MALAYSIA: Still Waiting for Reforms

SHORTLY AFTER Malaysia’s historic 9 May 2018 elections, a new feeling of freedom had swept across the country, and even the most jaded of journalists were giddy with excitement. The poll results, after all, had brought the first change of government in the country since Independence in 1957. The previous administration had also increasingly tightened the informal controls over reporting, particularly in relation to financial scandals dogging then Prime Minister Najib Razak. The victory of the Pakatan Harapan coalition in the elections had thus elicited a literal round of applause among members of the media, indicative of the relief journalists felt.

These days, however, much of that euphoria has dissipated. Malaysia’s freedom of expression regime is in limbo, caught between Pakatan Harapan (PH) coalition’s promises made prior to the elections and the reality of a government attempting to consolidate its grip on power. It also now appears that every step forward is being met with resistance not only from bureaucrats, but also from politicians in the centre of power. As a result, the coalition government has underdelivered on expectations, and has even been showing a disconcerting lack of commitment to the human-rights principles it had pledged to uphold.

For sure, Pakatan Harapan’s election manifesto had made many Malaysians hope that long-awaited reforms would finally begin to happen. The manifesto had been built around five pillars, with each having a variety of promises.

Some of PH’s key commitments can be found in the second pillar, Institutional and Legal Reform. In the 14th promise under that pillar, the manifesto had pledged to “revise” the Official Secrets Act and to enact a Freedom of Information Act (FOIA), as part of a package of measures to combat corruption.

Under the same pillar, in Promise 26 (“Make our human-rights record respected by the world”), the coalition promised to ratify existing human-rights treaties. While no specific mention was made of media freedom and related rights, such ratification would improve the tools available for all human rights defenders, including those working on media freedom.

In promise 27 (“Abolish oppressive laws”), again in the same pillar, the coalition promised to revoke the Sedition Act and the Printing Presses and Publications Act, both of which have curtailed the freedom of journalists and been used repeatedly against members of the media.

Promises to loosen grip on media

There was also a promise to repeal “draconian provisions” in the Communications and Multimedia Act, though there was no commitment here to the necessary wholesale reform that would make the broadcast media independent of government. The promise, however, went on to say: “The Pakatan Harapan Government will ensure that media has the freedom to check and balance our administration. We will review all laws and regulations related to the media so that media freedom is guaranteed. We will also take steps to improve the independence and professionalism of entities such as Radio Television Malaysia (RTM) and BERNAMA.”

It continued, “The Pakatan Harapan Government will also set up a Media Council, comprising its media figures, which will be responsible to develop and implement a code of ethics on reporting and function as a hisbah (accountability) body for public complaints.”

Under Pillar Five, creating an inclusive and moderate Malaysia, promise 50 (restoring the independence and authority of public universities) included a guarantee to improve “freedom of speech and association” through better laws. In promise 60, on promoting Malaysia’s international role, the first commitment was to taking a leading role in the Open Government Partnership, which requires the passage of a FOIA.

Since taking office, however, the PH government led by Prime Minister Mahathir Mohamad has made slow progress on most of these promises. This is despite progressive appointments, such as to the office of Attorney-General and in the Election Commission.

Few changes, mounting problems

By the end of 2018, there were few institutional and legal reforms that had been put in place. Problems for the government to date include managing a civil service that is at times uncooperative, to the point of occasionally being seen to sabotage reform; a lack of openness; an ambivalent attitude towards election promises; and the dilution of the spirit of reform through the influence of defecting opposition politicians and inter-coalition manoeuvring.

What has happened to the colonial-era Sedition Act is illustrative of what has gone wrong with the coalition’s promises. Previous administrations – including those that had been led by Mahathir, who came out of retirement apparently out of sheer frustration over the Najib administration – had used the Act to rein in dissent, resulting in activists and opposition politicians alike to be thrown behind bars. While it includes prohibitions against inciting hatred between different races and religions, it also bans questions on the privileges enjoyed by ethnic Malays and natives of Sabah and Sarawak.

The Sedition Act is a broadly worded law that criminalizes a “seditious tendency” and includes speech and/ or actions that “bring into hatred or contempt or excites disaffection against” groups and institutions, again defined very broadly. Phil Robertson, deputy Asia director at Human Rights Watch, has described the law as “totally inconsistent with international free speech standards, which recognize the right to criticize all government officials”.

While PH was on the campaign trail, the Sedition Act had topped its list of repressive laws that needed to be revoked. Once in power, however, the coalition took until October 2018 to impose a moratorium on the Act. Yet just a few weeks later, in the beginning of December, the moratorium was lifted in response to religiously-inflected violence. The rationale given for the move was to contain the violence, yet subsequent investigations under the Sedition Act have targeted human-rights defenders as well. The Home Minister has even been talking about the Act possibly being amended, rather than repealed.
Misunderstanding or deliberately missing goals?

The PH government has also not shown a commitment to the principle of media independence, particularly in relation to the state broadcaster. A clear example was the Minister for Communications and Multimedia’s announcement that the national broadcaster, RTM, would be “allowed” to cover opposition politicians. This was a failure on the part of the PH administration to recognize reform is needed so that it is not in the government’s power to allow or disallow a broadcaster to cover any individual or event. Rather, the government should be guaranteeing the independence of the broadcaster and saying that any decisions on covering politicians would remain in the hands of journalists.

Government ministers have been issuing messages contradictory to the coalition’s official stances as well. For example, despite the coalition’s stated commitment to freedom of information, tackling corruption, and increased transparency, the Prime Minister has said that the draconian Official Secrets Act is an integral support for the government, and that its repeal would make it impossible to govern the country. A Deputy Minister in the Prime Minister’s Department has also justified the use of the Act to keep secret a report prepared by the Council of Eminent Persons (formed after the election victory to advise the prime minister on reforms and the implementation of the manifesto promises). While there is a place for legislation that spells out penalties for sharing state secrets, the underlying principle of a right to information is difficult to reconcile with the broad definitions in the Official Secrets Act as it currently stands.

All these indicate either an unwillingness by the now-ruling coalition to keep the election promises made in its Manifesto, or a lack of understanding of the concepts of media freedom and human rights. Indeed, by the end of 2018, the only significant reform in terms of media freedom has been the repeal of the Anti-Fake News Act. Then again, the repeal has been postponed by the Upper House (creating a precedent); even once it is passed, it just returns the situation to the pre-election status quo. Pushed through in the final Parliamentary sitting before the May 2018 polls, the Anti-Fake News Act has been used primarily by businesses to prevent legitimate competition. In terms of legislation pertaining to media freedom and freedom of expression, there has been no reform to date.

In the meantime, one emerging troubling trend has been the victimization of already marginalized groups, particularly indigenous peoples and those identifying as LGBTIQ. While there were no promises specifically directed at these groups, the general commitment to uphold human rights should be seen as applying to all people, with special provisions to protect those who are marginalized, rather than protecting just the rights of the majority. Unfortunately, the reverse seems to be the case.

Spot check of relevant cases

CIJ did not undertake regular monitoring of media freedom violations across the period, so the following are indicative of the trends identified above, rather than an exhaustive list of all existing and new cases or developments.

Legislation: Anti-Fake News Act
While the Anti-Fake News Act was repealed by the Lower House, it was blocked by the Upper House (the Dewan Negara). The bill to repeal the Act will come into force in 12 months’ time.

New cases:Extra-legal censorship

Pang Khee Teik/ Nisha Ayub Portraits
In August 2018, organizers of an art exhibition were requested by a Federal Minister to remove portraits of LGBT activist Pang Khee Teik and trans advocate Nisha Ayub. The portraits were removed, even though there was no legal reason for this to have been ordered or done.

Sedition Act
While nobody was charged under the Sedition Act in 2018, a number of people have been investigated under this controversial legislation, despite the PH government’s promises to repeal the Act. Cases this year included:

Fadiah Nadwa Fikri
In July 2018, human-rights activist Fadiah Nadwa Fikri was questioned by police under the Act, in relation at an article that she wrote questioning the role of the monarchy in Malaysia.

Azman Noor Adam
In October, Azman Noor Adam was arrested and investigated under the Sedition Act, for remarks made about the Prime Minister. Azman was released eventually, but the move was framed as being a “magnanimous” choice by Mahathir, rather than because the arrest and investigation was a violation of fundamental freedoms.

On November 29, prior to the announced lifting of the moratorium on the Sedition Act, opposition UMNO Youth member Wan Muhammad Azri – better known as ‘Papagomo’ — was arrested and investigated under the Act, for allegedly making racist remarks after violence broke out at the Sri Maha Devasthanam temple in Selangor.

Four unnamed persons
On 2 December, the police said that they had opened four investigations into comments made on social media following the violence at the temple in Selangor.

Unity and Social Wellbeing Minister P. Waytha Moorthy
On 4 December, the Inspector-General of Police announced that they were investigating a Minister under the Sedition Act, following the Selangor temple incident.

Sevan Doraisamy
The executive director of the human rights organization Suaram, Sevan Doraisamy was investigated on 5 December under the Sedition Act, for organizing a solidarity rally for activist Fadiah Nadwa Fikri, who had been arrested. Sevan’s investigation came just two days after Communications and Multimedia Minister Gobind Singh Deo announced that the Cabinet had lifted the moratorium on the Sedition Act.

Communications and Multimedia Act

Shamsiah Samsuddin
In March 2018, homemaker Shamsiah Samsuddin was handed an eight-month jail sentence for insulting Yang di-Pertuan Agong (King) Sultan Muhammad V on Facebook under s 233 CMA.

Asheeq Ali Sethi Alivi
In August 2018, youth activist Asheeq Ali Sethi Alivi was investigated under s 233 CMA and the Sedition Act over a speech given in support of Fadiah Nakwa Fikri, which allegedly insulted the Agong. His handphone and SIM card were seized by the police.

Mohd Hannan Ibrahim
The fish distributor was convicted of making insulting remarks on social media about two police officers who died in the course of their work. He was sentenced to six months in jail in October.

Ongoing cases

S. Arutchelvan and Eric Paulsen
On 15 August 2018, the public prosecutor dropped two separate sedition cases against human-rights and Parti Sosialis Malaysia activist S. Arutchelvan (popularly known as Arul) and human-rights lawyer Eric Paulsen. Arul had been charged after he labelled Anwar Ibrahim’s sodomy trial as “politically motivated”. Paulsen’s charges related to a tweet that accused the Islamic Affairs Department of promoting extremism. On the same day, a charge against Arul over a Facebook post, under the Communications and Multimedia Act, was also dropped.

Steven Gan and Premesh Chandran
The Attorney-General’s Chambers dropped charges under the Communication and Multimedia Act against the Editor in Chief Steven Gan and Chief Executive Officer Premesh Chandran. The two were being charged with uploading a video with the intention of “upsetting” others. The video was a call by a former UMNO member of parliament calling for the resignation of then Attorney General Mohamed Apandi Ali.

Fahmi Reza
In November, cartoonist Fahmi Reza’s sentence under the Sedition Act was upheld. While the sentence was reduced, Fahmi’s lawyer confirmed that the Attorney-General’s Chambers intended to appeal the reduced sentence.

Tian Chua
On 23 November, former Member of Parliament Chua Tian Chang (known as Tian Chua) had a sedition conviction –based on a political speech given five years earlier — overturned.

Ahmad Muhaiman Mohd Muhayeddin
Charged under the Communications and Multimedia Act, following a posting that showed then-Prime Minister Najib Razak behind bars, Ahmad Muhaiman Mohd Muhayeddin had his charge dropped on 30 November. The deputy public prosecutor said they were no longer interested in pursuing the case.

Political cartoonist Zulkifli Anwar Haque, popularly known as Zunar, had nine charges against him, under the Sedition Act, dropped in July. The cases all referred to Twitter comments regarding the jailing of then opposition politician Anwar Ibrahim. Southeast Asian Press Alliance (SEAPA), May 2019