Mar 12, 2015 - ... cell phone and searched his offices for his laptop.4 About 24 hours after his .... Malaysia review an
March 12, 2015 Hon. Najib Razak Prime Minister of Malaysia Office of the Prime Minister of Malaysia Main Block, Perdana Putra Building Federal Government Administrative Centre 62502 Putrajaya Malaysia Re:
Attorney Eric Paulsen and Professor Azmi Sharom
Dear Prime Minister Razak: The American Bar Association (ABA) is an independent, non-governmental organization, representing approximately 400,000 members of the legal profession worldwide. It is committed to protecting the rule of law in the United States and abroad. I write to express the ABA’s concern regarding the pending prosecutions of attorney Eric Paulsen and Professor Azmi Sharom, which are part of an apparent pattern of harassment against lawyers and human rights activists in Malaysia, with at least four other lawyers charged under Article 4 of the Sedition Act 1948 since 2014. 1 Mr. Paulsen is a human rights attorney and the Executive Director of Lawyers for Liberty. He has been charged under Section 4(1)(c) of Malaysia’s Sedition Act 1948 for sending a message over his Twitter account that criticized the Malaysian Department of Islamic Development (Jakim). In his message, Mr. Paulsen alleged that Jakim was promoting extremist interpretations of Islam in its Friday sermons, despite the Government of Malaysia’s public commitment to combat extremist ideology in Malaysia. 2 The facts of his arrest and detention have been widely reported. The ABA is concerned that he was charged for expressing his opinion on a matter of public interest and advocating for accountability of government agencies.
1
See
The
Star,
“Azmi
Sharom
‘Shocked’
over
Sedition
Charge,”
http://www.thestar.com.my/news/nation/2014/09/02/court-azmi-sharom/. (last visited March 10, 2015). 2
The Defense Minister of Malaysia commented that a terrorist attack like the one in Paris could happen in Malaysia. Paulsen tweeted: “Jakim is promoting extremism every Friday. Govt needs to address that if serious about extremism in Msia;” See, e.g. The Malaysian Insider, “PAS: Friday sermon an attempt to spread religious hatred,”
http://www.themalaysianinsider.com/malaysia/article/pas-friday-sermon-an-attempt-to-spread-religioushatred (last visited March 4, 2015); The Malay Mail Online (reprinted by Spot News), “Only Muslims will help Muslims, Jakim says in Friday Sermon,” http://www.spotnews.co/malaysianews/53edad3b4da171bd394680bb (last visited March 4, 2015).
Hon. Najib Razak March 12, 2015 Page 2
On January 12, 2015, Mr. Paulsen was arrested by more than a dozen security officers in a night-time raid, after having already agreed to voluntarily speak with the police later in the week. 3 During the arrest, the police confiscated his cell phone and searched his offices for his laptop.4 About 24 hours after his arrest, Paulsen was able to confer with his lawyer and was brought before a magistrate, who ordered that he should be remanded into custody for an additional two days before release. He was released on bail on January 14, 2015, and officially charged under Section 4(1)(c) of the Sedition Act on February 5, 2015. The court has not yet set a date for trial. If convicted of this charge, Mr. Paulsen could face a fine of five thousand ringgit (approximately $1,300) or imprisonment for up to three years, or both. 5 Mr. Sharom is a law lecturer at the University of Malaya. He expressed his concern over the handling of the ‘Perak Crisis of 2009’ in an article in a Malaysian newspaper and cautioned the government from taking similar action again. 6 He was officially charged with violating Article 4(1)(b) and 4(1)(c) of the Sedition Act on February 9, 2014. Mr. Sharom has challenged the Sedition Act 1948 in the High Court on the grounds that the law was not validly enacted by parliament, and therefore violates the Malaysian Constitution. 7 Mr. Sharom’s case has been postponed until after the High Court issues a decision in the constitutional challenge. As a member of the United Nations, the Commonwealth Secretariat, and the Association of Southeast Asian Nations (ASEAN), Malaysia is obliged to respect and protect fundamental freedoms, including the right to freedom of expression and opinion. Freedom of expression is a fundamental human right, guaranteed under both Article 10 of the Constitution of Malaysia 8 and under Article 19 of the Universal Declaration of Human Rights. 9 The ABA is concerned that the pending sedition charges against Paulsen and Sharom violate their fundamental right to freedom of expression and opinion. Freedom of expression, in particular on matters of public interest, is not only a basic individual right but necessary to a free and just society. The U.N. Human Rights Committee has succinctly explained: “Freedom of expression is a necessary condition for
3
See Frontline Defenders, “Malaysia – Charging of human rights lawyer Eric Paulsen with sedition,”
http://www.frontlinedefenders.org/node/28041 (last visited March 4, 2015); The Malaysian Insider, ”Human rights
lawyer
Eric
Paulsen
charged
with
sedition,”
http://www.themalaysianinsider.com/malaysia/article/human-rights-lawyer-eric-paulsen-charged-withsedition (last visited March 4, 2015); See also The Sun Daily, “Malaysian Bar denounces Eric Paulsen’s arrest as abuse of Sedition Act” http://www.thesundaily.my/news/1297716 (last visited March 4, 2015). 4
Frontline Defenders, supra note 3. Sedition Act 1948, art. 4, Act 15 (July 19 1948) (Malaysia). 6 See The Malay Mail Online, “Take Perak crisis route for speedy end to Selangor impasse, Pakatan told” http://www.themalaymailonline.com/malaysia/article/take-perak-crisis-route-for-speedy-end-to-selangor-impassepakatan-told#sthash.U0r4Ohlt.dpuf (Last visited on March 10, 2015). 7 See The Malaysian Insider, “Azmi Sharom strikes a first as court allows review of Sedition Act,” http://www.themalaysianinsider.com/malaysia/article/azmi-sharom-strikes-a-first-as-court-allows-review-ofsedition-act#sthash.Sv2AsGie.dpuf (last visited March 10, 2015). 8 Constitution, Art. 10 (Malaysia) (2010). 9 Universal Declaration of Human Rights, art. 19, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948); See also International Covenant on Civil and Political Rights, art. 19, Mar. 23, 1976, 999 U.N.T.S. 171. 5
Hon. Najib Razak March 12, 2015 Page 3
the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.” 10 Generally, international law prohibits restrictions on freedom of expression unless they are prescribed by law, directed at a legitimate aim, and necessary in a democratic society. 11 To be “necessary” in a democratic society, restrictions must be proportionate to their purported objective. 12 Criminal penalties are the most severe restriction imposed by law and therefore must be reserved for only exceptional instances, such as incitement to violence. Mr. Paulsen was deprived of his liberty for having expressed his concern over a government agency’s actions, which he viewed as inconsistent with the government’s stated goal of promoting religious tolerance. Mr. Sharom was expressing his views as a legal scholar and lecturer on matters of the constitutionality of government action. Neither attorney made any reference to violence or to the overthrow of the government in their messages. Rather, their comments appear to be aimed at prompting debate about matters of public interest. In addition, the United Nations has promulgated a Declaration on the rights of human rights defenders (“the Declaration”) that specifically states that everyone has the right, individually and in association with others, to “study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.” 13 The Declaration urges States to promote and protect the right and responsibility of lawyers, human rights defenders and other members of civil society “to submit to governmental bodies, agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and drawing attention to any aspect of their work that may hinder or impede the promotion, protection and realization of human rights and freedoms.” 14 Finally, the ABA notes that the United Nations Basic Principles on the Role of Lawyers provides that lawyers, like other citizens, “are entitled to freedom expression, belief, association and assembly” and that they “have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights.” 15 Mr. Paulsen and Mr. Sharom have the right under international law to publish their opinions concerning a government agency’s efficacy and the legality of government action. . 10 United Nations Human Rights Committee, General Comment No. 34: Article 19 Freedom of Opinion and Expression, ¶ 3, Doc. No. CCPR/C/GC/34 (Sept. 12, 2011). In addition, the Committee noted that “[t]he obligation to respect freedoms of opinion and expression is binding on every State party as a whole. All branches of the State (executive, legislative and judicial) and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State party.” Id. at ¶ 7. 11 International Covenant on Civil and Political Rights, art. 19(3) Mar. 23, 1976, 999 U.N.T.S. 171. 12 U.N. Human Rights Committee, General Comment No. 27(Freedom of movement, Art. 12), ¶14, U.N. Doc. CCPR/C/21/Rev.1/Add.9 (1999) (Article 12 of the ICCPR includes exactly the same language regarding restrictions on the right to freedom of movement as articles 19.). 13 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, G.A. Res. 53/144, art. 6(c), U.N. GAOR, U.N. Doc. A/RES/53/144 (March 8, 1999). 14 Id. at art. 8. 15 Eighth United Nations Congress on the Prevention and Crime and the Treatment of Offenders, August 27 – September 7, 1990, Basic Principles on the Role of Lawyers, ¶23, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990).
Hon. Najib Razak March 12, 2015 Page 4
Finally, the ABA notes that Malaysia’s Sedition Act 1948 is being challenged in the High Court later this month. This law has been identified by numerous international human rights experts and other States as a tool to restrict freedom of expression in a manner inconsistent with international standards and norms. 16 In Malaysia’s most recent United Nations Universal Periodic Review, many States recommended that Malaysia review and amend its Sedition Act 1948 to enable its citizens to fully exercise their rights to freedom of opinion and expression. 17 Sedition laws are almost universally obsolete in common law jurisdictions. In countries that still have a sedition law, national courts have found that it must be limited to cases where there is evidence of an intention to incite violent overthrow of a lawfully constituted authority, coupled with actions and a capacity likely to achieve the prohibited result. 18 The ABA respectfully calls upon the government of Malaysia to take steps to ensure promotion and protection of human rights and the rule of law, in compliance with its international commitments and in accordance with the Constitution of Malaysia. No one should be charged with sedition for expressing their views on matters of public concern. Sincerely,
William C. Hubbard cc:
Mr. John Kerry, U.S. Secretary of State Mr. Joseph Y. Yun, U.S. Ambassador to Malaysia Datuk Dr. Awang Adek, Malaysia Ambassador to the U.S. H.E. Mr. Mazlan Muhammad, Permanent Representative of Malaysia to the United Nations
16 See United Nations Human Rights Office of the High Commissioner for Human Rights, “Malaysia Sedition Act threatens freedom of expression by criminalizing dissent,” http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15144&LangID=E (last visited March 4, 2015); UN News Centre, “Malaysia: UN Office urges review of colonial-era Sedition Act,” http://www.un.org/apps/news/story.asp?NewsID=48722#.VPczfPnF8pA (last visited March 4, 2015); Human Rights Watch, “Malaysia: Sedition Act Wielded to Silence Opposition,” http://www.hrw.org/news/2014/09/14/malaysiasedition-act-wielded-silence-opposition (last visited March 4, 2015); FIDH, “Malaysia: Repeal the Sedition Law and stop the crackdown on freedom of expression,” https://www.fidh.org/International-Federation-for-HumanRights/asia/malaysia/16087-malaysia-repeal-the-sedition-law-and-stop-the-crackdown-on-freedom-of (last visited March 4, 2015). 17 United Nations Human Rights Council, Report of the Working Group on the Universal Periodic Review: http://daccess-ddsMalaysia, U.N. Doc. A/HRC/25/10 (December 4, 2013), ny.un.org/doc/UNDOC/GEN/G13/188/48/PDF/G1318848.pdf?OpenElement. 18 See Boucher v. The King, [1951] S.C.R. 265 at 285-86 (Canada); Kedar Nath. Singh v. State of Behar, A.I.R. 1962 S.C. 955 (India); Brandenburg v. Ohio, 89 S. Ct. 1827.
