Tuesday, March 27, 2018

Not only draconian, anti-fake news bill is unconstitutional

Not only draconian, anti-fake news bill is unconstitutional
The writer says the Anti-Fake News Bill 2018 is inconsistent with 'free speech and expression' in Article 10(1)(a) of the federal constitution and the guarantee that the internet will not be censored under the Communications and Multimedia Act. – The Malaysian Insight file pic, March 27, 2018.
The Anti-Fake News Bill 2018 tabled in Parliament yesterday ranks as one of the most repressive bills drafted in recent years. 

Even by the very low standard of Prime Minister Najib Razak's administration in protecting civil liberties, this bill is terrible in its scope and effect. Essentially, it criminalises the publication of “fake news”, with the punishment being extreme and intended to create a climate of fear. 

Clause 4(1) states that upon conviction, an accused is liable to imprisonment for up to 10 years or a fine not exceeding RM500,000 or both.

Presently, the publication of “fake news” (to use the very unattractive choice of words by the draftsman) may lead to a civil action suit for defamation, with the defendant being ordered to pay damages. Additionally, contempt of court may be engaged. 

Acts like the Sedition Act and Communications and Multimedia Act already provide the government considerable power to prosecute, as has happened in recent times against opposition personalities and critics.

But the Anti-Fake News Bill 2018 takes censorship to a new level. 

The timing indicates that the Najib government intends to use its awesome powers under the bill during the election campaign for the 14th general election.

“Fake news” is defined in Clause 2 to include “any news, information, data and reports, which is or are wholly or partly false …” 

And who is to judge whether news is “wholly or partly false”? Would this definition extend to opinion, comment, analysis or critique? And what is “partly false”? Does it mean that a lengthy news article with a single factual error violates the law?

The bill contemplates criminal prosecution, which means the sessions court that tries the case is expected to interpret and determine whether an article contains “fake news”. 

This is wholly inconsistent with freedom of speech and a free press.

Article 10(1)(a) of the federal constitution guarantees free speech and expression to every citizen.  

Like all the other fundamental liberties enshrined in Part II of the constitution, they are not absolute – Parliament may impose restrictions on certain grounds specified in Article 10(2)(a).

The possible grounds in the instant case would be “security” or “public order or morality”. 

But by any objective yardstick, what the Anti-Fake News Bill 2018 endeavours to cover does not come within the meaning of “security” or “public order or morality”.

Additionally, case law exists in Malaysia for the proposition that restrictions imposed by Parliament must be “reasonable”. 

The draconian effect of the entire bill renders it unconstitutional, because it is not only inconsistent with “free speech and expression” under Article 10(1)(a) of the federal constitution, but also renders the exercise of that fundamental right “ineffective or illusory”.

Censorship of the internet

The illustrations of criminal offences listed in Clause 4(3) of the bill contain references to “social media account”, “blog” and “website”, thereby indicating that these channels of communication come within the new law. 

This would be in breach of the Bill of Guarantees given to the world in 1997 when the Multimedia Super Corridor (MSC) was launched, with the promise that there would be no censorship of the internet. 

This guarantee became law when Section 3.3 of the Communications and Multimedia Act, 1998 came into force, stating: “Nothing in this Act shall be construed as permitting the censorship of the Internet.”

The anti-fake news bill is a serious departure from this legal guarantee, and puts the Najib government in the same category as authoritarian regimes in Russia, China and Turkey – each with a strongman in power. 

This is a disgraceful piece of legislation drafted by a desperate government determined to crush dissent and silence critics.

The bill is so hastily and poorly drafted that it cannot under any circumstances be improved by amendment. Instead, it must be rejected outright.

But that is not what the Najib administration will do. Instead, the three line whip will be imposed, the bill will be rushed and passed in both houses by comfortable majorities. 

The voters of Malaysia fortunately have their say at the ballot box.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.

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