As Malaysians celebrate or observe others celebrating Chinese New Year, we are again reminded how we are universally enriched by living in a peaceful, multi-cultural country where learning about other religions, other ceremonies and cultures, other ways of seeing the world comes as almost second nature to many of us. Unfortunately, proximity can breed either respect or fear, and in our history our legislation has been guided by fear, rather than hope or respect. The elections of May 2018 promised to change that emphasis, and this article explores what that might mean.
From the first murmuring of nationalism under the British, free speech has been treated with fear and misgivings. Our legislative framework – the Printing Presses and Publications Act, the Sedition Act, the Official Secrets Act – were designed to contain and control conversations, rather than to facilitate debate and discussion. Yet, with more than 50 years of independence under our belt, and a peaceful change in government, it is past time to implement the promises made by Pakatan Harapan in their election manifesto, and look at what respect for the fundamental human right of freedom of expression means.
Yet, it’s important to recognise there isn’t a dichotomy between harmony and freedom of expression. Serious debate and discussion is needed to underpin harmonious relations: Serious violence, such as genocide, takes place when freedom of expression is repressed, when the only voices are officially sanctioned. An extreme example is the Rwandan genocide, where the privately-owned radio station Radio de Milles Collines goaded people to slaughter their neighbours. Yet the station was owned by the President’s family, it was part of the elite power circle. Voices of peace were muted, for deadly political ends, in part due to the lack of diversity and freedom in the media.
Debate and discussion are vital components of ensuring peace and harmony. Without debate, small problems fester, and become large problems. Think of your annoying neighbour with whom you have a small, but ongoing issue. If you can talk to them, politely, and they listen, you can find a solution. But if you don’t speak out, resentment builds, and polite conversation, and with it a resolution, becomes almost impossible.
It does not mean the right to say anything, any where and at any time, not if it would impinge upon other fundamental liberties of any other individual or community. In practice, what that means is that any speech that could cause serious harm to a person, their freedom or their livelihood lies outside the realm of freedom of expression. The right is not absolute.
In Malaysia, however, our regime has not actually defined these exemptions. Freedom of expression, guaranteed by Article 10 of our Constitution, has been curtailed because people might get a little upset, because they fear that something might insult them. Perhaps the epitome of this was the banning of the film Lelaki Komunis Terakhir. Despite the police saying that the film was safe (it was apparently so boring nobody would bother watching it anyway), a number of people who had never watched the movie decided that it would offend them. It might offend them. And so the movie was banned. This standard makes the idea of freedom of expression being protected, as per our Constitution, laughable.
Not just that. It is impossible to know if you are breaking the law or not – the laws are badly written, so that in theory any speech could be criminalised. The Sedition Act has been used primarily against political opponents, as many now in government know, because what is seditious is worded so broadly that supporting a football team (causing upset to the opposing team) could in theory be considered seditious. In fact, not supporting a football team could also be seditious, because the act covers acts that you do, and acts that you do NOT do. The Sedition Act is a bad law because you cannot safeguard yourself from breaking the law. Compare sedition with theft. You can stop yourself from being a thief. You just don’t steal. There is a clear, easily definable line. Forgetting to pay is still stealing, though it may be treated more leniently. The law is clear. In contrast, sedition is a nebulous crime – you cannot be sure you have not said or done something seditious. In fact, if someone says you have, you probably have – but the judge gets to decide whether you will face jail or not. That makes it a badly worded law allowing discretionary prosecutions.
To both protect our harmony and our fundamental freedom of expression, we need to first repeal the laws that impinge on freedom of expression, but we also need to articulate better when exemptions to freedom of expression can apply, for example through a Freedom of Expression Act. This Act would articulate, or make clear, what Article 10 of our Constitution means, what it covers and what are legitimate exceptions to the freedom. Thus, for example, inciting hatred or violence could be articulated clearly in such an act; likewise defamation, threats to national security and so on. The Act should also spell out what the limits to these exceptions are.
Freedom of speech can be intimidating, especially when we’ve persistently been told that it is dangerous and that we lack the maturity to deal with it. But the alternatives, especially in the face of the significant challenges this century is likely to bring, are going to be far worse. We urgently need to build an institutional framework that allows genuine harmony to flourish, rather than one that puts a lid on discussion, allowing the pressure instead to build up.
