Briefing Paper: Blasphemy Provisions in Malaysian Law January 2021 ARTICLE 19 Free Word Centre 60 Farringdon Road London, EC1R 3GA United Kingdom T: +44 20 7324 2500 F: +44 20 7490 0566 E: [email protected] W: www.article19.org Tw: @article19org Fb: facebook.com/article19org © ARTICLE 19, 2021 This work is provided under the Creative Commons Attribution-Non-Commercial-ShareAlike 2.5 licence. You are free to copy, distribute and display this work and to make derivative works, provided you: 1) give credit to ARTICLE 19; 2) do not use this work for commercial purposes; 3) distribute any works derived from this publication under a licence identical to this one. To access the full legal text of this licence, please visit: http://creativecommons. org/licenses/by-nc-sa/2.5/legalcode. ARTICLE 19 would appreciate receiving a copy of any materials in which information from this report is used. ARTICLE 19 bears the sole responsibility for the content of the document. 2 CONTENTS Introduction 4 International Human Rights Law & Standards 6 Blasphemy under international human rights law 7 Positive measures to combat ‘hate speech’ 8 Blasphemy in Malaysian Law 10 Sections 298 and 298A (1) of the Penal Code 10 Section 3(1) and 4(1) of the Sedition Act 1948 10 Section 233 of Communications and Multimedia Act 1998 (CMA) 11 Section 7(1) of the Printing Presses and Publications Act 1984 11 Use of Malaysia’s blasphemy provisions 12 Recommendations 13 3 INTRODUCTION Malaysia is an ethnically and religiously diverse democracy, but in recent years its multicultural consensus has frayed in the face of increasingly strident religious conservatism. Moreover, successive governments have repeatedly used blasphemy provisions in Malaysia’s legal framework to target individuals who challenge majority religious views. These provisions are incompatible with international human rights standards. Their application to silence religious minorities and dissenters violates the rights to freedom of expression, freedom of religion or belief, and equality and non-discrimination. In March 2019, the Department of Islamic Development Malaysia (Jakim) invited the public to lodge complaints about any media content, including content on social media platforms, that insults the Prophet Muhammad or Islam.1 Jakim established a new unit to monitor complaints and refer them to the Royal Malaysia Police (PDRM) and the Malaysian Communications and Multimedia Commission (MCMC) for further action. In its first week, the Jakim unit received over 10,000 complaints. MCMC Chairman Al-Ishsal Ishak promised that the complaint mechanism would be used to expedite ‘enforcement action’ against anyone who contravened a vaguely worded ban on criticizing Islam or causing ethnic disharmony.2 In the year following the establishment of the Jakim unit, authorities arrested several people for allegedly blasphemous online posts. The Perikatan Nasional government, which came to power in March 2020, has continued these efforts. The Deputy Minister in the Prime Minister’s Department (Religious Affairs) Ahmad Marzuk Shaary recently warned that any posts that insult Islam or the Prophet Muhammad will be treated as serious offences, emphasizing that Islamic teaching must be protected since Malaysia is a Muslim-majority country.3 Malaysia’s Penal Code and other laws contain several provisions that have been used to censor and punish expression relating to religion and to entrench a hierarchy of religious beliefs. These include: – Sections 298 and 298A(1)4 of the Penal Code; – Sections 3(1) and 4(1) of the Sedition Act 1948; – Section 233 of the of Communications and Multimedia Act 1998; and – Section 7(1) of the Printing Presses and Publications Act 1984. International human rights bodies and experts have repeatedly warned that blasphemy provisions are inconsistent with international human rights law, including the right to freedom of expression and the right to freedom of religion or belief. Blasphemy provisions are arbitrary and open to abuse. They inappropriately empower government authorities to decide the parameters of religious discourse. Minority groups and individuals holding unpopular opinions are often disproportionately targeted. The enforcement of blasphemy provisions is highly problematic, especially when criminal sanctions are applied. As a result, blasphemy provisions promote intolerance by restricting the rights to freedoms of expression, thought, and religion. Such prejudice can result in devastating consequences for society. 1 Kenneth Tee, ‘In Malaysia, special unit formed to monitor insults against Islam’, Malay Mail, 7 March 2019, available at: https://www.malaymail.com/news/malaysia/2019/03/07/in-malaysia-special-unit-formed-to-monitor-insults-against-islam/1729974. 2 Kalbana Perimbanayagam, ‘MCMC opens channel for offensive “race, religion and royalty” content’, New Straits Times, 17 August 2019, available at: https://www.nst.com.my/news/nation/2019/08/513634/mcmc-opens-channel-offensive-race-religion-and-royalty-content. 3 ‘Jakim to continue monitoring insults against Islam, Prophet Muhammad, says deputy minister’, Malay Mail, 22 June 2020, available at: https://www.malaymail.com/news/malaysia/2020/06/22/jakim-to-continue-monitoring-insults-against-islam-prophet-says-deputy-mini/1877799. 4 Section 298A has been declared unconstitutional by the Supreme Court in Mamat bin Daud & others v Government of Malaysia [1988] 1 MLJ 119 and it cannot be used except in the Federal Territories of Kuala Lumpur, Putrajaya and Labuan. See, e.g. CIVICUS, ‘Criminal defamation laws used to prosecute online criticism of religion and monarchy’, 26 March 2019, available at: https://monitor.civicus.org/updates/2019/03/26/criminal-defamation-laws-used-prosecute-online-criticism-religion-and-monarchy/. 4 This briefing paper sets out the international law and standards relating to blasphemy provisions. The paper analyses the above provisions against those standards and makes recommendations for legal reform. It suggests steps the Malaysia government could take to combat the root causes of discrimination and intolerance. Restricting discourse does not resolve religious and racial tensions. Censorship, including the restriction of online expression, instead fosters intolerance and fear. It is imperative that the government of Malaysia protects the right to freedom of expression and promotes positive policy measures to nurture dialogue and promote understanding between diverse communities. 5 INTERNATIONAL HUMAN RIGHTS LAW & STANDARDS Blasphemy provisions implicate a number of human rights, including the right to freedom of expression, the right to freedom of religion or belief, and the right to equality and non-discrimination. Article 19 of the Universal Declaration of Human Rights (UDHR) guarantees the right to freedom of expression in broad terms, protecting the ‘freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers’.5 Article 19 of the International Covenant on Civil and Political Rights (ICCPR) protects the right to ‘hold opinions without interference’ and the ‘freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice’.6 Any restrictions on freedom of expression must satisfy a three-part test. Restrictions must be provided by law, must only be imposed based on one of the legitimate aims set out in Article 19(3)—exhaustively listed as respect for the rights or reputations of others, the protection of national security, public order or public health or morals—and must conform to the strict test of necessity and proportionality.7 Article 18 of the UDHR and ICCPR protect the right to freedom of thought, conscience, and religion or belief.8 As with the right to freedom of expression, the right to freedom of religion or belief may be restricted by measures that are provided by law, pursuant to a legitimate aim, and necessary and proportionate to that aim.9 Article 2 of the UDHR and Articles 2 and 26 of the ICCPR guarantee the rights to equality and non- discrimination with regard to all rights under the ICCPR, including the rights to freedom of religion or belief and freedom of expression.10 Protecting the right to equality and non-discrimination includes ensuring that laws are not discriminatory on their face or applied in a discriminatory manner. Although Malaysia is not a party to the ICCPR, there is consensus that the protections contained in Articles 2, 18, and 19 of the UDHR and the ICCPR are incorporated into customary international law, and hence binding on Malaysia. International human rights law further calls on states to combat theories of racial superiority. The Convention on the Elimination of All Forms of Racial Discrimination requires that state parties condemn ‘all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and 5 Universal Declaration of Human Rights, Article 19, available at: https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf. 6 International Covenant on Civil and Political Rights, Article 19, available at: https://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf. 7 Human Rights Committee (HR Committee), General Comment No. 34, CCPR/C/GC/34, 12 September 2011, para 22. 8 Article 18(1) of the ICCPR provides that: ‘Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.’ 9 Article 18(3) enumerates exceptions to the freedom of religion: Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.