threats by non-state actors.78 In addition, the recent debacle where the National Registration Department (NRD) refused to register a child with his father’s name as his surname due to an existing fatwa79 suggests that these decrees may indirectly influence the execution of secular legal provisions and become a basis for restriction of freedom of expression under secular law. On a more positive note in terms of freedom of expression, Dr. Kassim Ahmad’s case was heard by the Federal Court and the court affirmed the decision made by the Court of Appeal, which had ruled that his arrest was invalid. The grounds of judgment for his case were that an inappropriate law had been used to apprehend him. His arrest should have been made by local religious authorities, as opposed to the federal religious authority.80 At this point, there is very little developed legal jurisprudence and precedents that chart the powers and the scope of the jurisdiction of Islamic or Sharia law, especially with regard to the influence of these laws on freedom of expression. In an ideal scenario, the civil courts would hear and adjudicate on the powers and scope of Islamic or Sharia law in regard to these issues in line with the Federal Constitution. Unfortunately, the development of the law in this area will unlikely be completed in the foreseeable future, and as such this report must conclude that Islamic or Sharia law can potentially be utilised in a manner that criminalises freedom of expression of the Muslim community. Distinction in application between comments in the “real” and “online” world Apart from offences under the CMA, which is exclusively used against online comments, most of the Malaysian laws are interpreted to apply to both online and offline offences without any additional distinction.81 The current state of affairs in terms of interpretation and implementation raises the possibility that a comment made online can potentially 78 Blog posts condemning Sisters in Islam as a deviant group in line with the fatwa issued can be easily found and accessed online, which raises the question as to whether the fatwa itself galvanised attacks and threats against the group led by non-state actors. 79 The Star Online. (2017, 27 July). NRD D-G not bound by fatwa to decide surnames of illegitimate Muslim kids. The Star Online. www. thestar.com.my/news/nation/2017/07/27/nrd-dg-not-bound-byfatwa-to-decide-surname-of-illegitimate-muslim-child 80 Astro Awani. (2015, 21 December). Mahkamah Rayuan putuskan pendakwaan ke atas Kassim Ahmad tidak sah dan batal. Astro Awani. www.astroawani.com/berita-malaysia/mahkamah-rayuan-putuskanpendakwaan-ke-atas-kassim-ahmad-tidak-sah-dan-batal-86091 81 An issue that has been noted by this report on various accounts especially in cases highlighting the use of law in criminalisation of freedom of expression result in a greater punishment when compared to a statement uttered in a physical public forum. Khalid Ismath’s case serves as an excellent illustration of this danger. As internet posting can potentially cut across various platforms and channels, an individual may be slapped with several charges despite the comments or posts being essentially the same, due to automated sharing between Facebook and Twitter, for example. The comments made by him would have traditionally been bound to an offence under the Sedition Act 1948. However, due to the online nature of his posting, some of his posts were subjected to charges that crossed into the CMA. In essence, not only was he technically placed under criminal action for an allegedly seditious statement, he was also charged for social media abuse. Furthermore, the punitive measures under the CMA can be more onerous when compared to the Sedition Act 1948 and other laws. While the maximum prison sentence may not be as extraneous as those under the Sedition Act 1948, the MYR 50,000 (USD 11,800) fine that could be imposed may be far more damaging than a short prison sentence. For example, student activist Adam Adli82 and wellknown activist Hishamuddin Rais83 were both found guilty of sedition and fined MYR 5,000 (USD 1,180) respectively, whereas in the case of Wan Fatul Johari, who was charged under the CMA, he was fined for MYR 120,000 (USD 28,400) and underwent a 30-month prison sentence in default.84 The difference in penalties under different laws is further illustrated in Table 1. Extralegal state actions in criminalisation of dissent Another concerning aspect with regard to the criminalisation of freedom of expression online arises from the manner in which an “offender” is arrested, detained and prosecuted. As an example, in the case described earlier relating to comments on football, the individuals arrested were taken into custody from various parts of Malaysia and subsequently brought for remand and detention at Johor Bahru, a practice which contradicts the Criminal 82 Mei Lin, M. (2016, 18 February). Youth activist Adam Adli gets RM5,000 fine in place of jail term in sedition sentence. Malay Mail Online. www.themalaymailonline.com/malaysia/article/ youth-activist-adam-adli-gets-rm5000-fine-in-place-of-jail-term-insedition#FTlSEeJXXTD6f8Oe.97 83 The Star Online. (2016, 16 May). Hishamuddin Rais’ jail term overturned by Appeals Court. The Star Online. www.thestar.com.my/news/nation/2016/05/16/ hishamuddin-raiss-jail-term-overturned-by-appeals-court 84 www.utusan.com.my/berita/mahkamah/wan-fatul-johari-kanandibawa-keluar-dari-mahkamah-selepas-didapati-1.152543 MALAYSIA / 91