Alvin Tan and the Freedom of Expression
Alvin Tan is no stranger to controversy. He gained notoriety as a result of his blog which contained his sexual escapades with then partner, Vivian Lee. Once the spotlight was on Alvin and Vivian, there was no turning back.
They took it up a notch by posting a photograph on Facebook with the comment “Selamat Berbuka Puasa (dengan bak kut teh… wangi, enak, menyelerakan)” [Happy breaking fast with bak kut teh…fragrant, delicious, appetising]. Adding insult to injury, the picture contained a halal logo.
There was no surprise when their asinine action gained the ire of many Malaysians. It clearly poked fun at the religious beliefs of Muslims, and is completely unacceptable in a multi-religious society like Malaysia
Many, however, have stood up and defended Alvin’s actions on the basis that he is merely utilising his freedom of expression, as enshrined in Article 10 of the Federal Constitution of Malaysia. Prima facie, that seems to be the case
Article 19 of the Universal Declaration of Human Rights (of which Malaysia is a signatory) guarantees that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”
The International Covenant on Civil and Political Rights (ICCPR) elaborated on Article 19 of the UDHR by stipulating that the freedom of expression may be “subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”
The Parliament of Malaysia has passed certain laws (e.g. s.298, s.298A, and s.500 of the Penal Code, Defamation Act 1957) restricting the freedom of speech in Malaysia [as allowed in Article 10(2) and 10(4) of the Federal Constitution] for the purposes mentioned above
The freedom of speech does not translate into the right to say whatever you want. The freedom of speech/expression gives you the right to speak/express yourself responsibly. Failure to do so would then lead to criminal prosecution under the laws of the land
Fast forward slightly over a year later, it was reported that Alvin Tan is seeking political asylum in the United States and is already at the final stages
Political Asylum USA states that “a person can qualify for asylum, or political asylum, if he or she has a reasonable fear of future persecution, on account of race, religion, national origin, political opinion, or membership in a particular social group”
The website goes on to say that “a reasonable fear just means one need not prove conclusively that they will be persecuted in the future; only that they have a good reason to fear that it will happen.”
“Persecution means that the harm an asylum seeker is afraid of is severe enough to be considered a serious violation of one’s human rights”
The key element for a political asylum application is the reasonable fear of persecution on account of political opinion. Back to Alvin’s case, is he being persecuted because of his political beliefs? No.
Legal action is being taken against him because he violated his freedom of expression by unnecessarily messing with the delicate religious sensitivities in Malaysia.
The legal maxim “commodum ex
injuria sua nemo habere debet” is very much applicable to Alvin’s case. It basically means that a wrongdoer should not be enabled by law to take any advantage from his actions
The only reason Alvin is currently in the United States awaiting his final asylum hearing is because he took advantage of the kindness of the Malaysian courts. Alvin and Vivian were given back their passports for a limited time, in order that they may go to Singapore to film a documentary
Whilst in Singapore, Alvin acted mala fide by fleeing to the United States and applying for asylum there in order to escape the ramifications of his actions. As a result of his somewhat brilliant manoeuvre, Alvin finds himself on Interpol’s wanted list
Furthermore, Alvin was recently quoted as saying, “If all else fails, I can easily publish more ‘seditious’ materials on my Facebook to taunt the authorities and get them to be hot on the pursuit of me again, therefore creating an even more well-founded fear of political persecution to bolster my asylum claim”
Days later he uploaded on Facebook a repulsive picture containing superimposed pig snouts on the faces of key leaders in Malaysia’s government, including the prime minister. Alvin is purposely pushing the buttons of the Malaysian government and using their response to support his claim for political asylum
The US court hearing Alvin’s asylum application should definitely take into account the fact that he is a wrongdoer, and should therefore not be able to benefit from his actions.
It is trite law that ‘he who comes to equity must come with clean hands’ (D&C Builders v Rees) and that ‘he who seeks equity must do equity’ (Chappell v Times Newspaper). The legal maxims mentioned above further substantiates my point that Alvin should be sent back to Malaysia to face the music
If Alvin is granted political asylum for a non-political prosecution, this would set a dangerous precedent as it gives the impression that if a person has committed a crime, all he/she has to do is to run to another country and receive asylum there, thus freeing them from any consequences of their actions
If Alvin feels he is being unfairly charged, he can always countersue the Attorney General or the Government for malicious prosecution. After all, many academicians are of the opinion that the courts are the best protectors of citizens’ rights and fundamental liberties. Why not give this theory a shot?
* This article also appeared in Malaysiakini, The Malay Mail Online, Malaysia Today, and The Malaysian Insider