Two media groups today expressed concern over the government’s new Ordinance criminalising individuals who create or publish fake news on Covid-19 or the Emergency proclamation, worrying about the possibility of paper abuse using the new provision.
The newly gazetted Ordinance states that individuals who create, publish, or circulate fake news on Covid-19 or the Emergency proclamation now face a fine of up to RM100,000 and imprisonment up to three years, or both.
Gerakan Media Merdeka (Geramm) said its concern hinged on the fact that these new restrictions were not drafted by elected parliamentarians through a Dewan Rakyat sitting.
“On the surface, the regulations may appear to be agreeable, however with no clear definition of ‘fake news’, we are concerned over possible abuse that may arise as a consequence.
“The gazetting of this law also appears to be controversial, taking into account dispute over the need to declare an emergency in times of uncertainties surrounding majority status of the ruling government.
“Geramm, therefore, calls for all the laws as gazetted under the Emergency (Essential Powers) (No. 2) Ordinance 2021 dated March 11, to not be used as a tool to silence, pressure or bully parties with an opposing view,” it added.
Similar sentiments were also shared by the Centre for Independent Journalism (CIJ).
In a statement, its executive director Wathshlah G Naidu said that the media watchdog is “deeply shocked and appalled” by the Perikatan Nasional (PN) government’s decision, urging the government to stop using the Emergency Proclamation to stifle any criticism of the current administration.
She lamented that without the necessary parliamentary checks and balances, the unfettered powers given to the current administration under the Emergency Proclamation and the Emergency (Essential Powers) (No. 2) Ordinance 2021, foretells the continued attempts by the government to use any means it deems fit to undermine fundamental rights and freedoms.
Wathshlah felt that the government is also attempting to reintroduce provisions from the defunct Anti-Fake News Act 2018, which was repealed by the then Pakatan Harapan (PH) government.
Lawyers for Liberty (LFL) meanwhile, wants the government to repeal the ordinance.
The non-governmental group said the new law is vague and repressive and will have adverse effects on democracy in Malaysia.
“This Ordinance entirely disregards the right to privacy by allowing enforcement authorities to search any electronic device that they deem ‘necessary’ to complete their investigation.
“It will create a climate of fear,” LFL said in a statement today.
It pointed out that there were other laws that sufficiently criminalise offensive speech and cited the Penal Code and the Communications and Multimedia Act as examples.
It said the current state of Emergency should not be abused to create arbitrary laws and reminded the government that Article 150 (2B) of the Federal Constitution limits the enactment of any legislation to only those that are absolutely necessary.
Senior human rights lawyer Honey Tan said the ordinance was another nail in the coffin as far as press freedom and freedom of speech are concerned.
Tan pointed to Section 5 of the ordinance, which concerns those who “directly or indirectly” provide financial assistance with the knowledge that the money will be used to publish what is deemed as “fake news”.
Offenders can be fined up to RM500,000 or imprisoned for up to six years or both.
“Funders beware. In a situation where funders give money to NGOs, Section 5 provides that they may also be charged if they have reasonable grounds to believe that their funds will be used to commit the offence.
“It is unclear what will satisfy the test of ‘reasonable grounds to believe’ in these circumstances. As the ordinance has an extraterritorial application, foreign funders too will be open to criminal prosecution,” Tan declared.
Lawyer Lim Wei Jiet concurred with Tan that the ordinance will have a chilling effect on press freedom and freedom of speech.
Lim is worried that it would be used against those who demand accountability from the government.
“For example, the media will now be hesitant to report important news, such as VIPs unfairly getting vaccines ahead of frontliners, because they fear it may cause the government to be unhappy and retaliate using this law.
“Or the fact that politicians are now gagged from saying anything critical of the emergency because it can be deemed as ‘fake’.
“The slippery slope is endless and dangerous,” he told Malaysiakini.
Another lawyer said the attorney-general has the discretion on whether to prosecute suspects under the new fake news law covering Covid-19 and the state of emergency
A Srimurugan said the AG, who is also the public prosecutor, could rely on the Penal Code or the Communications and Multimedia Act to file charges against those accused of spreading such false news.
“Existing laws passed by Parliament should not be sidelined just because an ordinance to check the spread of false news has been enacted,” he said.
Srimurugan said Section 233(1) a) of the Communications and Multimedia Act, that carries a fine of up to RM50,000 or a jail term of up to one year or both, could be invoked against offenders for improper use of network facilities.
He said the prosecution could also rely on several provisions in the Penal Code like Section 505 for making statements conducive to public mischief. This provision carries a jail term of up to two years or a fine, or both.
He said Section 114(A) of the Evidence Act, which came into force in 2012, shifted the burden on an accused person as he or she was presumed to publish or republish false news.
“This is where Malaysiakini ran foul of the law for carrying readers’ comments, which was a contempt of court,” he said.
Srimurugan said the Emergency (Essential Powers) (No. 2) Ordinance 2021 was a deterrent for offenders causing panic among the public.
Meanwhile, former deputy public prosecutor Najib Zakaria said normally, police would propose under which law a suspect should be charged if there was more than one legislation for an offence and the penalty varied.
“But it is for the AG or his office to make the call as they are the ones presenting evidence in court to prove their case,” said Najib, who is now in private practice.
He said Article 145(3) of the constitution and case laws empowered the AG to use his discretion.
Najib also reminded that all ordinances promulgated during the emergency remained until Parliament revoked them.
“For example, under former prime minister Najib Razak, Parliament repealed all emergency proclamations, ordinances and the Internal Security Act 1960,” he said.