Executive Summary[1]
The criminal prosecution of blogger Dian Abdullah in Malaysia violates her right to freedom of expression. The American Bar Association Center for Human Rights has been monitoring the proceedings against Abdullah as part of the Clooney Foundation for Justice’s TrialWatch initiative. In June 2020, Abdullah was charged in two instruments with, respectively, “ma[king] statements . . . with intent to cause, or that may cause fear or unrest to the public or to any sections of the public”[2] under Section 505(b) of the Malaysian Penal Code and “consciously ma[king] and commenc[ing] the communication delivery that is abhorrent in nature . . . with intent to offend other people’s feelings”[3] under Section 233(1)(a) of the Communications and Multimedia Act (CMA). The Section 505(b) charge stemmed from a blog post made on March 21, 2020 and the Section 233(1) charge stemmed from a blog post made on March 23, 2020. In both posts, Abdullah criticized the King for his role in appointing a new Prime Minister and criticized the new Prime Minister for allegedly mishandling the COVID-19 pandemic and causing extensive suffering.
Abdullah’s trial commenced on December 22, with the prosecution calling two witnesses from the Police Cyber Response Centre, which monitors Internet posts, blogs, and social media for cyber offenses. The first witness testified that he had read the March 21 blog post and believed it would cause “discomfort” to the Malaysian citizenry but acknowledged that he had not interviewed any citizens about their responses to the post and had not received any complaints about the post. The second witness testified about the March 23 post, stating that he had found some of the terms used in the post to be derogatory and offensive. The trial is set to resume on March 25. The Center is releasing this report prior to the conclusion of the proceedings due to plain violations of international standards on freedom of expression.
The report draws on the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), both of which reflect international human rights standards and both of which guarantee the right to freedom of expression.[4] Under such standards, speech regarding matters of public concern warrants heightened protection. The United Nations Human Rights Committee, charged with interpreting the ICCPR, has delineated requirements that States must fulfil to restrict protected speech: restrictions must be provided by law – clear enough to ensure that officials are not afforded unbounded discretion and that individuals are put on notice of what conduct is unlawful; must have a legitimate objective – the protection of public order, national security, public health, public morals, or the rights and reputations of others; and must be necessary and proportional.
In this regard, even when a State invokes an ostensibly legitimate ground for restriction of freedom of expression, “it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.”[5]
In the present case, Abdullah’s opinions about the transition of power and the government’s response to the COVID-19 pandemic constituted protected speech. Indeed, in addressing matters of public concern, her posts warranted heightened protection. As such, in order to lawfully restrict Abdullah’s speech, the State had to comply with the requirements outlined above.
Abdullah’s criminal prosecution, however, is neither necessary nor proportionate. There is no evidence to suggest that her commentary on matters widely discussed in the public sphere warranted criminal prosecution. In particular, the State has not “demonstrate[d] the precise nature of the threat” posed by Abdullah’s blog posts. Instead, the prosecution has relied on cryptic references to “discomfort,” “fear,” and the “offend[ing of] other people’s feelings” without specifying what risk of harm necessitated criminal charges and how Abdullah’s posts were “direct[ly] and immediate[ly] connect[ed]” to this risk.
In light of the above, the prosecution appears aimed not at serving permissible public interest objectives but at stifling criticism of the Perikatan Nasional coalition’s policies, in line with recent measures such as the widely criticized fake news law.
More broadly, the vagueness of the terms used in Section 505(b) of the Malaysian Penal Code and Section 233(1)(a) of the CMA – among other things, the criminalization of statements likely to “cause public mischief” and statements perceived as “obscene, indecent, false, menacing, or offensive in character” – renders both provisions ripe for abuse, affording the State extensive discretion in their application and contravening the requirement that restrictions on freedom of expression be provided by law.
Going forward, in line with international standards, the Kuala Lumpur Criminal Sessions Court should dismiss the charges against or acquit Abdullah, or the prosecution should withdraw the charges. More broadly, the state should cease employing ill-defined laws as political tools against those who criticize the government.
Background Information
Political and Legal Context
Malaysia is a federal parliamentary democracy with a constitutional monarchy and three branches of government.[6] A Prime Minister heads parliament, which is elected in regular multiparty elections.[7] The King acts as head of state in a ceremonial role and serves a five-year term, the position rotating among the sultans of the nine Malaysian states.[8] Under the Malaysian constitution, the Prime Minister is appointed by the King from the lower house of parliament.[9]
In the 2018 elections, the ruling Barisan Nasional coalition lost to the Pakatan Harapan coalition, “resulting in the first transfer of power between coalitions since independence in 1957.”[10] In February 2020, the Pakatan Harapan coalition, “cobbled together out of disparate political forces – including Malay nationalists, Chinese reformists and liberal Islamists”, collapsed “under the weight of internal rivalries and ideological contradictions,” with Malaysian Prime Minister Mahathir Mohamad resigning from his position.[11]
Days later, the king replaced Mahathir with Muhyiddin Yassin,[12] who leads the Malaysian United Indigenous Party and had partnered with the United Malays National Organization (UMNO), a nationalist party that had dominated Malaysian politics for decades, to form the new Perikatan Nasional government.[13]
With the change in political power, reformists have expressed concerns about UMNO’s nationalist tenets and the prospect that Malaysia will gradually move towards a Malay-centric state, in contrast to the multiethnic coalition that prevailed in the 2018 elections.[14]
Legal Framework
Malaysia has a common law legal system. The judicial structure includes Magistrates Courts, Sessions Courts, two High Courts with original and appellate jurisdiction, a Court of Appeal, and the Federal Court.[15] The Federal Court is the highest judicial authority.[16] It reviews decisions referred from the Court of Appeal and has original jurisdiction in constitutional matters and disputes between states and between states and the federal government.[17] There are also Sharia courts and native courts that apply religious and customary law.[18]
Article 10 of Malaysia’s constitution guarantees freedom of speech and expression.[19] According to the same provision, however, parliament may impose restrictions on the right to freedom of speech and expression on various enumerated grounds, including “as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.”[20]
In addition to the constitution, various criminal laws restrict the right to freedom of expression.[21] The colonial era 1948 Sedition Act criminalizes, among other things, “any act which has . . . a seditious tendency”; the “utter[ing of] any seditious words”; and the printing, publishing, sale or offer to sell, distribution, reproduction, or import of any “seditious publication.”[22] A first time offender can be punished with up to 5,000 ringgit (about 1,200 USD) in fines and/or up to three years imprisonment.[23] A subsequent offence carries up to five years in prison.[24] As documented by Article 19, the government has frequently used the Sedition Act “to suppress dissent and silence opponents.”[25]
Like the Sedition Act, the 1998 Communications and Multimedia Act (CMA) has been widely criticized by human rights organizations.[26] Particularly problematic is Section 233, which foresees a sentence of up to one year in prison and/or a 50,000 ringgit (about 12,000 USD) fine for using “any network facilities or network service or applications service” to “make[], create[], or solicit[] and . . . initiate[] the transmission of . . . communication[s]” that are “obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person”.[27] The law does not define the terms “obscene,” “indecent,” “menacing,” “annoy,” “abuse,” or “offensive in character.” [28] In 2018, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression sent the Malaysian government a communication raising concerns about the CMA, including the vagueness of the terms used in Section 233.[29]
The Malaysian Penal Code contains several provisions restricting freedom of expression, including Sections 499 and 500, which criminalize defamation. Defamation is defined as “mak[ing] or publish[ing] any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm the reputation”.[30] It is punishable with up to two years imprisonment, a fine, or both.[31] The law does not provide exceptions for speech about public figures.
Section 504 of the Penal Code criminalizes insults that cause individuals “to break the public peace, or to commit any other offence,”[32] while Section 505 criminalizes “statements conducing to public mischief,” defined as the making of:
any statement, rumor or report . . . with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public where by any person may be induced to commit an offence against the State or against the public tranquility; or . . . with intent to incite or which is likely to incite any class or community of persons to commit any offence against any other class or community of persons.[33]
Both provisions are punishable with a fine and/or a two-year jail term.[34] According to Article 19, “Penal Code provisions have often been used alongside the Sedition Act [and the Communications and Multimedia Act] to investigate and prosecute government critics.”[35] Such is the case with Dian Abdullah, who being prosecuted under Section 233(1)(a) of the CMA and Section 505(b) of the Penal Code.
Recent Developments
Many observers have expressed concern that Malaysia’s new government has intensified restrictions on free expression. In the words of Thomas Fann, chairman of the local pro-democracy group Bersih: “We are beginning to see a reverting to the old government ways where not only were people called in for questioning—people are now getting charged and brought to court.”[36] Criminal prosecutions for speech offenses initiated since Prime Minister Muhyiddin assumed power in February 2020 include:
- On May 3, 2020, South China Morning Post journalist Tashny Sukumaran was questioned on suspicion of violating Section 504 of the Penal Code and Section 233 of the CMA after reporting on “immigration raids in an area under an enhanced movement control order due to the presence of Covid-19.”[37]
- On May 8, 2020, prosecutors charged business owner Datuk Shamsubahrin Ismail under Section 233(1) of the CMA and Section 505(b) of the Penal Code for social media comments in which he criticized the government for prosecuting individuals who violated COVID-19-related movement restrictions.[38]
- On June 5, 2020, R. Sri Sanjeevan, head of the Malaysian Crime Watch Task Force, was charged with violating Section 233(1) of the CMA for allegedly posting “false” information critical of the Royal Malaysia Police on social media.[39]
- On June 10, 2020, police questioned the founding director of the Centre to Combat Corruption and Cronyism Cynthia Gabriel on suspicion of violating Section 233 of the CMA and Section 4 of the Sedition Act after she issued a public letter calling on the Malaysian Anti-Corruption Commission to investigate allegations of influence trading in the government.[40]
- On June 10, 2020, citing Section 233 of the CMA and Sections 499 and 500 of the Penal Code on defamation, police questioned MP Sivarasa Rasiah about comments he made in November 2019 regarding arrests of alleged supporters of the Liberation Tigers of Tamil Eelam (LTTE).[41]
- On June 14, 2020, prosecutors charged radio personality Patrick Teoh with violating Section 233 of the CMA for a Facebook post that allegedly insulted the crown prince of Johor.[42]
- On July 7, 2020, police questioned NGO Refuge for Refugees founder Heidy Quaha after she posted about poor conditions in immigration detention on Facebook. Though she had received threats as a result of the post, authorities failed to investigate them.[43]
- On November 5, 2020, police initiated an investigation of “leaders of Universiti Malaya Association of New Youth (UMANY) for publishing a post about the role of the king under the Sedition Act and CMA.”[44] In total nine students were questioned; one was charged under Section 188 of the Penal Code for filming a police raid on the home of a UMANY leader.[45]
- On February 19, 2021, after a trial monitored by the Center for Human Rights as part of the TrialWatch initiative, the Federal Court found independent news outlet Malaysiakini guilty of contempt of court for comments made by Malaysiakini users that were critical of the judiciary.[46] Malaysiakini’s editor in chief, Steven Gan, was acquitted.[47]
- On March 1, 2021 Steven Gan and MP Charles Santiago were questioned on suspicion of committing sedition for their criticism of the February 2021 verdict against Malaysiakini.[48]
As reported by Amnesty International, between the beginning of the COVID-19 pandemic and the end of November 2020, the authorities launched 273 investigations related to “allegations of sharing false information” under Sections 500 and 505(b) of the Penal Code and Section 233 of the CMA.[49] In March 2021, Article 19 and Civicus issued a report finding that prosecutions under the CMA had resulted in 12 convictions over the preceding year and that the CMA had been used to “investigate more than 250 individuals alleged to have spread ‘fake news’ about COVID-19.”[50]
Although Minister of Communications and Multimedia Dato’ Saifuddin Abdullah tweeted in May 2020 that his ministry was “looking into” Section 233 of the CMA, there is no indication that the government is taking “concrete steps to reform the law or any others that unduly restrict the right to freedom of expression.”[51]
Most recently, the Malaysian government implemented an ordinance punishing the creation or spreading of “wholly or partly false” news relating to COVID-19 and the corresponding proclamation of emergency with a fine, three years in jail, or both.[52] The executive used its emergency powers to “bypass[] parliament” in imposing the new law.[53]
Case History
Abdullah’s Blog Posts
Dian Abdullah is the author of the independent Malaysia FlipFlop Blog. On March 21 and 23, 2020, Abdullah published two posts in English criticizing, among other things, Prime Minister Muhyiddin and what she described as the inadequate support provided to those who lost employment as a result of the COVID-19 pandemic.[54]
The March 21 post entitled “Thanks to Agong [the King] we have the most dangerous man” displays a photo of Muhyiddin and reads:
It is said that the most powerful man is also the most dangerous man.
Today thanks to Agong, we have Muhyiddin as Prime Minister.
Today Muhyiddin is the most powerful man in Malaysia and the most dangerous man as Prime Minister.
Using COVID 19 as an excuse the Army will be used to stop Bersatu [Malaysian United Indigenous Party] meetings and parliament sitting.
It will be the first in history of Malaysia where a backdoor Prime Minister named by Agong is not going to allow anyone to stripe off his Premiership by using the Army as a shield.
I am sure the Agong knows about this.
Secondly the rise in food cost and mask is an excuse to make money out of the Rakyat [people] in this period of crisis.
A principle man would never allowed this but Muhyiddin day by day is showing us his useless and evil ways.
Only Malaysians can stop and discard this dangerous man. [sic][55]
The March 23 post entitled “Puki Mak Prime Minister of Malaysia” reads:
EPF contributors can now withdraw RM500 monthly for one year.
On behalf of my friends, the poor, the homeless, oku and senior citizens I am writing this.
Puki mak, ben dan, chunni. There are many more words to describe how the Rakyat feel after your er bai wu announcement.
Muhyiddin, we the Rakyat did not vote for you. You are the Prime Minister of Malaysia because of Agong and the rest of the sultan.
Since you became the Prime Minister of Malaysia, you have brought sorrow and frustration to all Malaysians. This whole shit of COVID 19 was the fault of you and [Senior Minister for Finance and Economics] Azmin Ali's greed for power.
Had you and Azmin Ali not attempt at grabbing power, COVID 19 would have been better manage.
Everyday you and your useless cabinet minister are showing us how foolish and incapable your government is.
That is right your government, this is not the government we voted for.
Now we are forced to accept something we did not vote for and we are make to suffer for it.
Everyday stupid announcements and instructions are given, making the Rakyat confused and suffer for nothing.
You put on your expensive suit to show you are somebody but we the Rakyat know that you are just a bloody fool.
You think it is right that Rakyat got to take out their saving of RM500 monthly to buy food.
You think that it is enough. How many Malay families got 1 or 2 kids?
You claimed you are Malay first and Malaysian last. You yourself got how many children?
Rent need money. Fuel need money. Phone need money. Utilities need money. Loan need money. Education need money. Hospital (foreigners) need money. Transport need money. Food need money. Other expenses need money.
The above are for people who are earning a salary.
What about those wage earners, the unemployed, the single parents, the sick, the senior citizens, the homeless, the orphans.
Where the fucking hell they are going to find rm500 every month for their food and expenses.
You and your cabinet ministers and MPs are not working but enjoying life in private pools, private gambling rooms, air cond rooms, private planes, drivers to drive you, bodyguards, maids etc all paid with our money.
Why don't you forfeit their salaries and allowances for 1 year and use that money for the Rakyat who really need them.
Why are you paying that Jamal Jamban RM20,000 to mingle in the health ministry? What special skill is he providing? Sucking cocks.
Right at this moment, Rakyat want to spit at your face and hope that the whole bunch inside PN government will drop dead with COVID 19.
Come ge 15, we will wipe all you fucking faces off this nation.
We the Rakyat cannot stand the sight of cock sucker too.
Malaysians does not deserve a person like you to kill our hope, dream and future. [sic][56]
Procedural History
On June 9 prosecutors charged Dian Abdullah in two separate instruments.
One set of charges relates to the March 21 post and alleges that Abdullah “made statements [on the Malaysia FlipFlop Blog] . . . with intent to cause, or that may cause fear or unrest to the public or to any sections of the public”, making her potentially liable under Section 505(b) of the Penal Code and subject to a fine, two years imprisonment, or both.[57]
The indictment for the March 23 post alleges that on the same blog, Abdullah “consciously made and commenced the communication delivery that is abhorrent in nature . . . with intent to offend other people’s feelings.”[58] The indictment charges Abdullah under Section 233(1)(a) of the CMA, making her potentially subject to a fine, one year imprisonment, or both. Both the indictments include a copy of the blog post at issue. The indictments do not explain which parts of the blog posts allegedly violated the law.
On June 9, Abdullah appeared before Kuala Lumpur Criminal Sessions Court and posted 4,000 ringgit (about 1,000 USD) in bail.[59] The trial commenced on December 22. The prosecution has thus far called two witnesses, both of whom are inspectors from the Police Cyber Response Centre, which monitors internet posts, blogs, and social media for cyber offenses.[60]
The first witness testified about the March 21 post. As noted above, the prosecution alleged that Abdullah published the post “with intent to cause, or that may cause fear or unrest to the public or to any sections of the public”, pursuant to Section 505(b) of the Penal Code. The inspector stated that he read the March 21 post the day it was published and believed that the post had insulted the King because it questioned his decision to appoint the new Prime Minister.[61] The inspector concluded that the post had caused “discomfort” to those citizens who read it but acknowledged that he had not interviewed any citizens about their reactions to the blog post.[62] The inspector further noted that he was not aware of any complaints to the police about the post and did not know if any individuals had actually read the post.[63] The inspector did not testify about Abdullah’s intent to cause fear or unrest or how the post might have caused fear or unrest, as alleged in the indictment, apart from his reference to “discomfort.”
The second witness testified about the March 23 post. As noted above, the prosecution alleged that the post, described as “abhorrent in nature”, was published with “intent to offend other people’s feelings”, pursuant to Section 233(1)(a) of the CMA. According to the witness, the post contained swear words (e.g., “puki mak,” loosely translated as “your mother’s vagina”) that were “derogatory and nasty in nature,” insulted the Prime Minister, and questioned the King’s decision in appointing him.[64] The witness did not testify about Abdullah’s intent to offend others – just about his personal reactions to reading the post. At the end of the witness’s testimony, the judge adjourned the trial to February 24.[65] The February 24 hearing was subsequently postponed to March 25.
Analysis
Applicable Law
This report draws on the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), both of which reflect international human rights standards and, in some cases, customary international law.[66] Article 19 of the UDHR, adopted by the UN General Assembly in 1948, provides for the right to freedom of expression. Article 19 of the ICCPR contains similar language.
Malaysia is not a party to the ICCPR.[67] Section 4(4) of the Human Rights Commission of Malaysia Act 1999 advises, however, that the government may rely on the UDHR “to the extent that it is not inconsistent with the Federal Constitution.”[68] As the provisions of the ICCPR are “materially similar to and based on the UDHR,”[69] this report utilizes interpretations of the ICCPR by the UN Human Rights Committee and UN Special Procedures to elaborate on relevant UDHR standards.[70]
Freedom of Expression
The prosecution of Dian Abdullah under Section 233(1)(a) of the CMA and Section 505(b) of the Penal Code violates her right to freedom of expression. Article 19 of the UDHR states: “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Article 19 of the ICCPR sets out a nearly identical standard: “Everyone shall have the right to freedom of expression; this right shall include 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.”
Criticism of Public Officials
The United Nations Human Rights Committee has asserted that under Article 19 of the ICCPR, “all forms of opinion [must be] protected,” including commentary on “public affairs, . . . discussion of human rights, [and] journalism.”[71] According to the Committee, “[t]he free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential.”[72] The Committee has thereby raised particular concerns about laws that restrict criticism of public officials:
[T]he mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties, albeit public figures may also benefit from the provisions of the Covenant. Moreover, all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition. Accordingly, the Committee expresses concern regarding laws on such matters as, lese majesty, desacato, disrespect for authority, disrespect for flags and symbols, defamation of the head of state and the protection of the honour of public officials . . . States parties should not prohibit criticism of institutions, such as the army or the administration. [73]
To this end, public officials “must tolerate a higher degree of scrutiny than ordinary individuals because of their public functions, and should not be granted a higher level of protection against defamatory statements in media.”[74]
In both of her blog posts, Abdullah criticized the King for appointing Prime Minister Muhyiddin in a “backdoor” transfer of power and Prime Minister Muhyiddin for his allegedly poor management of the COVID-19 pandemic and resultant suffering. The posts clearly address matters of public concern, amounting to commentary on “public affairs” and “discussion of human rights.”[75] As the Human Rights Committee has stated, “[a]ll public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition.”[76] Consistent with the Committee’s interpretation of Article 19, Abdullah’s speech merited heightened protection against state restriction.[77]
Permissible Restrictions on Freedom of Expression
According to the UN Human Rights Committee, any restrictions on protected speech must: i) be provided by law (the legality principle); ii) serve a legitimate objective; and iii) be necessary to achieve and proportionate to that objective.[78] The prosecution of Abdullah for her blog posts fails to meet these standards.
Legality
Under the legality prong, restrictions on freedom of expression must be provided by law, “including being ‘adopted by regular legal processes.’”[79] Further, laws cannot be overbroad.[80] As stated by the UN Human Rights Committee, legislation must be “formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly . . . [and] may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.”[81] The UN Special Rapporteur on the promotion and protection of the right to freedom of expression and opinion has similarly noted: “the restriction must be provided by laws that are precise, public and transparent; it must avoid providing authorities with unbounded discretion.”[82]
Due to their breadth, Section 505(b) of the Penal Code and Section 233(1)(a) of the CMA fail the legality test. Section 505(b) of the Penal Code, under which Abdullah was charged with respect to the March 21 post, prohibits making statements “with intent to cause, or which [are] likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility”.[83] The Code does not explain what constitutes “fear or alarm,” what type of offenses would undermine “the public tranquility,” or what constitutes “public tranquility.”[84]
Section 233(1)(a) of the CMA, under which Abdullah was charged with respect to the March 23 post, provides that an individual can be imprisoned or fined for using a network to transmit communications that are “obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person”.[85] The law neglects to define the terms “obscene,” “indecent,” “menacing,” or “offensive in character,”[86] affording “unfettered discretion for the restriction of freedom of expression on those charged with [the law’s] execution.”[87] In this case, the indictment charges Abdullah with “offend[ing] other people’s feelings,” which is not a term used in Section 233(1)(a) of the CMA but appears to represent the state’s interpretation of the provision, demonstrating the law’s vagueness and the absence of notice as to what type of conduct is prohibited. Like Section 505 of the Penal Code, this imprecision leaves wide space for interpretation.
Consequently, as a threshold matter, the prosecution of Abdullah under Section 505(b) of the Penal Code and Section 233(1)(a) of the CMA is inconsistent with the legality principle, thereby violating her right to freedom of expression.
Legitimacy
A restriction on freedom of expression is legitimate only if it is aimed at protecting those interests enumerated in Article 19(3) of the ICCPR: the rights or reputations of others, national security or public order, or public health or morals.[88]
In the present case, the State has invoked two different potential bases for restricting Abdullah’s speech: public order with respect to the March 21 post and protecting people’s feelings, with respect to the March 23 post.
The indictment for the March 21 post (the Section 505 charge) alleges that Abdullah’s statements were intended to “cause fear or unrest to the public or to any sections of the public” or might have had such effects.[89] This charge appears to be based on concerns about public order and/or national security, consistent with the permissible limitations outlined in Article 19(3). However, given recent patterns of harassment of dissenting voices as well as the lack of evidence provided by the prosecution that there was indeed a threat to public order or national security, it appears that the charge was instead based on Abdullah’s criticism of the government. Even assuming that the State’s objective in pursuing the Section 505 charge was legitimate, the restriction on Abdullah’s speech was neither necessary nor proportionate – the third prong of the test set forth by the UN Human Rights Committee. This will be discussed in the following section.
The indictment for the March 23 post (Section 233 charge) is based on the allegation that Abdullah’s communication was “abhorrent in nature” and “inten[ded] to offend other people’s feelings.”[90] As noted above, Article 19(3) sets forth an exhaustive list of legitimate justifications for restricting freedom of expression: “the rights or reputations of others; . . . the protection of national security or of public order (ordre public), or of public health or morals.” Protecting other people’s feelings against offensive content – Abdullah’s post was described as “derogatory and nasty” by the second prosecution witness – is not included in this list and is thus not a permissible basis for restricting speech.
Necessity and Proportionality
Even if a restriction meets the legality and legitimacy tests, it must comply with necessity and proportionality standards. “States may not merely assert necessity but must demonstrate it, in the adoption of restrictive legislation and the restriction of specific expression.”[91] This helps limit “unjustifiable or arbitrary invocation” of theoretically permissible justifications for restricting freedom of expression.[92]
Correspondingly, “[w]hen a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat . . . in particular by establishing a direct and immediate connection between the expression and the threat.”[93]
The necessity requirement overlaps with the proportionality requirement, as the latter means that a restriction must be the “least intrusive instrument amongst those which might achieve their protective function”.[94] States must thus meet a high threshold to institute criminal prosecutions. The UN Special Rapporteur on the promotion and protection of freedom of opinion and expression has further asserted that only speech that constitutes child pornography, incitement to terrorism, direct and public incitement to commit genocide, and advocacy for national, racial, or religious hatred should ever be criminalized.[95] According to the Special Rapporteur, “all other types of expression . . . should not be criminalized” given the “significant chilling effect” that occurs.[96]
In Reyes v. Chile, Chilean law enforcement removed banners marking the 40th anniversary of the 1973 military coup based on unsubstantiated assertions that the banners might be burned.[97] The UN Human Rights Committee noted that “a disruption of public order due to the burning of the work of art is merely speculative, inasmuch as the State party has provided no evidence of what specific information it had that gave rise to fears that the work might be burned because it contained human rights messages.”[98] In finding a violation of Article 19, the Committee emphasized: “the State party is obliged to demonstrate in specific and individualized fashion the precise nature of the threat and the necessity and proportionality of the specific actions taken, in particular by establishing a direct and immediate connection between the expression and the threat.”[99]
Similarly, in the case against Abdullah with respect to the Section 505(b) charge (as discussed above, the threat that the blog would “offend other people’s feelings” under Section 233 is not a legitimate basis for restricting speech), the State has not provided evidence that her criminal prosecution is either necessary or proportional. The indictment fails to “demonstrate in specific and individualized fashion the precise nature of the threat”[100] posed by Abdullah’s criticism of the King’s appointment of the Prime Minister and the Prime Minister’s handling of the COVID-19 pandemic, instead cryptically referring to potential “fear or unrest to the public or to any sections of the public”.[101] Indeed, it is difficult to envision how commentary on matters widely discussed in the public sphere would endanger public order or security.
The only evidence presented by the State thus far on the Section 505(b) charge has been “speculative,” paralleling the unsubstantiated assertions condemned by the UN Human Rights Committee in Reyes. As noted above, an inspector from the Police Cyber Response Centre testified that Abdullah’s post would cause “discomfort” to Malaysians who read it but admitted that he had not interviewed any citizens as to whether they reacted negatively to the blog post and that he was not aware of any complaints about the post or even whether anyone else had read her post. Notably, the inspector cited only the “discomfort” that might befall citizens as a result of the post – not any threat to public order or security that might warrant restrictions.
In light of the above, Malaysia has failed to establish that criminal prosecution under the Section 505(b) charge was necessary or proportional.
Further, even if Malaysia had presented concrete evidence of potential disorder engendered by either of Abdullah’s posts, criminal prosecution and potential imprisonment are not appropriate responses to speech offenses except in the gravest circumstances: child pornography, incitement to terrorism, direct and public incitement to commit genocide, and advocacy for national, racial, or religious hatred. It is clear that neither of Abdullah’s posts criticizing government action meet this threshold.
Conclusion
As described above, the Kuala Lumpur Criminal Sessions Court should acquit or dismiss the case against Dian Abdullah, or the prosecution should withdraw the charges. That charges were brought at all reflects the fact that the broad terms used in Section 505 of the Penal Code and Section 233 of the CMA are ripe for abuse. Abdullah’s case is part of a broader pattern in which the Malaysian authorities have employed such provisions to target those critical of the new government under Prime Minister Muhyiddin.
Going forward, prosecutors and judges should carefully review proposed charges under Section 505 and Section 233 to ensure that that the criminal conduct at issue is sufficiently grave to warrant a criminal prosecution and that there is a demonstrated and articulated link between the speech and the threat, in line with international standards on freedom of expression. Further, Malaysia must narrow these provisions to ensure that they comply with the right to freedom of expression, no longer afford the authorities unfettered discretion to criminalize protected speech, and provide citizens with sufficient notification of unlawful behavior.