WAY FORWARD IN REGULATING HATE SPEECH
There should be a specific legislation meant to address hate speech that operates within the permissible framework set out under the Federal Constitution
There needs to be more emphasis on the intellectual support structures necessary to educate a critical mass of Malaysians, young and old alike, who will be able to discuss the traditionally ‘sensitive’ matters in a civil manner, irrespective of whether it is in the public domain or private discourse.
DUE to the technological advancements today, Malaysia faces an ever changing threat landscape that could undermine Malaysia’s internal socio-political dynamics. Further complicating matters is that these technological advancements could be abused to fray the edges of Malaysia’s social fabric by actors within and beyond Malaysia’s sovereign borders, reflecting the borderless nature of the Internet.
Currently in Malaysia, there is no specific law addressing hate speech, but elements of it can be found under the Sedition Act 1948. Since its introduction in 1948 by the then British colonial government to control dissent against its administration, the Sedition Act has yet to be abolished in spite of its controversial application history.
Admittedly as it stands, the Attorney-General’s Chambers (AGC) could not possibly rule out invoking the Sedition Act in the absence of other legislations to address issues that could possibly lead to disharmony and disunity.
For instance in October last year, Communications and Multimedia Minister Gobind Singh Deo announced that the cabinet had agreed to a moratorium on the use of Sedition Act pending its repeal, but this moratorium was lifted a month later following the clashes surrounding a Hindu temple in Subang Jaya, and unsavoury comments made towards the Malaysian monarchy.
A more recent development is that a few weeks ago Prime Minister Tun Dr Mahathir Mohammed
announced that his government will introduce legislation to replace the Sedition Act. However, the exact details of the shape and form of this proposed legislation has yet to be disclosed.
Similarly, despite de facto Religious Affairs Minister Datuk Dr Mujahid Yusof Rawa’s statement in July last year on three new legislations to criminalise hate speech — the National Harmony and Reconciliation Commission Act, the Anti-Discrimination Act and the Religious and Racial Hatred Act — there has yet to be further developments.
Unfortunately the lack of development on those fronts are taking place against a backdrop of a perceived increase of comments made on social media, touching on race-related issues, following what has been reported in the news.
For instance, even news of a tragic accident involving two motorists has turned into a heated racial debate online. In response, authorities have warned of actions that could be taken, if there are no voluntary efforts to put an end to such emotive discourse online.
This being the case, how should the government move forward in regulating hate speech?
A few observations are in order.
First, the provisions under the Federal Constitution providing for free speech exclusively to Malaysians is clear. This however, as with any other freedoms, is not absolute and is subjected to the permissible derogations set out in Clauses (2), (3) and (4) of Article 10 of the supreme law of the land.
The said clauses essentially put restrictions on speech in the interest of national security, questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 of the Federal Constitution.
Second, it should be recommended that the proposed Bill replacing the Sedition Act should also include extraterritorial application.
Through this, even if the offence is committed by a Malaysian outside the country, that person may be dealt with as if the offence was committed in Malaysia. This is to better suit the nature of dissemination of information on the internet, whereby such threats could arise internally and externally.
Third, the proposed Bill should be precise in how it is to apply and the harm it is meant to remedy. There should no longer be room for a vaguely worded legislation that could lead to possible abuse. Above and beyond that, similar to how the Sedition Act was necessary in 1948 to deal with the communist insurgency, this proposed Bill, too, should be repealed as Malaysian society matures.
Finally and most importantly to achieve the point above, there needs to be more emphasis on the intellectual support structures necessary to educate a critical mass of Malaysians, young and old alike, who will be able to discuss the traditionally “sensitive” matters in a civil manner, irrespective of whether it is in the public domain or private discourse.
In conclusion, it is worth highlighting that the proposal to repeal the Sedition Act should be welcomed by all right thinking members of Malaysian society. Its potential for abuse far outstrips any remaining good that the legislation could serve. In its place, there should be a specific legislation meant to address hate speech that operates within the permissible framework set out under the Federal Constitution.
As it stands currently, the need for such a legislation is undeniable as national unity, the core to the strength and security of the country and common understanding towards each other, is paramount. After all, it is this very diversity that will secure the nation’s resilience to any threats from within or beyond Malaysia’s borders.