LETTER | Hate speech or just a comedy?

LETTER | Of late, outcry and uproar among many Malaysians are sparked owing to the so-called “distasteful” jokes made by the Singapore-born stand-up comedian Jocelyn Chia touching on the tragedy of the disappearance of Malaysian Airlines Flight MH370, putting such comedic yet frequently offensive form of performance in the limelight.

“Sanction” against Chia (above) is called on, but some might be wondering whether comedians must steer clear of sensitive topics including tragedies in their stand-up performances. 

I once read a saying that “some bad jokes only deserve eye rolls and groans, but somehow these manage to still be funny”.

At this juncture, the obscure demarcation between hate speech which should be criminalised and mere humorous expression should be discussed, in spite of the fact that our government recently expressed no interest in legislating a new piece of law to deal with hate speech as they opine that our present laws like provisions in the Sedition Act 1948, Communications and Multimedia Act 1998, and the Penal Code, are sufficient.

One must understand that free speech in this nation comes hand in hand with restrictions, as enshrined in our Federal Constitution. On a global scale, speech or expression is protected by some international documents such as the International Covenant on Civil and Political Rights (ICCPR).

Though Malaysia is yet to ratify the ICCPR, the covenant is still a noteworthy treaty as it calls upon the nations to respect the civil and political rights of individuals. Under the ICCPR, Article 19 protects the freedom of speech whereas Article 20(2) states that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. 

The United Nations Strategy and Plan of Action on Hate Speech defines hate speech as “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factors.”

Published in September 2020, in the UN’s Detailed Guidance on Implementation for United Nations Field Presence, it is advised that the differences between the three categories of hate speech, namely, top level; intermediate level; and bottom level, must be made aware of.

Top-level refers to the severest forms of hate speech which must be prohibited under international law as they fulfil all of the criteria in the six-part threshold test set out in the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

The criteria are (a) the context of the expression; (b) its speaker, (c) their intent; (d) its content and form; (e) its extent and magnitude; and (f) the likelihood, including imminence, of inciting actual action against the target group. Direct or public incitement to genocide is a case in point. 

The intermediate level refers to certain forms of hate speech which may be prohibited under international law, even if they do not reach the above-mentioned threshold of incitement.

Certain types of biased expression may be restricted if such restrictions meet certain conditions and such limitations need to: (a) be provided by law; (b) pursue a legitimate aim, such as the respect of the rights of others, including the right to equality and non-discrimination, or the protection of public order; and (c) be necessary in a democratic society and proportionate (the “three-part test”).

Article 19(3) of the ICCPR is the source of the three-part test. Restrictions on freedom of expression may be imposed to protect individuals from threats of violence or harassment if the three-part test is met. 

The bottom level refers to the least severe forms of hate speech which must not be subject to legal restrictions, even though they may contribute to spreading hatred or may raise concern in terms of tolerance, civility and respect for the rights of others.

Interestingly, speeches which are offensive or blasphemous are advised to be protected and should only be considered hate speech when used as a vehicle for hatred against individuals or groups based upon protected characteristics, such as race, religion and sex.

After all, the seriousness or severity of hate speech may be assessed on the basis of the aforementioned six criteria in the Rabat Plan of Action. Though this test was conceived to identify incitement to discrimination, hostility or violence that ought to be criminalised, it is advised that its six criteria, such as context, intent, and reach of the expression, are useful to analyse the nature and measure the severity of any instances of hate speech. 

Humour at times could be subjective, and in the context of Chia’s notorious performance, it should be examined carefully in the light of the circumstances to ensure a fair analysis of such an incident.

The circumstances that should be considered include the fact that the performance she did was in first place in a comedy club, followed by the spread of the video clip all over the place online.

Since fearless Chia has understood that it is risky to view her offensive clip outside of a comedy club context, Chia who is an experienced comedian should not then put or share the controversial clip on her social media where cyberspace has the tendency to blur the boundary between the “tolerant” and “intolerant” audiences. 

Another important piece of context is that the basis for Chia’s joke or “roasting” (which is a form of humour where a specific individual is subject to jokes at his or her expense), in accordance with what Chia said, is that Singaporeans have long had a friendly rivalry with Malaysia.

Undeniably, nowadays, in stand-up performances, many jokes are made in a transgressive, dark and offensive manner to push the boundaries or challenge the authorities through “punching up”.

However, the manner of “punching down” in the performance, mixing up with disaster-based remarks, might be dangerous when the jokes, especially the values or reflections, are nowhere to be seen.

Regardless of whether Chia has truly no malice against Malaysia or she masqueraded her malice or hatred under her jokes, comedians should bear in mind that not all jokes are acceptable for everybody, not to mention that the said video which was “approved” by Chia has been spread viral and is everywhere for everyone.

Is it hate speech which ought to be punished or just a show or comedy which should be shrugged off by the Malaysian public? Calling on legal sanctions against Chia might not be necessary, in reference to the tests or criteria given above in terms of hate speech.

Nevertheless, even if inciting violence is not the objective of Chia when delivering her performance, the offline or online audiences don’t owe every comedian including Chia a good laugh, particularly when the jokes, to many audiences, do not seem to be funny but cringe.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.