UN special rapporteur: Drop sedition charges on Zunar; lift ban on Mak Yong

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Karima Bennoune also calls for the repeal of the Sedition Act and other repressive laws.

The Special Rapporteur was pleased to engage with parts of the diverse and dynamic arts world in Malaysia.

She was pleased to note the work of Aswara, the National Academy of Arts, Culture and Heritage, and the pride which some federal officials expressed to her regarding traditional art forms (even some that are banned in the state of Kelantan), as well as the fact that especially radio programming is available in multiple languages and dialects through Radio Television Malaysia, the public broadcasting system. She does note civil society calls to increase local multi-lingual content on television.

On the other hand, she has serious concerns about the restrictions and sometimes full bans that have been imposed on a number of artistic and cultural practices at the state level in Kelantan, and on certain authors, publishers, filmmakers and artists at the federal level that seem to have become stricter over time. Many of those consulted criticised the lack of transparency and dialogue in the process of reviewing their works and the difficulty for them to challenge the decisions.

Of particular concern are the bans and restrictions in the State of Kelantan, that target strong living heritage practices and their practitioners, that have contributed to the international reputation of Malaysia and its inscription on the Unesco world representative list of intangible cultural heritage. These restrictions and the negative discourse around them and their practitioners have already threatened the transmission of these art forms. They are also setting a negative tone for other, informal restrictions in social and cultural practices that involve women performing on stage with mixed audiences.

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The bans on Mak yong, Wayang Kulit, Main Puteri and Dikir Barait, and the restrictions on women performing for mixed audiences in Kelantan must be lifted without delay. Steps must also be taken to make up for the negative impact – including stigma – caused by these bans and restrictions and to support these art forms and their practitioners in close consultation with the latter.

Simply moving practice of these art forms elsewhere, away from the very region where some of them emerged, is insufficient to guarantee cultural rights. Measures should be taken to provide better understanding and explanation about the meaning of these practices, and their long histories in Malaysia to overcome prejudicial views about them. In doing so, it is important not only to focus on the ritual elements but also on the social function these arts play in society, as spaces to engage in an intergenerational manner, to explore discuss problems and difficulties, as well as shared human universal experiences.

There is an urgent need to review and clarify the criteria for censorship of books and films and to make the decision-making process more transparent so as to guarantee cultural rights, including freedom of artistic expression. Terms like “controversial” or “sensitive” are too subjective to conform to international standards on freedom of expression. In addition, more support should be provided for independent and documentary film producers, including platforms in national media to present these.

She was also surprised to hear of the banning of books, including some about moderate and progressive Islam, in the country when the government extols these very concepts abroad. This can have a chilling effect on needed debates. The UN expert encourages the Government to support a diversity of spaces and platforms for people to engage meaningfully with one another about culture, including on issues where they do not agree.

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The Special Rapporteur calls for the repeal of the Sedition Act, for the amendments currently being made in the Communications and Multimedia Act to be consistent with international standards for freedom of expression and cultural rights, for the repeal or clarification of sections 211(1) and 233(1) of the CMA, and for the abolition of prior censorship bodies and processes.

She is also deeply concerned about the fact that cartoonist Zunar is facing nine charges related to tweets, and calls for those charges, as well as the travel ban on him to be dropped. When his trial commences next week, the Special Rapporteur and other UN human rights experts will be following developments closely.

The Malaysian government needs to develop concrete plans to guarantee freedom of artistic expression.

The above is an excerpt from Karima Bennoune’s full report of her preliminary observations.

Karima Bennoune was appointed UN Special Rapporteur in the field of cultural rights in October 2015. She grew up in Algeria and the United States. She is Professor of Law and Martin Luther King, Jr Hall Research Scholar at the University of California-Davis School of Law where she teaches courses on human rights and international law. Bennoune has worked in the field of human rights for more than 20 years.

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2 COMMENTS

  1. Copyright © Hakimi bin Abdul Jabar (3rd. October 2017) Kuala Lumpur, Malaysia

    The Federal Constitution, National Heritage Act 2005 and Cultural Heritage – The Ban on Public Performances of Mak Yong Etc. (A Mere Example)

    Cultural Heritage is an expression of the ways of living developed by a community and passed on from generation to generation, including customs, practices, places, objects, artistic expressions and values. Cultural Heritage is often expressed as either Intangible or Tangible Cultural Heritage.

    Cultural heritage is the legacy of physical artefacts and intangible attributes of a group or society that are inherited from past generations, maintained in the present and bestowed for the benefit of future generations.

    The National Heritage Act 2005 (hereinafter referred to as the NHA 2005) was enacted to give protection and preserve various tangible and intangible cultural heritage.

    Preservation of heritage came under a joint jurisdiction between Federal and State Government. This is pursuant to an amendment made in the Parliamentary Session of January 2005 where the Ninth Schedule of the Federal Constitution was amended to include the preservation of heritage in the Concurrent List. The effect is that, either the Parliament or the State Legislative Assembly may make law relating to heritage.

    The prevailing law passed by the Parliament relating to heritage is the NHA.

    Before the NHA was gazetted on 31st of December 2005 and came into effect on 1st of March 2006, only the Antiquities Act 1976 (Act 168) was adopted for the conservation and preservation of National Heritage relating to treasure trove, monuments and cultural heritage in Malaysia. The Treasure Trove Act (Act 542) is also related to the discovery of treasure trove but its implementation fell under the jurisdiction of the State Government. The NHA covers various matters on heritage that include but not limited to intangible cultural heritage.

    UNESCO defines intangible cultural heritage as the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.

    Malaysia had ratified the Convention for the Safeguarding of the Intangible Cultural Heritage and in accordance with the terms of its Article 34, the aforementioned Convention entered into force with respect to Malaysia, on 23 October 2013.

    Article 2 of the 2003 UNESCO Convention (Intangible Cultural Heritage) that is the Convention for the Safeguarding of the Intangible Cultural Heritage states that the “intangible cultural heritage”, as defined, is manifested inter alia in the following domains: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage;
    (b) performing arts;
    (c) social practices, rituals and festive events;
    (d) knowledge and practices concerning nature and the universe;
    (e) traditional craftsmanship.

    Cultural heritage recognized under section 2 of the NHA, is unlike various definitions of cultural heritage discussed above, cultural heritage under the NHA is confined to heritage sites, heritage objects, underwater cultural heritage and intangible cultural heritage which are confined to forms of expressions, sounds and music, dances and performances. It would appear that the wider scope of cultural heritage discussed earlier is not covered in the NHA.

    Nevertheless, Mak Yong, Wayang Kulit and Menora will certainly fall within the ambit of the said Section 2.

    The learned and eminent Justice Gopal Sri Ram FCJ in the Federal Court ruled in Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301 that the constitutional right to “personal liberty” guaranteed under Article 5(1) includes other rights such as the right to travel abroad.

    Article 5(1) of the Federal Constitution ordains that”no person shall be deprived of his life or personal liberty save in accordance with law”. The meaning and scope of the terms”life” and”personal liberty” are by no means certain.

    Judicial approaches

    Much depends on whether the judge adopts a literal or liberal approach to constitutional interpretation. In the literal approach, the ordinary, grammatical meaning of the constitutional text is given effect.

    In the liberal approach, the judge reaches beyond explicit rules and embraces extra-legal, unwritten,”natural law” principles to add moral colours to the legal canvas.

    The interpreter makes explicit what is merely implicit in the law. He distills from the gilt-edged provisions of the Constitution many un-enumerated rights that, though not mentioned explicitly, are essential for giving meaning and substance to the enumerated rights.

    Liberty

    In its generic meaning, liberty is the power of doing what is allowed by the law. It is the freedom to develop our faculties. It is the soul’s right to breathe.

    In the USA, the term personal liberty has been expansively interpreted to include”all the attributes of personhood”. According to Tan and Li-ann,”this extends not only to the freedom of expression or religion but extends also to the right to equal opportunity, the right of privacy and even the right to procreate.”

    In Roe v Wade (1973), a woman’s right to abortion was regarded as part of her constitutionally protected right to personal liberty.

    In India, the right to a passport and the right to travel abroad are part of personal liberty: Maneka Gandhi v Union (1978).

    In the case of Kharak Singh (1963), it was held that police surveillance and police visits to a person’s house at night to verify his movements are an invasion of personal liberty. Right to privacy is part of personal liberty.

    In contrast, the approach of the Malaysian courts is mixed.

    In the early years of independence a literal interpretation of the constitutional grant was resorted to. For example, in Government v Loh Wai Kong (1979), it was held that freedom of movement and the right to travel abroad are not part of personal liberty.

    Personal liberty only related to liberty concerning the body of the individual. Personal liberty is freedom from unlawful arrest and detention. It is protection against bodily punishment and suffering: PP v Tengku Mahmood Iskandar (1973).

    However, in Lim Hai Sun (1992), an order to reside at a drug rehabilitation centre was held to constitute a denial of liberty. In Sugumar Balakrishnan (1998), it was held that Article 5(1) includes a person’s right to seek judicial review before the courts for the enforcement of his rights.

    Such an innovative approach to constitutional jurisprudence breathes life into the static clauses of the Constitution and confers on citizens many rights that, though not enumerated, are implicit in the constitutional scheme of things.

    LEE KWAN WOH v PUBLIC PROSECUTOR [2009] 5 CLJ 631 to argue that such travel ban is unconstitutional. In that case, the Federal Court in 2009 held that “personal liberty” in Article 5 of Federal Constitution includes other rights such as the right to travel abroad.

    Gopal Sri Ram FCJ in LEE KWAN WOH referred to 2 cases in holding this view:
    TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN [1996] 2 CLJ 771 & LOH WAI KONG v. GOVERNMENT OF MALAYSIA [1978] 1 LNS 106

    In TAN TEK SENG (CoA), it was also Gopal Sri Ram JCA himself (as he then was) took the view that:
    “the expression ‘life’ appearing in art. 5(1) of the Federal Constitution does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life.

    In Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333, the Federal Court decided that the provisions of Part II of the Constitution contain concepts that house within them several separate rights. The duty of a court interpreting these concepts is to discover whether the particular right claimed as infringed by state action is indeed a right submerged within a given concept. [Para 3]. In Para 6 of the said judghment, the Court stated the test that should be applied in determining whether a constitutionally guaranteed right has been violated. The test is that laid down by an unusually strong Supreme Court in the case of Dewan Undangan Negeri Kelantan v. Nordin bin Salleh [1992] 1 CLJ 72 (Rep); [1992] 2 CLJ 1125; [1992] 1 MLJ 709, as per the following extract from the headnote to the report:-

    “In testing the validity of the state action with regard to fundamental rights, what the court must consider is whether it directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory.”

    Based on the aforesaid caselaw and constitutional authorities, it is highly arguable that the Kelantan state government’s ban on public performances of the ‘Mak Yong’ dance and other traditional artistic Malay art form, may infringe the constitutional rights duly protected under Art. 5 cl. (1), Art. 10 cl. (1)(a) and Art. 8 cl. (1) of the Federal Constitution. This undoubtedly lends credence to UNESCO’s recent call to lift the ban by the said state government.
    http://m.thesundaily.my/node/485144

    Copyright © Hakimi bin Abdul Jabar (3rd. October 2017) Kuala Lumpur, Malaysia

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