As Malaysia’s nine-member Conference of Rulers deliberates who will become the country’s next Yang di-Pertuan Agong, or king, following a shock abdication last week, colonial-era sedition laws have been used against civilians critical of the monarchy – raising questions on freedom of speech rights under the administration of Prime Minister Mahathir Mohamad.

To date, three individuals have been arrested under the Sedition Act, which criminalises “inciting” speech, for allegedly insulting the monarchy. In a statement, Police Inspector General Mohamad Fuzi Harun cautioned the public against making provocative remarks about royalty on social media. Under Malaysian law, it is an offence to “bring into hatred or contempt or to excite disaffection against any ruler”, with a penalty of up to three years imprisonment or a fine if found guilty.

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The Pakatan Harapan government had before the elections pledged to repeal the Sedition Act, along with other draconian laws. Although no time frame was set, a moratorium was placed on the act’s use. In December, following violent riots over the proposed relocation of a Hindu temple just outside the nation’s capital, the Home Ministry lifted the moratorium ostensibly as part of efforts to maintain order.

Along with the arrest of three individuals, there have been several reports of employees sacked after making remarks about the king on their personal social media – a move roundly criticised by the public and the legal fraternity.

“An employee does not waive his right to freedom of expression when he enters into an employment contract,” said top human rights lawyer Surendra Ananth, who explained that while an employer might be entitled to regulate the conduct of employees at work in or out of the office, it cannot regulate what an employee does in his or her private life.

“The next question is whether insulting someone on social media could bring disrepute to the company. This is different from committing a criminal offence,” he said.

“My view is that the freedom of expression includes the right to insult someone as long as such insult does not fall within the exceptions in the law, which include public order, national security, defamation and so on. I do not see how the case at hand falls within any of the exceptions. It could arguably fall under defamation but that requires a court finding. Although the authorities have classified it as a national security concern, I do not understand which aspect of our security has been threatened.”

In a statement, Amnesty International Malaysia also condemned the arrests, calling them a “major step backwards in promoting the freedom of expression in the country” and calling on the government to drop all charges and reinstate the moratorium.

Adding to the air of tension is a vigilante Facebook group devoted to trolling users who make remarks that could be construed as insulting to the monarchy, as well as publishing publicly available personal details and demanding employers sack such users. Some comments on the page even encouraged violence should the police fail to act, calling for their chosen targets to be “taught a lesson”.

Sultan Muhammad V, from the state of Kelantan, recently resigned from the role of Agong after intense online speculation less than a week after his return from two months of medical leave. The unprecedented move raised questions on which state ruler would take over the role.

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Under Malaysia’s unique system of constitutional monarchy, the nine sultans, each overseeing a different state, take turns to be Agong for five-year stints. These nine royals form the Conference of Rulers, along with four state governors who attend but cannot vote. The group will officially vote on the new Agong on January 24 and he will be formally sworn in on January 31.

Although the Pahang state head, Sultan Ahmad Shah, is next in line to take over, rumours that he is ailing and is set to step down in favour of his son, the crown prince, have spread on social media.

Meanwhile, tongues were also set wagging when the Sultan of Johor had an audience with Prime Minister Mahathir Mohamad, with whom he has had a fractious relationship after Mahathir put in place constitutional amendments limiting royal powers during his previous stint in power. Although the meeting was closed-door, photos of the two shaking hands and the sultan driving Mahathir to the airport in a bright blue sedan were widely carried by local media.

Scuttlebutt has it that the Johor ruler, Sultan Ibrahim Sultan Iskandar, could bypass the rotational system and be made Agong – although the Prime Minister’s Office insisted the meeting had nothing to do with the role.

In 2016, the sultan claimed he had been offered the role of king, bypassing both Kelantan – Muhammad V’s home state – and Pahang, and saying he had rejected the offer out of respect for the rotational system.

After Johor’s Sultan Ibrahim, Sultan Nazrin Shah of Perak, who is currently the deputy king and is carrying out the functions of the king until a new one is elected, is next up under the rotational system. While the king’s functions are largely ceremonial, he is also responsible for safeguarding Islam in Muslim-majority Malaysia, and must assent to the appointment of individuals for various senior government roles – including that of prime minister.

Under the constitution, there are only three instances in which the ruler who is next on the list can be denied the position: if the royal is a minor; if the Conference of Rulers by secret ballot resolves that he is unsuitable by reason of infirmity of mind or body or any other cause to exercise the functions of king; or if he declines to take the position.

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Should this happen, the ballot would then move to the next ruler on the list. Historically there has not been any departure from the rotational election list, save for 1984 when Johor and Perak switched turns after Perak’s sultan died a few months before the inauguration.

While the rulers deliberate as to who will take over as Agong, Malaysians on social media are practising caution in discussing matters involving the king – particularly after the government said it was mulling the possible introduction of harsher laws to protect the monarchy from insult.

Law Minister Liew Vui Keong was reported by Malaysian media as saying it was “crucial” as the government did “not want [people] to criticise the Agong and sultans”.

This use of the Sedition Act to vociferously defend the honour of the monarchy is not new to Malaysia.

In 2014, a widespread sedition dragnet under the former Barisan Nasional government was launched to crack down on dissent, with several activists, opposition politicians and academics taken to court for various statements that could allegedly incite racial or religious unrest – from insulting the monarchy to questioning the position of Islam within the nation.

One of the accused, Ali Abdul Jalil, fled the country and was subsequently granted political asylum by Sweden.

Constitutional lawyer Lee Wei Jiet described the Sedition Act, an archaic remnant from British colonial rule, as “incompatible with modern standards of free speech and expression”.

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“The most pernicious aspect of the Sedition Act is its arbitrariness and wide definition of what constitutes ‘seditious tendency’. In the case of Section 3(1)(a), the prosecution only needs to show that the words uttered have a tendency to bring into hatred or contempt or to excite disaffection against any ruler,” he said, calling the law unconstitutional.

“In fact, Section 3(3) states that the intention of the accused is irrelevant for offences under the Sedition Act – a very rare exception … in criminal law. That is why many forms of speech which even remotely touch matters mentioned in the Sedition Act become offences. This creates a chilling effect on public discourse and unfairly curtails freedom of speech.”

This was echoed by human rights lawyer Surendra, who said the problem with the act was that it was “so vague and ambiguous that it invites abuse”.

“However, discussion or constructive criticism in my view cannot amount to sedition,” he said. “Lèse-majesté laws definitely amount to an unconstitutional restriction of free speech. The benchmark when talking about these laws is whether it is necessary to protect public order or national security. I do not think they are.”