There is serious concern on the impact of hate speech on ethnic relations in Malaysia. Hate speech is now expressed openly in the public sphere especially through social media. There is anxiety that this is a time bomb waiting to explode if not managed well.

There are many examples in Malaysia of hate speech, of which three are discussed here. The most recent highly publicised case (July 2013) was the photograph on the Facebook of Alvin Tan Jye Yee and his partner Vivian Lee May Ling which showed them eating (apparently) pork rib soup, with the caption “fragrant, delicious and appetising,” in Malay during the holy month of Ramadhan (the fasting month) that upset Muslims (Islam does not permit Muslims to eat pork). The photo also carried the logo indicating that the product was halal, or permitted to be consumed by Muslims in Malaysia. The two pleaded not guilty to three charges of violating the Sedition Act, the Film Censorship Act and the Penal Code by ‘…committing acts likely to cause feeling of enmity on grounds of religion.’ The couple has since apologised for the posting, saying it was meant to be humorous. Their case is ongoing.

In another case, this time involving the press, the Malay daily, Utusan Malaysia, carried a front-page article on 7 May 2011, headlined “Kristian agama rasmi?” (Christianity the official religion?), claiming that the opposition Democratic Action Party (DAP) was conspiring with Christian leaders to take over Putrajaya and abolish Islam as the religion of the federation. The report, based entirely on unsubstantiated blog postings from “Bigdog” and “Marahku”, perceived to be pro-United Malays National Organisation (UMNO) bloggers, argued that the DAP should be charged with sedition for allegedly trying to change the country’s laws to project for a future Christian prime minister. In response to the allegation, Ibrahim Ali, the president of PERKASA – a right wing group – called for a “crusade” against Christians who challenge ‘Islam’s position’ in Malaysia. This event was naturally disturbing. Hishammuddin Hussein, then Home Minister, issued a warning letter to the Utusan Malaysia over of this report.

In an earlier case, the Hindu Rights Action Force (HINDRAF), a coalition of 30 Hindu non-governmental organisations (NGOs) committed to the preservation of the Hindu community’s rights and heritage, had organised a rally – that turned unruly – on 25 November 2007 to submit a petition at the British High Commission. The group has led agitations against what they see as an “unofficial policy of temple demolition” and concerns about the steady encroachment of shariah-based law. They also accused the UMNO-led government of systematically marginalising the ethnic Indian community and running a policy of ethnic cleansing. According to Chandra Muzaffar, the statement about ethnic cleansing is dangerous, utterly reckless and a scurrilous allegation because there is no evidence of ethnic cleansing in Malaysia.

The three cases above were acts by people coming from the three dominant ethnic groups in Malaysia: the Malays, the Chinese and the Indians. These cases are clear example of hate speech which have hurt and angered many Malaysians especially for those who want to see good relations between the different ethnic groups in Malaysia.

So what is hate speech?

Hate speech, according to D. Rud and N. Sexton (1999), can be defined as insults and characterisations that are directed against an individual’s or group’s race, religion, ethnic origin, or gender, which may incite violence, hatred or discrimination. In the United States (US), hate speech is a broad term that may include a great variety of expression, but according to Nelson v. Streeter (1994), it generally refers to words or symbols that are “offensive, hurtful, and wounding” and are directed at racial or ethnic characteristics, gender, religious affiliation, or sexual preference. The US courts usually consider hate speech part of the “rough and tumble” of discourse that is part of a democratic and open society. On the contrary, some contend that hate speech is deliberately hurtful, morally similar to physical aggression, and should not be permitted in civilised societies. Hate speech is a form of speech that goes to the core issues in society, for example, racism, homophobia, and misogyny. In many countries (e.g. Canada, France, the Netherlands, and Germany) including Malaysia, the constitution forbids hate speech against any ethnic, race, gender and religion.

Malaysians do enjoy the right to freedom of speech but with certain limitation particularly in curbing the hate speech. Freedom of speech is formally assured by Part II of the Federal Constitution under Article 10(1) entitled “Freedom of Speech, Assembly and Association”. Article 10 and other laws such as the Sedition Act and Penal Code however have provisions that seek to limit and punish those who are found to be exceeding their right of expression by expressing controversial views on issues such as the special rights of the Malays and other indigenous people (Bumiputera), Islam as national religion, the rights of immigrant ethnic (especially Chinese and Indians) to citizenship, the position of the King, and the status of the Malay language as the national language and a host of other issues that could potentially be sensitive in the context of the fragile ethnic relations in the country. It is argued that Malaysia as a multi-ethnic society, liable to ethnic conflict, requires such laws to prohibit the propagation of ethnic prejudice and religious bigotry. The constitution also prohibits speech that advocates the forcible overthrow of the government. Political speech, it is argued, must be circumscribed by the need for national stability and ethnic harmony.

What about cases where hate speech is condoned by the state either indirectly or unintentionally?

As reported by a news online portal, The Malaysian Insider, more recently in a Friday sermon entitled “Virus Shia” on 29 November 2013, the Department of Islamic Development Malaysia (JAKIM) declared that Shia Muslims encourages beliefs such as: encouraging sodomy, celebrating the Karbala on the 10th of Muharam (the first month in the Muslim calendar), defending the practice of contract marriage or mutaah, questioning the sanctity of the Sunni branch of Islam and declaring themselves the true Sunni. These might upset many Shia Muslims and is perceived as promoting hatred against the Shia community in Malaysia and abroad. According to JAKIM, the Fatwa Council in 1996 had declared that Shia was forbidden or haram in Malaysia and made it compulsory for Malaysian Muslims to only follow the teachings, customs and beliefs of the Sunni branch of Islam.

JAKIM was legally right in banning the spread of Shia among Muslims in Malaysia which is consistent with the Federal Constitution. As mentioned in Article 11(4), the right to propagate any religious doctrine or belief among persons professing the religion of Islam may be controlled or restricted by State law and Federal law in respect of Federal Territories, Kuala Lumpur and Labuan. Mohamed Salleh Abas, a former Lord President of Malaysia, said to this limitation as following:

This limitation is logical as it is necessary consequence that follows naturally from the fact that Islam is the religion of the Federation. Muslims in this country belong to the Sunni Sect which recognises only the teachings of four specified schools of thought and regards others school of thought as being contrary to true Islamic religion. It is with a view to confining the practice of Islamic religion in this country within the Sunni Sect that State Legislative Assemblies and Parliament as respects the Federal Territory are empowered to pass laws to protect Muslims from being exposed to heretical religious doctrines, be they of Islamic or non-Islamic origin and irrespective of whether the propagator are Muslim or non-Muslim.

This limitation would affect both Muslims and non-Muslims. State law may prohibit attempt by not only non-Muslims to convert Muslims to other religion, but also to restrict deviation from Islam, Sunni Sect. This provision however does not protect anyone to spread hatred against the Shia openly even though many Malaysians disagree with the Shia teachings and do not embrace the Shia sect. Perhaps, the state worries about the spread of Shia in Malaysia, besides responds to the conflict between the Sunni and Shia in the Middle East. The more academic discussions on the Sunni and Shia sects should be encouraged to give people more understandings about the Shia and at the same time strengthen the Sunni sect beliefs among Muslims in Malaysia. Furthermore, on 3 December 2013 during his speech at the UMNO general assembly, Deputy Prime Minister Muhyiddin Yassin urged the Federal Constitution to be revised to include a provision in protecting the Sunni sect in Malaysia.

Have Malaysian laws struck the right balance between freedom of speech, the national security and public order?

In the US, there is no restrictions on hate speech. However, in past decades, there have been movements to have hate speech removed from its place at the core of protected speech, arguing that it is dangerous and damages individuals and society. The argument is that hate speech may be legitimately restricted because it is not essential to democracy and indeed, it often undermines the equal respect that is essential to democracy as well as causing other social harms. American scholar, Mari Matsuda argues that it encourages feelings of inferiority, destroys self-esteem as well as personal security and emotion. Thus, several minority and female writers argue that the US approach to hate speech is inadequate and that it should be subject to criminal or civil penalties. Richard Delgado, another American scholar, argues that racial or ethnic insults used in a face-to-face situation should be grounds for civil lawsuit.

The Malaysian Human Rights Commission (SUHAKAM: Suruhanjaya Hak Asasi Manusia Malaysia) analyses the equilibrium between national security and human rights including freedom of speech in Malaysia in its publication entitled Review of the Internal Security Act 160 (2003). SUHAKAM does not deny that laws are useful in accomplishing national security. Human rights principles have flexibility that allow for limitations on some individual rights and freedoms in the preservation of national security and public order. However, there are caveats especially in resorting to powers or measures that lead to the limitation of rights, certain stringent conditions must apply: First, the limitations must be imposed solely for the purpose of protecting a legitimate aim that is prescribed by international human rights principles. Second, the limitation must be absolutely necessary for the protection of the legitimate aim. Third, the limitation must be proportional to the protection of the legitimate aim. However, there are some rights and freedoms that cannot be limited such as freedom from torture or other cruel, inhuman or degrading treatment or punishment. Fourth, there must be adequate safeguards so as to avoid any abuse of powers. These conditions must be adhered to at all times as they facilitate a fair balance between two very important but, at times, competing public interests – legitimate national security concerns, on the one hand, and fundamental freedoms such as free speech, on the other.

SUHAKAM argues that the government is given wide latitude to make judgements when interpreting the legitimate aim and when applying the principles of necessity and proportionality in the determination of the scope of the limitation of the rights of an individual. The aim of this wide latitude is to enable the government to adapt international human rights standards in accordance with the local environment. Such judgements, however, must not be made arbitrarily according to SUHAKAM. Further, it is reasonable to say that in a democracy, the government cannot possibly have the sole right of interpretation in the application of these principles. Instead, the right of interpretation of these principles by the judiciary and other responsible institutions or citizens of the nation must also be respected including ethnic and religious groups. By considering the laws and practices, and the four human rights principles on the limitation of the rights of a person as declared by SUHAKAM, it is clear in Malaysia that the balance between national security and human rights, including freedom of speech, is disproportionately weighted in favour of national security. Therefore, Malaysia needs a balanced approach to consolidate these two essential matters.

Furthermore, there was a new development with regard to freedom of speech in Malaysia. In the University Kebangsaan Malaysia 4 (UKM 4) case on 1 November 2011, the Court of Appeal ruled that Section 15(5) of the Universities and University Colleges Act (UUCA) – which prohibits students from getting involved in politics – is unconstitutional and violates freedom of speech. Judge Mohd Hishamuddin Mohd Yunus, in his 21-page written judgment, argues that the restriction on freedom of speech is permitted by Clause (2)(a) of Article 10 in the interest of “public order or morality”. Judge Mohd Hishamuddin explains that he fails to see in what manner that section 15(5)(a) of the UUCA relates to public order or public morality and found the restriction to be reasonable. He further argues that clearly the provision is not only counter-productive but repressive in nature. With this preceding case, the government has to amend the UUCA and accept the principle of reasonable regulation as part of Article 10 for future legislation and legal proceedings. However, it is without doubt that it is reasonable for the government to restrict hate speech for the reasons of public order and national security.

In the final analysis, hate speech is unacceptable and should not be part of free speech practised by anybody and any institution, either government or non-government. Based on the Malaysia’s cases and laws, and the US too, there are concerns that hate speech could be detrimental to the society. Hence, it should be restricted for the common good.

Dr. Mohd Azizuddin Mohd Sani is associate professor in politics and international relations at the School of International Studies, Universiti Utara Malaysia.