This article was first published in Malaysiakini, and is reproduced with permission.
by Andrew Khoo
On Thursday last week, March 11, the government published in the gazette the Emergency (Essential Powers) (No 2) Ordinance. The focus of this Ordinance is specifically on fake news in relation to Covid-19 and the proclamation of emergency. It came into force on March 12, 2021.
News of this latest ordinance (hereinafter referred to as the “fake news ordinance”) has obviously drawn comparison with the repealed Anti-Fake News Act 2018, introduced under the BN government in 2018 and repealed under the Pakatan Harapan government in 2020.
The initial responses to this fake news ordinance have focused on the very unique rationale of the new law, namely to combat fake news not just on Covid-19, which may be understandable, but also on the proclamation of emergency.
Comments have also centred on the lack of precision in the scope of the definition of fake news, as well as the large nature of the penalties. All these are indeed valid and important concerns. However, in my view, there is much more to be concerned about in this piece of emergency-related law. The aim of this article is to highlight 10 things about the fake news ordinance.
1. The fake news ordinance comes under the authority of the minister with responsibility for communications and multimedia, and not the minister with responsibility for law.
This is significant because this ordinance has provisions in relation to access to computerised data (Section 19), preservation of traffic data (Section 20) and disclosure of stored traffic data (Section 21). This is a much more technology-focused law. What this means is that the ordinance is far more invasive of an individual’s privacy than previously provided for under the repealed law.
For example, a police officer or an authorised officer under the fake news ordinance may legally demand your password or encryption/decryption codes, and by written notice order the person in control of the communications system to preserve the data, and to disclose it. The person in receipt of that written notice is not allowed to disclose the existence and content of the written notice.
2. In the repealed Anti-Fake News Act 2018, there was a requirement that the act of creating or otherwise disseminating the fake news must have been “malicious”. The degree of intent was very clear. In the fake news ordinance, the element of intent has been watered down. Instead of “malicious”, Section 4 of the fake news ordinance states “intent to cause, or which is likely to cause fear or alarm to the public, or to any section of the public”.
This broadens the test of intention from being purely subjective – “with intent to cause” – to now include an element of objectivity – “likely to cause”. That test of likelihood will now be determined by reference to an ordinary or average person, and no longer only of the person accused.
3. If convicted, the court may now order you to make an apology. Failure to comply leads to the commission of yet another offence. With a separate fine or sentence of imprisonment.
4. The powers given to the police under the fake news ordinance are given to a “police officer”. This is not defined in the ordinance. In the Police Act 1967, the term “police officer” means any member of the Royal Malaysian Police. So if you are stopped at a roadblock, and for some reason, the constable manning the roadblock suspects you of spreading fake news, he has the power under the ordinance to demand your password to view the contents of your mobile telephone. Failure to comply with his demand is an offence, as mentioned previously.
5. An officer authorised under the Communications and Multimedia Act 1988 shall have all the powers of a police officer under the Criminal Procedure Code (Sections 17 and 18). In other words, an authorised officer who is not trained as a police officer will also have the same powers of search, seizure, enforcement, investigation and arrest as a police officer.
Basic protections removed
6. If a police officer or authorised officer orders you to delete fake news on your communications device or publication and you do not comply within 24 hours, you commit an offence (Section 6).
7. By virtue of Section 10 of the fake news ordinance, all due process protections under the Evidence Act 1950 are overridden.
In normal criminal proceedings, there are rules about the admission of oral and documentary evidence. These have to be corroborated or substantiated. Under the fake news ordinance, these protections are waived. In other words, a person could be prosecuted based on hearsay evidence, or based on documents the genuineness of which may not have been established.
8. Much more worryingly, a person’s protection in relation to statements made by him to any person at any time can be admitted in evidence (Section 12). The usual protections against the use of a statement made without a caution first being issued are gone. Even the evidence of a person who is dead or who has become incapable of giving evidence can be admitted (Section 11).
9. Any documents or things seized by the authorities can be used in evidence, regardless of whether they have been obtained via a warrant or not. The ability to exclude evidence that has been improperly obtained has been overridden (Sections 14 and 15).
10. Section 24 of the fake news ordinance compels an accused person to set out a defence statement stating in general terms the nature of his/her defence, and the areas of dispute with the prosecution’s case. The accused person must also produce copies of any document which would be tendered as part of the defence.
In other words, a person charged with an offence under the ordinance has to disclose what his/her defence is even before the prosecution has actually proven that there is a case to be answered. This severely weakens the position of the accused person and places the accused person in a very unfair position vis-à-vis the prosecution.
As an overall note, it should be borne in mind that the proclamation of emergency is slated to end on Aug 1 unless extended. Under Article 150(7) of the Federal Constitution, any ordinance promulgated under a proclamation of emergency shall continue to remain in force until the expiry of six months from the date the proclamation ceases to be in effect.
This is so unless the ordinance is withdrawn earlier. In other words, all these extremely wide provisions could remain in effect till Feb 1, 2022.
To summarise, the fake news ordinance is a much more draconian piece of law than we appreciate. It represents a steamrolling of due process rights and fair trial protections and is a gross violation of human rights and fundamental liberties as provided in the Federal Constitution and law.
Both those in power and those out of power, and the rakyat, should be concerned that there are areas and issues of possible overreach and misuse that are very clear and obvious. The fake news ordinance must be withdrawn at the earliest possible instance.
ANDREW KHOO is an advocate and solicitor in private practice. He is the co-chair of the Bar Council Constitutional Law Committee but writes here in his personal capacity.