COVID-19: Upholding freedom of expression in Malaysia

The world is currently facing a global pandemic – more than 1.5 million individuals have been infected, and over 88,000 people succumbed to the deadly new COVID-19 virus since its first infections were detected in Wuhan, China, in December 2019. Governments have since taken aggressive action to stop the spread of the novel coronavirus, ranging from lockdowns, travel bans, closing schools and bringing in the military. 

As the COVID-19 pandemic spreads and more public spaces begin closing their doors, the question of protecting our freedom of expression and speech arises. It is clear that we must continue civil discourses and defend our ability to share and access information. We must also carry on tracking and monitoring developments that threaten to limit our free speech or infringe on our rights to express ourselves, share information, challenge, think, create and explore ideas.

Certain policies and statements adopted by the Malaysian government, prior and since the ongoing Movement Control Order (MCO) was initiated on 16 March 2020, are rather alarming. As such, we wish to recommend ways the government can ensure respect for our fundamental and constitutional rights in their response to the COVID-19 pandemic.

1. Uphold fundamental human rights

In the context of public health threats and public emergencies leading to threats to the life of people in Malaysia, certain restrictions may be applied that would have the impact of limiting freedom of movement, access to education, right to work and so on.

There is already evidence of specific sectors and communities in Malaysia experiencing disproportionate discrimination or are falling through the policy gaps – including at-risk migrant workers, asylum seekers and the Orang Asli – as they are not able to access affordable health care and relevant aid. The Malaysian Health Ministry has since clarified that COVID-19 testing at its facilities is free, even for foreigners, and that no migrant refugees have been arrested for violating the MCO in line with the government’s announcement that undocumented persons and those with expired documents – including refugees and asylum-seekers – would not be arrested when seeking medical treatment.

There are growing calls for governments around the world to continue upholding international human rights standards and to balance competing human rights protection. This is timely as everyone deserves the highest attainable standard of physical and mental health, as stipulated in the United Nations’ International Covenant on Economic, Social and Cultural Rights (ICESCR).

The Malaysian government must uphold international human rights standards in its preventive, protective and mitigative measures and guarantee access to all those who need it without any form of discrimination based on migrant status, race, disability, poverty levels, sexual orientation and gender identity, marital and family status, literacy and other grounds. 

2. Avoid abuse of power and end impunity 

Since the enforcement of the MCO, the world has seen the adoption of aggressive measures to stop the spread of the novel coronavirus, ranging from restricted movement, travel bans, closing of learning institutions and other non-essential services and bringing in the military, among others.  

However, despite the assurance by the Malaysian government that all appropriate measures, including that there would be no crowded lockups and health protocols would be observed, will be adopted to ensure that those violating the MCO will not be placed at further risk of infection, we are witnessing a large number of individuals being arrested, remanded and prosecuted for alleged breaches of the MCO. According to Defence Minister Ismail Sabri Yaakob, there have been 6,048 arrests as of April 6, with 212 charged in court. Continuing with these arrests places the individuals remanded at heightened risk as they may not be able to practice the necessary hygiene and social distancing in the course of their confinement.

There are also increasing numbers of alleged incidents of police abuse in the course of the MCO enforcement.

The government must:

• ensure that measures such as lockdowns, quarantines and travel bans:
  • have a legal basis;
  • comply with human rights norms;
  • are based on absolute necessity and are not arbitrary in nature, and;
  • are reviewed constantly and is proportionate in achieving the objective of stalling the spread of COVID-19;
• withdraw charges and halt all arrests related to alleged breaches of the MCO as they are counterproductive and a waste of public resources, while unchecked police powers are likely to cause unnecessary panic and fear of public authorities;
• adopt clear, consistent and transparent protocols for law enforcement agencies on its powers and actions during this pandemic;
• investigate and make public its findings on all allegations of police abuse in the course of MCO enforcement;
• ensure the right to legal representation is upheld at all times. All persons charged in court must be given the opportunity to access legal services, including referring those who are not able to afford one to available legal aid services such as  to the Legal Aid Department, Bar Council or the National Legal Aid Foundation, and;
• act with due diligence and end impunity related to abuse of power by public authorities. 

3. Be transparent and accurate

The people have the right to know the full extent of the threat posed by the pandemic and what steps are being taken by the Malaysian government to flatten the COVID-19 curve.

The Health Ministry has been exemplary in ensuring that the latest information and statistics are updated regularly on their various social media platforms, including the Crisis Preparedness and Response Centre (CPRC) portal. Nonetheless, we have seen a trend of conflicting information from various other government sources. One example is requiring face masks when going out in public, for instance, with the Health Ministry recommending its use only when a person manifests COVID-19 symptoms, but with other authorities like Kuala Lumpur City Hall (DBKL) saying otherwise (which it has since doubled back on).

The Communications and Multimedia Ministry, on the other hand, has published a list of health tips to fight COVID-19 that it dubbed as fake news, including one on drinking water as a means to “killing” the virus. This was a good step in tackling misinformation online, yet, this was what Health Minister Dr Adham Baba had stated on live television recently. With the Health Ministry distancing itself from this view, it only creates further confusion among the masses.

The public relies heavily on directives and statements from public officials; thus, inconsistent messages are highly likely to cause panic or dilute the impact of information on appropriate public health measures, including on hygiene and social distancing.

Information must also be continuous and timely. There are reports that the COVID-19 global pandemic is affecting internet speeds, even in Malaysia. According to Ookla, the company behind Speedtest, a sharp decrease in the average download speed for both mobile and fixed broadband was observed from March 16 to March 22, when the MCO was imposed. Poor internet speeds will impact the accessibility of information, especially the timeliness of such information.

The government, in being transparent, must ensure that:

• information provided by the government to the public on COVID-19 must be accurate, timely and consistent with evidence-based approaches – as well as with other government agencies;
• information is made available, accessible and is transmitted in all local languages and dialects in Peninsular and East Malaysia, and is adapted for people with specific needs, including those with limited or no ability to read and persons with visual or hearing impairment. Sign language interpreters should be present for all live telecasts by government officials, as is the case for announcements by the prime minister;
• there is no cover-up in order to downplay the extent of the threat by hiding missteps or mistakes on the Malaysian government’s part. The only way to ensure this is to guarantee freedom of expression and uphold the right to information by repealing the Official Secrets Act (1972) or OSA;
• access to social media platforms, the internet and global news sites must not be restricted or blocked, and;
• ensure that the broadest possible internet service is made accessible and free to all people as part of public service, given the heavy reliance on the use of government social media platforms to disseminate information, and in consideration of communities with no internet and essentially public information, as was announced by the prime minister recently. There must also be a guarantee that there will be no internet or power shutdowns.

4. Accountability of social media platforms

We have seen how misinformation on various social media platforms and unchecked doxing and trolling is likely to place the public, including Malaysian civil society activists, at risk or face potential reprisals.

The government must employ new methods to manage social media platforms to manage the spread of misinformation and to counter cybertroopers. The State must adopt rules and policies about reliable and verifiable information allowed in real-time and as the pandemic spreads. This would entail holding platforms like Facebook, Twitter and Instagram accountable for information being shared on their platform as tech companies play a critical role in facilitating access to information.

Social media platforms also have a key role to play and must:

• be highly vigilant and more proactive in their actions, particularly in relation to misinformation, hate speeches, threats of violence and other abusive contents which potentially compounds and exacerbates the crisis;
• further develop, be transparent and address the defects in their algorithm-based systems and processes used to identify and remove content that could possibly undermine freedom of expression. They will benefit by engaging with civil society organisations and media actors to understand the local context and challenges, and;
• ensure that clear and accessible mechanisms, including timely and responsive appeal processes, must be in place to ensure consistent procedures are there to address content removal and on suspension or termination of users’ accounts.

5. Promote public participation and do not censor

Prime Minister Muhyiddin Yassin announced the Prihatin Rakyat Economic Stimulus Package on 27 March 2020, which, among others, provides cash assistance in the middle 40 income group (M40) and those under the Bantuan Sara Hidup (BSH) programme, totalling RM13.2 billion. RM25 million has been allocated to provide food assistance, healthcare and shelter to the elderly and children in shelters, the disabled, the homeless and Orang Asal. Yet details about this are scarce.

The MCO and economic stimulus package, among others, has not included the perspectives, voices and experiences of women and other marginalised and vulnerable groups in the policy spaces, health service and aid provisions.

Uninformed and non-consultative decisions, as announced recently by Senior Minister (Security Cluster) Ismail Sabri Yaakob on not allowing non-government organisations (NGOs) to send aid directly to their vulnerable recipients, creates a barrier and delay for all the people depending on said aid. It would be more prudent and efficient for the government to coordinate with the relevant NGOs and ensure that all social distancing and other health measures are adopted accordingly in the delivery of their services.

The government must:

• be transparent on the sources of the funds;
• provide clarity on how these funds and relief measures are to be managed;
• ensure there are effective mechanisms established to ensure that all peoples have immediate and non-discriminatory access to these social and economic support measures;
• adopt an intersectional approach in all measures undertaken to address the different needs and impacts on the various sectors of society, and;
• allow and promote the right to participate in decision making Civil society organisations (CSO) spaces should not be restricted. Medical professionals, financial and social experts, independent CSOs and clusters of directly affected people must be consulted by the government in any policy-making processes and service implementation.

6. Manage misinformation and “fake news”

It has been reported that at least 114 investigation papers have been issued so far, including on charges based on Section 505(b) of the Penal Code (which refers to the making of statements, rumours or reports with intent to cause or which is likely to cause, fear or alarm to the public whereby any person may be induced to commit an offence against the State or against public tranquillity) and Section 233 of the Communications and Multimedia Act (CMA) (which criminalises the use of network facilities or network services by a person to transmit any communication that is deemed to be “obscene, indecent, false, menacing or offensive in character”). 

In a number of cases reported by the media several individuals charged had no legal representation at their court hearing.

Any legal remedies should be the last resort and only one of the many tools that can be employed to counter disinformation and misleading statements. A disproportionate response in the criminalisation of expression is counter-productive as it could shut down public discourse that is crucial in dealing with this public health crisis.

The government must continue to promote democracy and allow dissenting voices to be heard and accessed. As such, the government must undertake a holistic and proportionate response to misinformation or “fake news”, which would include: 

• promoting informed debates as fundamental to informed decision making, and, as such, critical views must not be censored or criminalised – especially in times like this, and with a new government in power;
• focusing on education and dissemination of public information countering the alleged “fake news” as done by the Communication and Multimedia Ministry and not on prosecution;
• having efficient and broad channels of information from the government and media, accessible and reliable means for the public to verify information and use of reporting facilities within social media applications for misinformation to be removed, and;
• moving towards enacting a right to information law and repealing or amending repressive laws such as the Printing Presses and Publications Act, the OSA, the Sedition Act, amending the Section 233 of the CMA so that it is not utilised arbitrarily to stifle all manner of speech. 

Politicians must also refrain from capitalising on these alleged “fake news” incidents to call for a re-enactment of the Anti Fake News Act which was repealed in 2019.

7. Protect privacy

Increased surveillance and privacy intrusions are unavoidable during this time of crisis management. The measures proposed by the Malaysian government, if unchecked, may, however, lead to the government adopting regulations which may continue unconstrained post the crisis. 

The government is already using the Armed Forces to assist the police in implementing the MCO. The presence of drones used by the Malaysian Armed Forces during the MCO is alarming. The purpose of the use of the drones was reported as being to enable a more efficient patrol, yet the exact number of drones being used were not initially disclosed – a rough estimate at the beginning of the MCO was “more than 10”, but this has since been expanded to 92. It is also a concern that the drones are being used at night as well, despite it being announced earlier that they would be used only during the day.

It has been reported that the Malaysian government plans to track movements of individuals through an app to curb the spread of COVID-19. Further, it has been stated that those entering Sarawak will wear QR-coded wristbands as part of a digital surveillance solution by the state government. The location of wearers is said to better enable hotspots as part of the state’s strategy to isolate the spread of COVID-19.

Data privacy is another concern that must be prioritised by all during this time. Patient confidentiality should be maintained by media organizations who report on COVID-19 cases, and must refrain from identifying patients so as to avoid stigmatisation or other forms of reprisals. This was not done for Patient 26, which Free Malaysia Today (FMT) had confirmed to be UDA Holdings chairman Hisham Hamdan. While Hisham later confirmed that he was Patient 26 in a letter, it was irresponsible for media outlets to have revealed his identity prior to him outing himself.

All measures adopted by the government must be temporary in nature and must be rolled back once the pandemic is contained in Malaysia. Specifically:

• privacy intrusions must be necessary and proportionate and all necessary due processes adopted and adhered to in the release of information related to positive COVID-19 cases;
• the use of the Armed Forces to assist the police in implementing the MCO must be reassessed and only be continued if deemed absolutely necessary; otherwise, the resources should be put to other uses, including transportation of essential medical services;
• while the use of drones remains pivotal for journalists and those working in the media, the Malaysian government must consistently report to the public when they are using drones – if they will continue using it during the new MCO extension, for example – and clarify if these drones are weaponized, and;
• the government must ensure the consent of patients is sought first before their movement history is made public in the app. No identifying details such as their name should be revealed. The government should also act to delete this app once the pandemic is over and ensure that the data available on the app is no longer available to the masses. Besides that, the government must show that such privacy-invading measures are effective, science-based, necessary and proportionate.

8. Root out bias, hate speech and gender-based discrimination

The government must better manage bias, hate speech and xenophobia on the basis of race and religion, royalty, gender and sexual orientation, amongst others. Discrimination and stigma will increase if not unchecked, and in situations such as this, it will increase with fear-mongering.

The government’s efforts so far have been rather gender-blind and have failed to address the disproportionate impact on women. In implementing the MCO and economic stimulus package the government has failed to take into consideration the gendered and disproportionate experiences of women frontline workers (including reproductive rights and mental health issues), the specific needs for social protection and the critical role of women in the care economy, informal sectors, women-headed households, women with no employment or whose sustainable livelihood have been impacted by the government’s measures, amongst others.

It is all the more shocking that at the onset of the MCO, the immediate response by the Ministry of Women, Family and Community Development (MWFCD) was to suspend the Talian Kasih Hotline, which only got reactivated due to the outrage from the women’s groups and the general public. It clearly demonstrated the fact that the government has failed to recognise that the restrictions on movement and being confined to the home is likely to raise the possibilities of increased abuse in domestic violence situations.

The MWFCD subsequently aggravated the situation by uploading posters on its social media platforms, resorting to misogynistic and infantile advice for women working from home – among others – to wear make-up and dress up at home, to not nag, to speak in a cartoon character’s (Doraemon) voice followed by giggling, all in the name of cajoling the husband to help with household chores and preserving family harmony.

It has also been alleged that individuals are being harassed by law enforcement officials on the basis of their sexual orientation and gender identity. Reports allege that police officers have asked individuals for their phones, checked their apps and chat history, read personal messages and threatened to arrest them. These clearly can be seen as a direct threat to freedom of expression, privacy and security of lesbian, gay, bisexual, transgender and queer (LGBTQ) persons. The allegations raise additional concerns when the online post originally reporting it was trolled and accused of misinformation and defamation against public authorities, thus creating barriers for those who had allegedly experienced said discrimination from seeking any legal recourse due to fear of further reprisals or stigmatisation. 

LGBTQ people have also been blamed as one of the causes of COVID-19. In a post shared via Facebook, Twitter, and WhatsApp, it is claimed that COVID-19 was the result of divine punishment for the rise in transgender people, among others. If left unchecked, it is highly possible that discrimination against LGBTQ persons in Malaysia may further be compounded in times of this crisis. 

The following actions must immediately be taken by the government:

• Allow for gendered analysis and concerted consultation with women’s human rights organisations, including the LGBTQ organisations in the design and implementation of the MCO, the economic stimulus package and other public policies and measures;
• Enhance and ensure hotlines and services for all victims of domestic violence remain open, including the need for all law enforcement and service providers to be responsive, sensitised and timely in their responses;
• Stop perpetuating discriminatory and harmful gender roles and stereotypes through any public service announcements and ensure that all measures are adopted to promote equal opportunities and gender equality;
• Ensure that all measures are in place to guarantee there are no barriers or stigmatisation in accessing healthcare, economic stimulus package, and access to due legal process and justice, among others;
• Address the use of derogatory and racist language and threats against COVID-19 clusters of persons who tested positive, such as the Masjid Seri Jamek tabligh cluster, and those who attended the Theppa Thirunal (floating chariot festival) at Singamugha Kaliamman Temple in Penang, held a few days after the tabligh gathering, and;
• Increase awareness and public education on the consequences of hate speech.

9. Strengthen media freedom

Given the high volume of research and information flow on COVID-19, media industries and communications channels become more critical than ever in promoting adaptive responses that foster appropriate approaches to health and hygiene practices and adherence to preventive and mitigating measures. It should be noted that the scope of media coverage sets the agenda for public discourse and thus there is a high expectation that the media would be fact-based and responsible in their reporting. Journalists must avoid using clickbait headlines and fear-inducing language. It is encouraging that key media outlets have published practical information and services available for vulnerable and marginalised groups, including COVID-19 tracking platforms, essential telephone numbers for healthcare and shelter services and hygiene practices in multiple languages and using infographics.

In recent weeks, we have seen an instance where Malay Mail online was accused of allegedly misreporting, an error which has since been corrected. An article by FMT, on the other hand, was initially published accusing a civil society couple of not revealing the fact that they tested positive for COVID-19 and reportedly hospitalised, according to an anonymous NGO leader. This was followed by allegations that FMT had failed to fact check and were biased in their article.

Journalists and videographers also face exacerbated risks of infection due to the nature of their jobs. Non-essential public relations exercises, as carried out by the health minister, such as a work tour with media to the COVID-19 Low-Risk Treatment and Quarantine Centre at MAEPS, Serdang, continues to place media at risk.

In light of the above, the government must ensure that:

• media freedom be promoted and upheld by the government. Journalists should be empowered to publish freely, including criticising the handling of the pandemic and exposing incidences to keep the public fully informed and hold the state accountable;
• safe and enabling work conditions for journalists – including addressing all physical threats against them – should also be in place;
• no threats of media licenses being revoked should be imposed by the State. Media outlets must be allowed to operate without fear of censorship or accused of any bias, including political bias, and;
• necessary health safety measures must be adhered to by the media in course of field reporting, including adopting appropriate social distancing, using protective gear such as masks and gloves whenever necessary and adopting sanitising measures and disinfecting their equipment regularly.

Media entities should also be held accountable and have a key role to play in refraining from perpetuating misinformation through responsible and ethical reporting; and attempt to counter alleged misinformation by bringing in experts and reporting on updates by public authorities in a timely and analytical manner which would counter the myths and misleading facts on cures, unverified spread of the virus and alleged state measures.   

9 April 2020