Malaysia must reverse its crackdown on free expression as candidate for UN Human Rights Council membership

ARTICLE 19 and Suara Rakyat Malaysia (SUARAM) consider that Malaysia’s record on human rights makes it a wholly unsuitable candidate for UN Human Rights Council membership, following the announcement of its intention to run for the term 2018 to 2020 and public pledge.

Malaysia’s worsening record on the rights to freedom of expression, association and peaceful assembly, the non-ratification of the International Covenant on Civil and Political Rights, together with its dismal record of cooperating with the UN human rights system, requires that the government urgently initiate legal reforms and fundamentally change its approach to UN engagement, if it is to demonstrate its genuine intentions to meet its responsibilities as a Human Rights Council member.

UN Human Rights Council Elections

The UN Human Rights Council is the world’s pinnacle human rights organ: an inter-governmental body tasked with strengthening the promotion and protection of human rights, and intended as a “springboard to action” to both prevent and ensure accountability for human rights violations.

Membership on the 47-member council is in theory competitive, with annual elections to determine which States take on the responsibility of advancing the Human Rights Council’s purposes, and elected States serving three-year terms. Elections take place by secret ballot at the UN General Assembly in October, with States taking into account candidates’ contributions to the promotion and protection of human rights, as well as their voluntary pledges,[1]  and commitments in this regard.

For the 2017 elections, Malaysia is among five States seeking election to four vacancies within the Asia and Pacific Group (APG) of States. ARTICLE 19 and SUARAM’s views on Malaysia’s candidacy are without prejudice to the human rights records of other APG candidates or current members.

The APG is the only regional grouping this year where there is not a “clean slate”, allowing for States to objectively assess each candidate’s human rights record before voting. Human rights considerations should be the only factors that are considered in this assessment. However, the opacity of the ballot undermines accountability for how States vote and the credibility of the Human Rights Council as an institution, allowing practices such as vote-trading or voting in line with other interests (such as economic or political considerations).

Freedom of expression in Malaysia deteriorating

In 2017, the Malaysian Government has continued to curtail the right to freedom of expression, both on-line and offline, against international human rights law and Article 10(a) of the Malaysian Constitution.

Contrary to Prime Minister Najib Razak’s April 2017 claim that “free speech is thriving in Malaysia”, this year has seen an escalating crackdown on persons who engage in dissent or openly criticise the government. Human rights defenders, journalists and bloggers, protest organisers, opposition politicians, artists and social media users, continue to face arrest, investigations and other forms of harassment, criminal charges and protracted trials, simply for speaking out. Rather than respond to their legitimate criticisms and calls for reform, Prime Minister Najib Razak has instead labelled these individuals “foreign activists” creating the “perception” of government crackdowns on freedom of expression.

Recent emblematic and non-exhaustive examples of freedom of expression violations in Malaysia include:

• On 19 November 2016, the arrest and detention of Maria Chin Abdullah, the chairperson of the pro-democracy movement BERSIH 2.0, who was kept in solitary confinement for 10 days under the Security Offences (Special Measures) Act 2012.
• The detention and deportation of internationally recognised human rights activists such as Adilur Rahman Khan to Bangladesh (deported 20 July 2017), Han Hui Hui to Singapore (deported 18 June 2017), Joshua Wong to Hong Kong (deported 26 May 2015), and Mugiyanto to Indonesia (deported 7 January 2016), among others.
• The arrest, detention and prosecution of human rights defenders and political dissenters under the Sedition Act 1948. Notable cases includes Zunar in 2015[2]; Khalid Ismath also in 2015[3]; and many others. The March 2017 sentencing of human rights defender Lena Hendry to a fine of RM10,000 or one year in prison under Section 6(1)(a) and (b) of the Film Censorship Act 1998, for possession or exhibition of a film not approved by the Film Censorship Board of Malaysia.
• The investigation in May 2017 of human rights defenders Rama Ramanathan (steering committee member of BERSIH 2.0), Sevan Doraisamy (Executive Director of human rights NGO, Suara Rakyat Malaysia – SUARAM), and Thomas Fann (Chairperson of the human rights organization Engage), under Section 505(b) of the Penal Code for making statements with apparent “intent to cause fear or alarm to the public”. The investigations followed statements by the three activists referring to recent abductions in the country as “enforced disappearances”. The statements referred to the disappearances of Pastor Raymond Koh, Pastor Joshua Hilmy and his wife, as well as social worker Amri Che Mat.
• The charges brought in June 2017 against lawyer and human rights defender Siti Kasim for “obstructing a public servant in discharge of his public functions” under Section 186 of the Penal Code, in connection with a transgender event she attended on 3 April 2016. On 13 June 2017, more than a year after the event and arrest took place, Siti was notified of the charges under Section 186 of the Penal Code, which carries a penalty of two years’ imprisonment and/or a RM10,000 fine.
• In May 2017, five editors and a photographer from The Star newspaper were investigated under the Sedition Act and the Penal Code, after publishing a  photograph of Muslims performing their Tarawih prayer (a prayer performed during Ramadan) underneath the headline “Malaysian Terrorist Leader”. The newspaper immediately issued a formal apology on 28 May citing an “error of judgement”. Editors Rozaid Abdul Rahman, Brian Martin, Dorairaj Nadason, M. Shanmugam and Errol Oh and photographer Mohd Sahar Misni were investigated under Section 4 of the Sedition Act and Section 298(a) of the Penal Code. Section 298(a) of the Penal Code criminalises offences related to incitement of religious hatred, framed as “causing, […], disharmony, disunity, or feelings of enmity, hatred or ill will, or prejudicing, […] etc., the maintenance of harmony or unity, on grounds of religion”.

The Malaysian authorities have used a varied arsenal of laws to target dissent in recent years. In 2017, the Communications and Multimedia Act 1998 (CMA) has overtaken the Sedition Act 1948 as the main tool of censorship, with many other laws also raising concerns.

ARTICLE 19’s legal analysis of the CMA recommended that its overly broad and ambiguous content-based offences be amended and much more narrowly defined, to comply with international human rights law and guard against freedom of expression violations. In April 2017, ARTICLE 19 expressed concerns over the targeting of four social media users, in the space of just two days, under Section 233(1)(a) of the CMA for comments made on social media deemed “insulting” to national leaders. Arrests for social media posts have included those of individuals peacefully wearing protest t-shirts and carrying protest slogans, and status updates critical of Sultans in the country, among others.

Other legislation routinely used to silence political opposition and dissent include the Sedition Act 1948, the Penal Code, the Printing Presses and Publications Act 1984, the Film Censorship Act 2002, and the Official Secrets Act 1972. Wholesale reform of these laws is required in order to ensure that the right to freedom of expression can be exercised in the country without fear.

ARTICLE 19 and SUARAM are also concerned that domestic accountability mechanisms have also been weakened in Malaysia. While the Human Rights Commission of Malaysia (SUHAKAM) retains its “A” status, the Malaysian Government slashed its budget by close to 50% in the year 2015 – 2016, severely restricting its operations. Moreover, SUHAKAM’s yearly reports are largely ignored by the government, and its reports are not debated in Parliament as required by the Belgrade Principles.

In addition to these violations of freedom of expression, SUARAM and ARTICLE 19 are also seriously concerned by the systemic use of torture against detained terrorism suspects, as well as the arbitrary detention of thousands of individuals in Malaysia whose due process rights are routinely ignored.

Malaysia does not cooperate with UN human rights mechanisms

According to the International Service for Human Rights, Malaysia scores dismally on various metrics used to assess states’ engagement with the UN human rights system.

ARTICLE 19 and SUARAM also note that numerous commitments Malaysia made at the Human Rights Council relating to freedom of expression during its last Universal Periodic Review in 2013 remain unfilled.

The Malaysian Government is yet to ratify the International Convention on Civil and Political Rights, which provides the most robust legal protections for freedom of expression at the international level, as well as several other international human rights treaties. The continued enforcement of laws, such as the Sedition Act, which the government has previously committed to repeal, as well as the CMA, demonstrates that the government is still intent on repressing all oppositional expression.

The Malaysian Government’s cooperation with mechanisms of the UN Human Rights Council is also incredibly poor. Notwithstanding the upcoming visit of the UN Special Rapporteur in the field of cultural rights to Malaysia in September 2017, longstanding requests for visits from the Special Rapporteurs on freedom of expression and freedom of peaceful assembly and of association have gone unanswered. The government’s responses to their individual communications frequently deny allegations that their actions violate international human rights law and show a lack of willingness to enter a meaningful dialogue leading to change. Illustrating the government’s contempt for the UN human rights system, Deputy Minister of Home Affairs, Nur Jazlan, has previously characterised the work of special procedure mandates as “foreign interference”.

If elected, this would be Malaysia’s third term as a UN Human Rights Council member state, having previously been a member in 2006 to 2009 and 2010 to 2013. During its last term as a member of the HRC, it is notable that Malaysia routinely engaged in violations for freedom of expression and enacted various regressive laws, including:

• Crackdowns on freedom of peaceful assembly, including the BERSIH 2.0 and BERSIH 3.0 rallies for clean elections, where participants, organisers and independent observers reported numerous incidents of police brutality;
• The arbitrary detention without trial of six Socialist Party of Malaysia’s members in 2011 under the Emergency (Public Order and Prevention of Crime) Ordinance 1969;
• The seven months of harassment and investigation of SUARAM, by six government agencies, for the exposure of the “Scorpene” corruption scandal in which Prime Minister Najib Tun Razak was implicated;
• The replacement of the Internal Security Act (ISA) and Emergency Ordinance (EO) 1969, which were broadly abused to detain activists and political opposition, with the Security Offences (Special Measures) Act 2012 and the Prevention of Terrorism Act (POTA) 2015, which permit arbitrary detention, enable torture and violate fair trial and due process rights.

There has been no accountability for these human rights violations, and the legislation enacted in that period continues to be used to target legitimate dissent. Any claims of the Malaysian government that its potential Human Rights Council membership will lead to a change in direction should therefore be scrutinised closely.

Conclusion

ARTICLE 19 and SUARAM call on the Malaysian Government to make clear commitments to protect and promote the human right to freedom of expression if it is to fulfil its responsibilities as a member of the UN Human Rights Council.

• Repeal the Sedition Act 1948, the Printing Presses and Publications Act 1984, and the Film Censorship Act 1998, and reform the Penal Code, including Sections 186 and 505;
• Reform the Communications and Multimedia Act 1998 (CMA) to ensure it fully complies with international freedom of expression standards, in particular Section 233(1)(a);
• Drop the charges against human rights defenders Lena Hendry and Siti Kasim, as well as the investigations into human rights defenders Rama Ramanathan, Sevan Doraisamy, and Thomas Fann;
• Drop all investigations into The Star newspaper and its journalists under the Sedition Act and Penal Code;
• Drop all investigations and charges against social media users for exercising their rights to freedom of opinion and expression;
• Ratify the core human rights instruments and of their additional protocols, including the ICCPR, and rescind reservations to existing treaties that are contrary to their objectives and principles;
• Extend a standing invitation to all special procedures of the Human Rights Council, and act swiftly to facilitate visits by the mandates on freedom of expression and on freedom of peaceful assembly and association;
• Implement all recommendations made by UN Member States during the previous cycle of Malaysia’s Universal Periodic Review (UPR), in particular those relating to freedom of expression.

Finally, other UN Member States must make clear to the Malaysian Government, ahead of exercising their vote in the Human Rights Council elections at the UN General Assembly, the specific steps that are required to reverse the ongoing crackdown on freedom of expression and many other human rights violations in the country.

For more information contact [email protected], or Mr. Sevan Doraisamy, Executive Director of Suara Rakyat Malaysia (SUARAM) at [email protected] or +603 7954 5724.