Methodology This report will analyse the criminalisation imposed upon freedom of expression online and whether there is any difference between general restrictions applied to freedom of expression and criminalisation of the same. This report will adopt legal analysis of court judgments on the criminalisation of freedom of expression and whether there are any distinctions on how the state perceives an offence under laws such as the Sedition Act 1948 when it applies online and offline. However, there are some technical gaps in the study, as the criminalisation of freedom of expression online through the Communications and Multimedia Act 1998 is relatively new in Malaysia.3 As such, there are limitations in terms of reported court judgments on this matter. As of the time of writing, there are only three published high court judgments relating to the Communications and Multimedia Act 1998 and they do not address the crux of the issue of freedom of expression. As such, with regard to examination of the criminalisation of freedom of expression under this law, an assessment will be made through media reports of cases and pre-trial treatment of those suspected of an offence. The Malaysian legal framework for freedom of expression Malaysia is a federation comprising 13 states and three federal territories. The Federal Constitution of Malaysia serves as the foundation of the country’s laws and establishes the scope of powers for the three arms of government and the basic rights guaranteed to its people. In general, the direction of Malaysia as a nation-state is determined by the federal government, with the introduction of most if not all policies for the country driven by the political party that dominates the parliament. Furthermore, Malaysia’s system of parliamentary democracy is largely based on the Westminster system with two houses of parliament, an independent judiciary and an executive (cabinet), which is appointed by the prime minister who commands support in the parliament. While this system has largely worked well in the United Kingdom, in Malaysia the system’s flaws manifest themselves through the upper house in parliament, which is overwhelmingly dominated by the ruling political party; a judiciary whose independence has been in 3 Documented use to regulate social media abuses online emerged around 2013, with the first high court case reported only in 2015. question since 19884 and resurfaced recently;5 and an executive that utilises all arms of government (including but not limited to the Election Commission,6 law enforcement agencies, and other civil services)7 for political dominance. In terms of rights, Article 10 of the Federal Constitution of Malaysia lays the foundation for freedom of speech, assembly and association. Article 10(1) (a) stipulates that every citizen has the right to freedom of speech and expression.8 In many situations, this article has been interpreted in a narrow manner which results in excessive power for the state to restrict and curtail freedom of speech and expression.9 State governments are usually not afforded any power to regulate and restrict freedom of expression. However, state governments have a degree of monopoly with regards to the establishment and enforcement of Islamic or Sharia laws.10 Traditionally, these laws held little repercussion for freedom of expression. However, there have been recent developments, such 4 The concern for the Malaysian judiciary’s independence first surfaced in 1988 during the constitutional crisis where the chief justice of the day was sacked. Pakrisamy, S. (2008, 29 April). Comment: Tun Salleh and the judiciary. The Malaysian Bar. www. malaysianbar.org.my/members_opinions_and_comments/ comment_tun_salleh_and_the_judiciary.html 5 Following the extension of the current chief justice’s term after he has reached the age of retirement stipulated by the Federal Constitution of Malaysia, former judges, the bar council and activists have been criticising the chief justice’s decision to accept the extension. Anbalagan, V. (2017, 26 June). Say ‘no’ to extension for chief justice, urges ex-top judge. Free Malaysia Today. www.freemalaysiatoday.com/category/nation/2017/06/26/ say-no-to-extension-for-chief-justice-urges-ex-top-judge 6 Palansamy, Y. (2017, 20 January). Selangor lists six ‘supersized’ seats as examples of EC’s alleged gerrymandering. Malay Mail Online. www.themalaymailonline.com/malaysia/article/selangorlists-six-supersized-seats-as-examples-of-ecs-alleged-gerrymande ri#Grgij1igjsTlhH6J.97 7 School teachers were in the past given show-cause letters for criticising government. See: Anbalagan, V. (2017, 30 March). Lawyer: Civil servants criticising govt can be charged with misconduct. Free Malaysia Today. www.freemalaysiatoday.com/category/ nation/2017/03/30/lawyer-civil-servants-criticising-govt-can-becharged-with-misconduct; Borneo Post Online. (2013, 16 June). Masing: Wrong for civil servants to oppose govt. Borneo Post Online. www.theborneopost.com/2013/06/16/masing-wrong-forcivil-servants-to-oppose-govt; Malay Mail Online. (2015, 15 June). Racism can unite a race ‘for good’, BTN says. Malay Mail Online. www.themalaymailonline.com/malaysia/article/racism-can-unite-arace-for-good-btn-says#RkxPwS5G0cRuSpIl.97 (The National Civics Bureau or BTN is a government agency which has in the past been known for espousing a neo-apartheid ideology of racial supremacy.) 8 Subject to clauses that refer to Article 149, which deals with legislation against subversion, action prejudicial to public order, etc. www.agc.gov.my/agcportal/uploads/files/Publications/FC/ Federal%20Consti%20(BI%20text).pdf 9 PP v Azmi bin Sharom, Para 37. www.kehakiman.gov.my/directory/ judgment/file/GOJ_-_PP_v_Azmi_Sharom.pdf 10 Article 74(2) outlines the power of state legislatures in terms of law making, and Islamic law is one of the items which state assemblies still have power to determine with limited oversight by the federal government. In practice, the power to legislate religious law is far more complex, with influence from the respective state monarch and institutions. 84 / Unshackling Expression