Human Rights Watch (HRW) has released another damning report about Malaysia in which it says that the authorities’ abusive use of criminal laws to arrest, question, and prosecute people for peaceful expression and assembly has increased.
HRW says that, since its previous report about Malaysia, “Creating a Culture of Fear,” was published in October last year, the authorities have prosecuted many of those featured in that report, and has continued to use its “overly broad and vaguely worded criminal laws” to harass, arrest, and prosecute those critical of the government or members of Malaysia’s royal families.
“With calls to strengthen some of those laws rather than narrow or repeal them, the situation for activists, political opposition members, and those using social media has deteriorated,” the new 40-page report, “Deepening the Culture of Fear: The Criminalization of Peaceful Expression in Malaysia,” states.
Since “Creating a Culture of Fear” was published, the Malaysian government has done little to bring its laws and practices into line with international legal standards, HRW says. “Instead, the government has suggested that it will strengthen statutes limiting speech on social media and other rights-offending laws.”
HRW’s deputy Asia director, Phil Robertson, (pictured left) said it was rare that the organisation released a sequel to a report, but, on this occasion, one was warranted.
The Malaysian government has adopted none of the recommendations in the previous report and now has even greater powers to stifle dissent, Robertson says.
“Criminalising peaceful speech appears part of the Malaysian government’s larger effort to tighten the noose on anyone expressing political discontent. The authorities should cease prosecuting people for criticism or perceived ‘insults’, and the government should urgently revise its laws to meet international free expression standards.”
On August 1 this year, the Malaysian government brought in the draconian new National Security Council (NSC) Act, which empowers a security council, led by the prime minister, Najib Razak, to designate security areas in which the authorities will be able to carry out arrests, searches, and seizures without a warrant, and impose curfews.
The legislation has been widely condemned. Robertson described it as “a trapdoor to dictatorial rule”.
The HRW report says the Malaysian government has particularly sought to punish those who have criticised Najib’s administration, for instance by commenting on the massive corruption scandal involving the government-owned 1Malaysia Development Berhad (1MDB) fund.
It also targets those who make comments on social media that are deemed insulting to Najib or to members of Malaysia’s royalty.
The government has sought to discourage people from holding public assemblies and protests by deploying the country’s overly restrictive Peaceful Assembly Act, HRW says, and has gone to great efforts to keep controversial information out of the public view.
“During the past year, the Malaysian government has used the outdated and draconian Official Secrets Act to shield the auditor-general’s report on the 1MDB scandal – a matter of great public interest in Malaysia – from public view, and to prosecute an opposition member of parliament who allegedly disclosed information from that report,” HRW stated.
“Faced with new leaks of information regarding the 1MDB scandal, the government has also threatened to increase the penalties under the Official Secrets Act to life in prison.”
Najib (pictured left) is accused of siphoning off huge amounts of public money for his own use, but denies all wrongdoing.
The US Department of Justice has filed a civil lawsuit in which it is seeking the forfeiture and recovery of more than $1 billion in assets, which it says are “associated with an international conspiracy to launder funds misappropriated from a Malaysian sovereign wealth fund”.
It is alleged that, between 2009 and 2015, more than $3.5 billion in funds belonging to the 1MDB fund was misappropriated.
Najib’s stepson Riza Aziz, and businessman Jho Low have been named in the US lawsuit, while “Malaysian Official 1” was described as Riza’s “relative” and a powerful politician in Malaysia.
At the launch of the new report, the executive director of Lawyers for Liberty, Eric Paulsen, (pictured left) pointed to similarities between the authoritarian laws in Malaysia and Myanmar. “I have no doubt that Malaysia is going down the road whereby we will be mentioned next to Myanmar.
“Our Peaceful Assembly Act was modelled on Myanmar’s assembly laws.”
Paulsen also spoke of double standards and selective prosecution. Red Shirts leader Jamal Yunos, for instance, had made more inflammatory remarks than opposition activists who had been prosecuted, but he had never been charged.
Communications and multimedia
One of the cases that HRW highlights is that of artist Fahmi Reza, who is facing two criminal charges for his posts on social media of an image of Najib with a clown face.
Fahmi has been charged with two counts of violating section 233(1) of the Communications and Multimedia Act (CMA) that forbids disseminating online content deemed to annoy, abuse, threaten, or harass others.
His case has been transferred to a newly created Cyber Court and he faces a possible one-year prison sentence and a fine of 50,000 ringgit (about US$12,000). He is also being investigated for alleged sedition.
The clown image has become a symbol of protest in Malaysia and figured heavily in a recent student demonstration in the capital Kuala Lumpur. The students demanded the arrest of Najib, his wife Rosmah Mansor, Riza Aziz, and Jho Low. Effigies of all four were put into a mock jail cell.
People who have shared Riza’s image have also been subjected to police scrutiny, HRW says. Police called in the opposition Member of Parliament Nurul Izzah for questioning under section 233 after she shared the image on Facebook.
In April this year, police charged Muhammad Zhafiri Zuhdi with violating section 504 of the penal code for putting stickers bearing the clown-face image on a police car after a rally held in protest against the Goods and Services Tax (GST).
HRW also pinpoints the case of Mohammed Amirul Azwan Mohammad Shakri, aged 19, who was also charged under the Communications and Multimedia Act and was sentenced in June this year to one year in prison after he pleaded guilty to “insulting” the Sultan of Johor on social media.
When he appealed against his sentence, arguing that it was overly harsh, the court ordered that he instead be sent to reform school until the age of 21.
In July this year, police arrested a 76-year-old man and detained him for three days for allegedly posting an offensive image of Najib in a WhatsApp message.
“Extending the use of the CMA to WhatsApp messages that are circulated to a limited and specific group of recipients is a troubling expansion in use of the law,” HRW said.
Robertson says the Malaysian authorities have already drafted amendments to the CMA. While the draft amendments have not been publicly disclosed, they are reported to include increased penalties, a requirement that news websites and political bloggers register with the government, and broader powers for the government to take down content.
The government’s strategy, Robertson says, is “to silence critics and create fear, and try to put the Internet genie back in the bottle”.
It seems, Robertson says, that Malaysia wants to try and emulate Singapore in the way that it controls information and cracks down on political content. “The Malaysian government should seriously reconsider this approach and abandon any attempt to adopt a Singapore model for online information that will put it at loggerheads with the Malaysian people.”
The demise of the online publication the Malaysian Insider can be directly connected to the blocking of its website, Robertson says.
HRW says the use of the CMA to block access to websites that are reporting on serious allegations of corruption and other political issues violates not only the rights of those who posted the information, but also those seeking to access information on matters of public interest.
Paulsen says the government has gone to extreme lengths to arrest people under the CMA. “They have even gone out to the high seas to arrest fishermen for Facebook comments. And they went to arrest former journalist Sidek Kamiso at 4 a.m.”
Paulsen, who has been arrested numerous times, has been questioned about a Facebook posting that was fabricated and put online under his name.
There is, on the part of the government, “no restraint, no shame, and no accountability”, he says.
‘The prime target is the public’
Chua Tian Chang, who is the MP for Batu and vice-president of the opposition Parti Keadilan Rakyat (People’s Justice Party or PKR), has also been arrested many times and has spent lengthy periods in detention.
The MP, who is better known as Tian Chua, said at the launch of the new report that the government aimed to create a culture of fear. “It is my opinion that the degree of fear that the authorities would like to impose upon the society reflects the degree of insecurity of the authorities.”
The aim, he said, was to make citizens afraid to speak out, and this was now coupled with orchestrated vigilante-like activities by people who escape all forms of prosecution. “The prime target is the public. The objective is for society to get the message so that people will choose to be silent.
“But it will backfire and have the opposite effect.”
According to Tian Chua (pictured left), what Najib is doing to suppress opposition will actually speed up his demise.
The MP is one of six people who were charged under the Sedition Act for speeches made at forum in May 2013 about the outcome of the 2013 general election.
Five of those charged have so far been convicted and sentenced. In each case, the prosecution pressed for significant prison sentences. Tian Chua was sentenced to three months in prison and a fine of RM1,800 (about US$427).
Tian Chua is facing numerous other charges. He is under investigation for participating in a number of allegedly 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.
HRW has reiterated its call for the Malaysian government to cease using criminal laws against peaceful speech and protests, and to bring its laws and policies into line with international human rights law and standards for the protection of freedom of expression and assembly.
“As Prime Minister Najib’s political fortunes fall, Malaysia’s intolerance of critical speech seems to rise,” Robertson said. “Malaysia’s future as a rights-respecting nation shouldn’t become hostage to defending the Najib government’s reputation.”
HRW points out that it doesn’t take a position on 1MDB or civil society calls for Malaysia’s prime minister to resign. “But we strongly condemn the Malaysian government for its wave of human rights abuses against people criticising that government.”
Robertson said there was concern among European Union diplomats and at the United Nations about human rights in Malaysia.
He tells them that, if you look around the Southeast Asian region, “there are few countries worse than Malaysia when you talk about the rapid deterioration of the human rights situation”.
A major Bersih 5.0 demonstration is planned for November 19. While the government is not expected to ban the demonstration outright, legal action is likely to be taken against some of those involved.
There is a lack of legal clarity over whether organisers of a demonstration can be prosecuted for failing to give notice of their intent to assemble. There have been two conflicting appeal court rulings.
On April 25, 2014, the Malaysian Court of Appeals held that issuing criminal penalties for failure to give notice was unconstitutional.
On October 1, 2015, a different Court of Appeals panel held that the criminal penalties were not in violation of Malaysia’s constitution.
The president of the Malaysian Bar, Steven Thiruneelakandan, says that, until the conflict between the two decisions is resolved by Malaysia’s federal court, police and the lower courts are free to choose which decision to follow, leaving Malaysia’s citizens with no clarity about the state of the law.
On September 7 this year, the Court of Appeals ruled that, when two decisions conflict, the later decision prevails.
HRW says that, whether or not the Malaysian constitution allows the imposition of criminal penalties for failure to give advance notice of a peaceful assembly, imposition of such penalties violates international legal standards protecting freedom of assembly.
“International norms establish that no-one should be held criminally liable for the mere act of organising or participating in a peaceful assembly. The imposition of criminal penalties on individuals who fail to notify the government of their intent to peacefully assemble is disproportionate to any legitimate state interest that might be served.”