedition for a video purportedly critical of government policies, while Islamist group Ikatan Muslimin Malaysia (Isma) is under police investigation for sedition for making anti-Chinese remarks.
“Just because a speech is insensitive, offensive, bigoted or racist does not mean that there is a danger of physical harm to others,” Syahredzan Johan told The Malay Mail Online.
“I think the threshold for criminalising free speech should be much higher than it is right now. The state should only step in to take action if that speech is likely to threaten or incite physical harm towards others,” the lawyer added.
In 2012 Prime Minister Datuk Seri Najib Razak said the The National Harmony Act will replace the Sedition Act of 1948. But the new law has yet to be laid out in parliament, leaving the Sedition Act still enforceable.
The police announced a sedition probe against Isma this week after the Islamist group said the influx of Chinese immigrants into Tanah Melayu was a “mistake” that must be rectified.
The Islamist group also labelled the country’s second biggest race “invaders”.
Various groups have been testing of the extent of freedom of expression, among the fundamental liberties enshrined in Malaysia’s constitution.
Former DAP chairman, Bukit Gelugor MP and lawyer Karpal Singh fell foul of the 66-year-old law and was convicted in February for saying that the Sultan of Perak’s actions in the 2009 state constitutional crisis could be questioned in a court of law.
Karpal was killed in a car crash April 17 and never got to appeal the conviction.
His DAP colleague and Seputeh MP, Kok, was charged with sedition May 6 for her satirical video on issues like the education system and intrusions in Lahad Datu, Sabah.
Separately, speakers at a forum on Christianity in Universiti Teknologi Mara (UiTM) claimed last Tuesday that the Gospels in the New Testament were “fake” and that Jesus Christ was simply a “human slave to Allah”.
The Christian Federation of Malaysia said in response that the seminar amounted to “hate speech” that threatened interfaith harmony in the country.
Syahredzan, however, said he did not see how such statements advocated physical harm.
The lawyer also pointed out that politicians from the ruling Barisan Nasional (BN) have frequently raised the spectre of May 13 racial riots in response to the Pakatan Rakyat (PR) opposition pact or anti-government activists.
“Misguided, these claims may be, but if we take the claims of other people as basis for state action, we will never see the end of it,” the lawyer added.
In a protest staged by Penang Umno in January, the May 13 race riots in 1969 was again raised. The protest was against PKR’s Machang Bubuk state assemblyman Lee Khai Loon for organising a flash mob where he stuffed “kangkung” (water spinach) into an effigy resembling Najib, mocking the prime minister’s remarks on the vegetable and the rising cost of living.
Civil liberties lawyer Nizam Bashir said the constitutional right to freedom of speech included the right to offend and to be provocative.
“We should be more open to discussions and dialogues, no matter how offensive it may be, as long as it doesn’t cross the threshold of lawlessness,” Nizam told The Malay Mail Online.
He noted that the US Supreme Court ruled in 1969 that free speech should only be made a criminal offence if there is a likelihood of “imminent” lawlessness or violence.
The lawyer said Malaysia should similarly criminalise free speech only if it leads to “imminent” or immediate lawlessness.
“The threshold for freedom of expression in Malaysia should be higher and we should adopt the test set by the US Supreme Court in Brandenburg v Ohio in 1969, that is, speeches which advocate for the use of force or which call for violating the law are protected, unless where such speech will incite or produce imminent lawless action or is likely to do so,” said Nizam.
“What that means is that even advocacy of illegal action at some indefinite future time is protected. This naturally may mean that speeches, such as the ones made by Perkasa in the past threatening to burn bibles, may be protected,” he added.
The lawyer said Perkasa’s threat alone to burn Christian holy books was unlikely to cause lawlessness right away and noted that no violence had occurred after the Malay rights group’s threat was issued.
Nizam stressed, however, that threatening to physically assault someone, such as those by several Muslim groups to slap DAP’s Kok, would not be protected by the constitutional right to free speech.
“Legalities aside however, enlightened voices should always weigh in and speak up for those who bear the brunt of such speeches,” he added.
The police said in January last year that Perkasa president Datuk Ibrahim Ali would be investigated under the Penal Code and the Sedition Act for his alleged remarks on torching bibles.
Lawyers for Liberty co-founder Eric Paulsen also agreed that under the National Harmony Act, Malaysians should have the right to criticise the government or to express deeply conservative views.
“The threshold for freedom of speech must be very high. Only in exceptional circumstances whereby certain speech should be criminalised, statements that incite violence, for example,” Paulsen told The Malay Mail Online.
He stressed, however, that the authorities should not practise double standards in applying free speech laws.
BY BOO SU-LYN. The Malay Mail Online