The proposed laws to replace the Sedition Act must be given clear direction.
There has been extensive public debate in recent weeks on the racial Harmony Bills proposed by the National Unity Consultative Council (NUCC) in early June.
The Racial and Religious Hate Crimes Bill, the National Harmony and Reconciliation Bill, and the National Harmony and Reconciliation Commission Bill have been proposed to replace the Sedition Act, an outdated law with an “excessively vague” definition of sedition.
This law has been systematically used over the years to silence dissent and clamp down on the rights to free opinion and expression in Malaysia.
I welcome the fact that the NUCC working committee on law and policy is calling for a transparent and open consultation process to receive input and feedback on the proposed bills.
On the Religious Hate Crimes Bill specifically, it’s extremely important that the NUCC also take into account existing international human rights laws and standards as they formulate the bill.
In particular, the 2012 Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
The plan of action, developed by international legal experts, highlights how anti-incitement laws in itself are inadequate to deal with “hate speech” and requires with it an independent judicial structure as well as the adoption of proper state policies.
Firstly, states are obliged to “prohibit” expression that amounts to “incitement” to discrimination, hostility or violence under Article 20, paragraph 2 of the International Covenant on Civil and Political Rights.
However, the legal prohibition of incitement to hatred in many domestic legal frameworks worldwide uses variable terminology and can be broad and vague, opening the door for the arbitrary application of these laws. This could lead to a misinterpretation of the law limiting freedom of expression.
Therefore those involved in formulating the bill must ensure the robust definitions of key terms such as hatred, discrimination, violence and hostility, among others.
In this regard, we can draw from the guidance and definitions provided in the Camden Principles. These principles were prepared by Article 19 on the basis of discussions involving experts in international human rights laws on freedom of expression and equality issues and represent a progressive interpretation of international law and standards.
Pursuant to Principle 12 of the Camden Principles, the law should make it clear, either explicitly or through authoritative interpretation, that terms “hatred” and “hostility” refer to intense and irrational emotions of opprobrium, enmity and detestation towards the target group.
The term “advocacy” is to be understood as requiring an intention to promote hatred publicly towards the target group; and the term “incitement” refers to statements about national, racial or religious groups which create an imminent risk of discrimination, hostility or violence against persons belonging to those groups.
To complement the law, the NUCC should also call on the Malaysian government to adopt comprehensive equality laws as well as to ratify the International Covenant on Civil and Political Rights and the Convention on the Elimination of Racial Discrimination.
Secondly, what is also required is an independent judiciary with judges acting in an impartial and objective manner when assessing any individual prosecuted under this law.
If there is a lack of trust and public confidence in the judiciary including if the current judiciary is not seen to protect racial and religious minorities, the legislation itself would be meaningless.
We would require judges who are well versed with international human rights laws and standards and able to differentiate between legitimate acts of freedom of expression and incitement to hatred.
In this regard, the Rabat Plan of Action proposes a six-part threshold test for expressions considered as criminal offences:
Context – Context is of great importance when assessing if particular statements are likely to incite discrimination, hostility or violence against the target group;
Speaker – The speaker’s position or status in society should be considered, especially the individual’s standing in the context of the audience to whom the speech is directed;
Intent – Article 20 of the International Covenant on Civil and Political Rights anticipates intent. This article provides for “advocacy” or “incitement” rather than just distribution or circulation of material;
Content and form – The content of the speech should be the focus of the court’s deliberation to a degree in which it was provocative as well as the form, style and nature of arguments;
Extent of the speech act – This includes elements such as the reach of the speech act, its public nature, its magnitude and size of audience, its means of dissemination and whether the audience had the means to act on the incitement;
Likelihood, including imminence – While the action advocated by the incitement speech does have to be committed for the said speech to amount to a crime, the courts must decide if there was a reasonable probability the speech would succeed in inciting actual action against the target group.
Plurality of policies
Finally, while a legal response is important, legislation itself must be part of an array of state policies to respond to the challenge of hate speech.
According to the Rabat Plan of Action, legislation should be complemented by initiatives towards a plurality of policies and practices that nurture tolerance and understanding.
The government should set up equality bodies or enhance the powers of the national human rights commission (Suhakam) to receive and act on complaints related to discrimination and incitement to hatred.
Politicians and religious leaders should also refrain from using messages of intolerance and speak out against instances of hate speech.
The government must also train and sensitise the police, other law enforcement agents and those involved in the administration of justice on issues concerning the prohibition of incitement to hatred.
Teachers should be trained on human rights values and principles and introduce intercultural understanding as part of the school curriculum for pupils of all ages.
The government must also ensure that minorities enjoy their fundamental rights and freedoms and are allowed to express a range of views and debate issues of race and religion.
If these three elements of law, jurisprudence and policy are not taken into account in our response to “hate crimes”, we will see a return to the arbitrary and selective use of the law against individuals very much similar to the Sedition Act that it has been drafted to replace.