KUALA LUMPUR – The newly gazetted ordinance meant to combat fake news about Covid-19 will have a chilling effect on freedom of speech and expression in the country, said lawyer Syahredzan Johan.
In a Facebook post today, he said the latest development will create a culture of fear among netizens, who are known to be vocal in their criticism of the government.
“The definition of ‘fake news’ is very wide. According to the ordinance, ‘fake news’ includes any news, information, data and reports that are wholly or partly false relating to Covid-19 or the proclamation of emergency.
“For example, if A tweets something to say that the emergency proclamation was sought because the prime minister has lost his majority, this can be considered ‘fake news’, as the official reasons for seeking the emergency is ‘to combat Covid-19’. As such, A can be charged in court.”
Syahredzan, who is also political secretary to Iskandar Puteri MP Lim Kit Siang, said the new ordinance also touches on action “likely to cause fear or alarm to the public or any section of the public”, which suggests that intention may not be necessary as long as it can be proven that it is “likely to cause”.
“The ordinance also empowers the police to order the removal of any publication (such as a tweet or Facebook post) that contains ‘fake news’, and failure to do so may expose the person having custody, possession or control of such publication to be charged in court and if convicted, liable to a fine of RM100,000.”
As such, Syahredzan said the police need not prove that the publication indeed is “fake” before making the order for removal, which gives them wide discretionary powers.
Violation of rights?
Apart from the predicate offences mentioned, the ordinance also departs from established rules of evidence, says Syahredzan.
“Confessions and admissions are admissible, and so, too, are any documents obtained under the ordinance. These departures from the Evidence Act is very similar to the provisions contained the Security Offences (Special Measures) Act, which was enacted to deal with security offences (such as terrorism and organised crime).
“If Sosma is any indication, these provisions will violate the accused person’s right to a fair trial and tips the balance in favour of the prosecution.”
Fake news offenders, he said should not be treated in a similar fashion as those facing terrorism-related charges as there is no rhyme or reason to do so.
“The tried-and-true rules of evidence are there because the principle that a man (or woman) should be presumed innocent until proven guilty in a court of law is the bedrock of our criminal justice system.”
The government, Syahredzan said, will likely try to “sell” this ordinance by saying there is a need to stop people from spreading false information about the Covid-19 vaccine.
“But the offences cast a much wider net, and more importantly, the real mischief is the criminalisation of any attempts to question the emergency proclamation.”
Based on the wording of the ordinance, Syahredzan said potential offenders include whistle-blowers who reveal information about vaccine queue jumpers, a student who questions the reasons for the emergency or a mother who is angry at the ever-changing SOPs and lashes at the government.
“The saddest, most deflating part of this whole affair is that the ordinance did not even go through Parliament before it was thrust upon all Malaysians.
“Such wide discretionary powers given to the state, with far-reaching consequences, is now legally binding without even the illusion of a parliamentary debate.”
PH leaders in the soup
Meanwhile, Lim questioned whether nephrologist Dr Rafidah Abdullah could face investigations under the new ordinance after she highlighted complaints that Kelantan officials from the state secretariat were trying to jump the queue for the Covid-19 vaccine.
Following her tweets, the state government has since issued a denial.
“Will Dr Rafidah now be liable to prosecution under the fake news emergency ordinance, which comes into effect today, making her liable to a fine of up to RM100,000, a jail term of up to three years, or both?”
In a statement today, Lim also questioned whether three Pakatan Harapan leaders – Datuk Seri Anwar Ibrahim, Lim Guan Eng and Mohamad Sabu – would be prosecuted under the new ordinance for their joint statement on January 12.
The trio, in their statement, had rejected Prime Minister Tan Sri Muhyiddin Yassin’s explanation of needing to counter the third wave of Covid-19 pandemic in the country as a valid reason to declare an emergency to suspend Parliament and elections.
Anwar and Lim have been questioned by the police while Mohamad will be called up soon.
Concerned responses have emerged after the federal government gazetted an ordinance that renders the “creation, offering, and publishing” of “fake news” related to Covid-19 unlawful, raising concerns over press freedom.
The Emergency (Essential Powers) (No. 2) Ordinance 2021 dated March 11 stipulates that any person who fails to comply will be liable to a fine not exceeding RM100,000 or a maximum three years of prison, or both. – The Vibes, March 12, 2021
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