New law must even protect unpopular views, lawyers say

(The Malay Mail) – 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.

But the lawyer said Malaysia was not ready yet to use America’s criterion of “imminent” violence in policing free speech, in light of racial and religious tensions in the country.

“There are certain boundaries that are drawn, for example, when you call for someone to be injured, or for someone’s life to be affected; that’s not speech that’s protected,” said Nizam.

The lawyer pointed out that the specific threat by some Muslim NGOs to slap DAP’s Kok was not protected by the constitutional right to free speech, as it amounted to criminal intimidation.

He also said Perkasa’s previous alleged threat to burn Malay-language bibles containing the word “Allah” could be prosecuted under the Penal Code.

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.