Stop charging people for insults under ‘unconstitutional’ law, says media NGO

(AFP pic)

KUALA LUMPUR: The Centre for Independent Journalism said today Section 298A(1) of the Penal Code, which has been used to charge two people for allegedly insulting Prophet Muhammad, should be put on hold.

In a statement today, CIJ executive director Sonia Randhawa was perplexed at the use of section 298A(1) as the section had been declared unconstitutional in 1987 by the Supreme Court and again in 2014 by the Court of Appeal.

She said section 298A (1) had been declared void in all states, except for the Federal Territories where it was only applicable to Muslims.

As such, Sonia called on the government to impose a moratorium on the use of the law, with a view to repealing it in the future.

She said the section was overly broad in its scope, as noted by the Supreme Court which said that “the wording of Subsection (1) is so wide that it comprehends almost every act which can be construed as causing or likely to cause disharmony or disunity, or prejudicing the maintenance of harmony or unity on grounds of religion”.

Sonia said: “Any law that seeks to restrict the freedom of speech and expression, as enshrined in Article 10 of the constitution, must be for a legitimate ground – namely for the protection of national security, public order or public morality.

“Any such restriction must also be necessary and proportionate and cannot be so broad as to render the right illusory. The provisions of Section 298A(1) do not meet these tests.

“Furthermore, there is no necessity under Section 298A for there to be any intention to cause disharmony or prejudice the maintenance of harmony or unity, before an offence is committed.

“This sets an incredibly low bar and leaves the law open to abuse and the authorities liable to be accused of selective prosecution.”

However, Sonia acknowledged the existence and “seeming proliferation” of unkind, rude and insulting comments, often of a racial or religious nature, especially on the internet.

“Some of these comments, specifically those that threaten physical harm and incite violence, may require legislation to deal with, and we are of the view that there are other sections in the Penal Code that deal with such instances.”

Noting the government’s intention to introduce laws that dealt with racial and religious hatred, Sonia called for wide consultations before such a law was enacted to ensure that it “is drafted narrowly, and does not end up protecting the powerful, at the expense of the vulnerable”.

“We stress however that legislation is not the only way to combat offensive speech and that the government must adopt a holistic approach, including promoting safe spaces, for difficult conversations and displaying leadership and maturity in the manner in which it handles conversations about race and religion.”

Yesterday, a 68-year-old man claimed trial in the Sessions Court to two charges of insulting Prophet Muhammad through a cartoon image he posted on his Facebook page. A day earlier, a factory worker was charged in the Shah Alam Magistrate’s Court with insulting the prophet on Facebook the previous week.