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Malaysia urged to cease arrests, investigations of critics on social media

Activists from the Coalition for Clean and Fair Elections (BERSIH) show a placard reading
Activists from the Coalition for Clean and Fair Elections (BERSIH) show a placard reading "Clean Election BERSIH" during a rally against corruption in Kuala Lumpur, Malaysia, 19 November 2016

AP Photo/Vincent Thian, File

This statement was originally published on article19.org on 13 April 2017.

ARTICLE 19 is concerned about the arrest and remand of two unnamed social media users and the ongoing police search for a further two social media users in the space of just two days for comments made on Facebook. We call upon the Malaysian Government to immediately release both individuals who are currently held in police custody and who have been further remanded [i] for investigation under the Section 117 of the Criminal Procedure Code (CPC), and to cease all other arrests and investigations of individuals targeted for expressing their opinions. This is part of a broader trend that must end.

The individual was arrested on 10 April 2017 and charged under Section 505(b) of the Penal Code and Section 233 of the Communications and Multimedia Act (CMA) 1998 for a Facebook post deemed to have "the purpose of maligning the government".

According to Dang Wangi District Police Chief, Mohd Sukri Kaman, the man in question was arrested in the early hours of the morning in Klang, Selangor yesterday. The investigation is believed to be over a photograph showing him carrying a placard while wearing a yellow BERSIH T-shirt. The arrest took place after another individual lodged a complaint with police about the photograph on 5 April. According to Mohd Sukri Kaman, the individual will be remanded for four days for further investigation. The police have seized the individual's mobile phone, SIM card and other unnamed items.

The arrest and confiscations represent a violation of the individual's right to privacy and freedom of expression, as it targets him for expressing his opinion on Government corruption. This is not the first time that the Government has targeted individuals for expressing their legitimate concerns over Government-linked corruption and policies, as illustrated by the charges against graphic artist Fahmi Reza, Malaysian cartoonist Zulkiflee Anwar Haque ('Zunar'), the recent detention without trial of human rights defender and BERSIH Chairperson Maria Chin Abdullah under the Security Offences Special Measures Act (SOSMA) and many others.

On 11 April 2017, a second unnamed social media user was arrested and detained for a statement on Facebook allegedly deemed offensive to the Sultan of Johor, Sultan Ibrahim Almarhum Sultan Iskandar and the Johor Royal Institution. According to Johor Police Chief, Wan Ahmad Naimuddin Mohd, the woman was detained in the late evening in Brickfields, Kuala Lumpur and will be held in police custody until 14 April to assist in an investigation under Section 233 of the CMA. The arrest followed a complaint made to police by a member of the public on 9 April 2017.

We also note that the Terengganu police are working with the Malaysian Communications and Multimedia Commission to track down a further two unnamed social media users for comments about the Sultan of Terengganu, Sultan Mizan Zainal Abidin on Facebook. According to Terengganu Police Chief Datuk Rosli Ab Rahman, preliminary investigations found that one of the Facebook accounts belonged to a student of a University in Syria, while the other was a teenager from Dungun, Terengganu.

Section 505(b) of the Penal Code makes it a criminal offence for "whoever makes, publishes or circulates any statement, rumour or report with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility". Section 233(1)(a) of the CMA makes the "improper use of network facilities or network services" a criminal offence.

In February 2017, ARTICLE 19 undertook a legal analysis of the CMA and concluded that Section 233(1)(a) should be thoroughly revised to more narrowly and precisely define what constitutes "improper use of network facilities or services". ARTICLE 19 also concluded that the CMA creates a number of overly broad content-related offences and in addition, the licensing scheme for network and applications services lacks adequate safeguards against censorship.

ARTICLE 19 reiterates our concerns over the arrest and detention of the aforementioned individuals and calls for all investigations to be dropped and for the immediate release of both individuals.

ARTICLE 19 also calls on the Government to protect the right to freedom of expression, which is guaranteed under Article 10(a) of the Federal Constitution, and to ensure that all existing laws that limit the right to freedom of expression are repealed or amended to fully comply with international standards. This requires the repeal of Section 505(b) of the Penal Code, and the reform of relevant provisions of the CMA, including Section 233(1)(a).

[i] Section 117 of the Criminal Procedure Code is the mechanism which allows the detention of a suspect for more than 24 hours to enable the police to complete their investigation. Under the new Section 117(2), where investigations cannot be completed within 24 hours from the time of the person's arrest, the arrested person shall be produced before a Magistrates who shall then authorize the person to be remanded for a period not exceeding 7 days if the offence investigated is punishable with imprisonment with less than 14 years and not exceeding 14 days if the offence investigated is punishable with death or imprisonment of 14 years or more.

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