On October 15 2021, Malaysia secured a seat on the United Nations Human Rights Council (UNHRC) for the 2022 – 2024 term with 183 votes. In light of this, Malaysia has pledged to prioritise the rights of vulnerable groups, empower the youth, uphold environmental rights and continue to advocate strongly against human rights violations. However, Article 19, a civil society organisation, has urged the Malaysian government to honour these pledges, citing the existing lack of freedom of expression as their key concern. This thus begs the question, “Is freedom of speech and expression limited in Malaysia?”
First and foremost, Article 10(1)(a) of the Federal Constitution (“FC”) accords every citizen the right to freedom of speech and expression. However, this right is not absolute since it is subjected to various limitations.
Limitations to Art 10(1) FC
- Art 10(2)(a) FC
Freedom of speech and expression may be restricted for the interest of the security of the Federation, relations with other countries, public order or morality and for the protection of the privileges of Parliament or of any Legislative Assembly or to protect against contempt of court, defamation, or incitement to any offence.
2. Art 10(4) FC
In the interest of the security of the Federation or public order, Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative.
3. S504 and S505 Penal Code
The former criminalises intentional insults made with the intent to provoke a breach of the peace while the latter criminalises the publication or circulation of any statement rumour or report which will cause public mischief.
4. S4(1) Sedition Act 1984 (“SA”)
This section prohibits the uttering, printing, publishing, selling, offering for sale, distributing, importing or reproducing of any seditious publication. For context, s2 SA defines ‘seditious’ as something (usually an act, word, publication, or anything of similar nature) that has a seditious tendency. ‘Seditious tendency’ is defined under s3 SA as a tendency which brings hatred, contempt or to excite disaffection against any Ruler or Government in Malaysia or a tendency to promote feelings of ill will and hostility between different races or classes of the population of Malaysia.
5. S211 and S233 Communications and Multimedia Act
Prohibits the publication of indecent, obscene, false, menacing, or offensive content online.
Aside from these limitations, the freedom of speech and expression in Malaysia has been further hobbled by various challenges over the years. For example, the case of Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Ketua Editor Malaysiakini has further oppressed press freedom when it was held that news media platforms are not only fully responsible for their own articles, but also the comments made by their readers.
Besides, in March 2021, the Malaysian Emergency (Essential Powers) (No. 2) Ordinance 2021 (“EO”) was adopted, allowing the government to prosecute anyone who spreads misinformation about Covid-19. However, the EO was criticised for criminalising a broad swath of speech, including that protected by the right to freedom of expression. It also drew criticism for preventing any fair comments on the government’s COVID-19 response.
Moreover, artistic expression used to facilitate political expression has also faced censorship in Malaysia. For example, prominent graphic designer and social activist Fahmi Reza has frequent run-ins with the law for his satirical political images used to criticise the government. He was charged with ‘violating multimedia laws’ due to his clown caricature protesting against then prime minister Najib Razak who has been facing corruption allegations. He was also arrested for alleged sedition over a Spotify playlist titled “This is Dengki ke?” with Raja Permaisuri Agong Tunku Hajah Azizah Aminah Maimunah Iskandariah’s portrait as the playlist’s cover photo.
As illustrated by the aforementioned limitations and challenges, Article 19’s concern regarding the lack of freedom of expression is not unfounded. In order to live up to its pledges as a member sitting on the UNHRC, the Malaysian government should do its utmost to foster a free, democratic press and maintain freedom of speech. To achieve this, perhaps they may first start by ratifying the International Covenant on Civil and Political Rights as it would assist in broadening the freedom of expression in Malaysia.