Executive Summary[1]
The criminal prosecution of blogger Dian Abdullah in Malaysia violates her right to freedom of expression. The American Bar Association Center for Human Rights has been monitoring the proceedings against Abdullah as part of the Clooney Foundation for Justice’s TrialWatch initiative. In June 2020, Abdullah was charged in two instruments with, respectively, “ma[king] statements . . . with intent to cause, or that may cause fear or unrest to the public or to any sections of the public”[2] under Section 505(b) of the Malaysian Penal Code and “consciously ma[king] and commenc[ing] the communication delivery that is abhorrent in nature . . . with intent to offend other people’s feelings”[3] under Section 233(1)(a) of the Communications and Multimedia Act (CMA). The Section 505(b) charge stemmed from a blog post made on March 21, 2020 and the Section 233(1) charge stemmed from a blog post made on March 23, 2020. In both posts, Abdullah criticized the King for his role in appointing a new Prime Minister and criticized the new Prime Minister for allegedly mishandling the COVID-19 pandemic and causing extensive suffering.
Abdullah’s trial commenced on December 22, with the prosecution calling two witnesses from the Police Cyber Response Centre, which monitors Internet posts, blogs, and social media for cyber offenses. The first witness testified that he had read the March 21 blog post and believed it would cause “discomfort” to the Malaysian citizenry but acknowledged that he had not interviewed any citizens about their responses to the post and had not received any complaints about the post. The second witness testified about the March 23 post, stating that he had found some of the terms used in the post to be derogatory and offensive. The trial is set to resume on March 25. The Center is releasing this report prior to the conclusion of the proceedings due to plain violations of international standards on freedom of expression.
The report draws on the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), both of which reflect international human rights standards and both of which guarantee the right to freedom of expression.[4] Under such standards, speech regarding matters of public concern warrants heightened protection. The United Nations Human Rights Committee, charged with interpreting the ICCPR, has delineated requirements that States must fulfil to restrict protected speech: restrictions must be provided by law – clear enough to ensure that officials are not afforded unbounded discretion and that individuals are put on notice of what conduct is unlawful; must have a legitimate objective – the protection of public order, national security, public health, public morals, or the rights and reputations of others; and must be necessary and proportional.
In this regard, even when a State invokes an ostensibly legitimate ground for restriction of freedom of expression, “it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.”[5]
In the present case, Abdullah’s opinions about the transition of power and the government’s response to the COVID-19 pandemic constituted protected speech. Indeed, in addressing matters of public concern, her posts warranted heightened protection. As such, in order to lawfully restrict Abdullah’s speech, the State had to comply with the requirements outlined above.
Abdullah’s criminal prosecution, however, is neither necessary nor proportionate. There is no evidence to suggest that her commentary on matters widely discussed in the public sphere warranted criminal prosecution. In particular, the State has not “demonstrate[d] the precise nature of the threat” posed by Abdullah’s blog posts. Instead, the prosecution has relied on cryptic references to “discomfort,” “fear,” and the “offend[ing of] other people’s feelings” without specifying what risk of harm necessitated criminal charges and how Abdullah’s posts were “direct[ly] and immediate[ly] connect[ed]” to this risk.
In light of the above, the prosecution appears aimed not at serving permissible public interest objectives but at stifling criticism of the Perikatan Nasional coalition’s policies, in line with recent measures such as the widely criticized fake news law.
More broadly, the vagueness of the terms used in Section 505(b) of the Malaysian Penal Code and Section 233(1)(a) of the CMA – among other things, the criminalization of statements likely to “cause public mischief” and statements perceived as “obscene, indecent, false, menacing, or offensive in character” – renders both provisions ripe for abuse, affording the State extensive discretion in their application and contravening the requirement that restrictions on freedom of expression be provided by law.
Going forward, in line with international standards, the Kuala Lumpur Criminal Sessions Court should dismiss the charges against or acquit Abdullah, or the prosecution should withdraw the charges. More broadly, the state should cease employing ill-defined laws as political tools against those who criticize the government.
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