The real news on Malaysia’s "fake news" law

April 17, 2018

Author: Henry Koh
Published by: Asia Times

Truth is getting stranger than fiction in Malaysia, and more ironic. Last week, the government passed the now-notorious “anti-fake news” law, widely regarded as an affront to press freedoms and freedom of expression. Prime Minister Najib Razak announced the passage of the law at a National Journalists’ Day event.

Let that sink in. On a day meant to honor journalism, the prime minister announced a law that will undoubtedly be used to target journalists selectively.

Such sad ironies aside, this law stands ready to threaten and belittle the core constitutional and fundamental human rights of Malaysian people’s freedom of opinion, speech, and expression.

US President Donald Trump might very well be envious. The Anti-Fake News Act of 2018 is emblazoned with his favored buzzword. It also passed swiftly through the Malaysian legislature, taking only two weeks from the first reading of the bill on March 26 to receiving Royal Assent and gazetting on April 11, making it one of the fastest-ever bills to be passed by the Malaysian Parliament.

The act vaguely defines fake news as “news, information, data and reports [that] are wholly or partly false” across all digital publication platforms. This would suggest that almost anything shared on the Internet could fall within the ambit of “fake news” under the act.

Shortly after the first reading of the bill, the Malaysian Bar Council raised deep concerns and questions regarding its “content, intent and impact” and urged the government not to legislate in haste before convening a proper select committee to study comprehensively the issues intended in the act.

The elephant in the room here is, of course, the 1MDB (1Malaysia Development Berhad) corruption scandal looming over Najib as one of the alleged main suspects in the notorious case over the embezzlement of state funds.

On March 21, Deputy Communications and Multimedia Minister Jailani Johari said that any information related to 1MDB that had not been verified by the government was considered “fake news” and would be subject to government action. This notion is deeply troubling, as it gives full autonomy and monopoly for the ruling government to determine what is factual regarding a corruption scandal involving its own caretaker.

Under Section 3 of the act, the extraterritorial application boldly states that the law is also applicable to non-citizens “in any place outside Malaysia” allegedly spreading or sharing fake news concerning Malaysia. In other words, if found guilty, anyone, anywhere in the world “who knowingly creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news” can be subjected to a maximum fine of 500,000 ringgit (about US$129,000) and/or a maximum jail term of six years, or both.

The extraterritorial outreach is not the cornerstone of the issue – infringements on free speech are. However, this law enables the Malaysian government to take legal actions against foreign journalists or media who could potentially report on matters the government deems “fake news.”

This is an absolute attack and mockery of the fundamental right to freedom of expression of not only Malaysians, but anyone in the world – as absurd as that may sound.

In Malaysia, the right to freedom of expression is protected under Article 10 of the federal constitution, and the same is enshrined under international human-rights law and standards, including Article 19 of both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

On April 3, David Kaye, United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, reminded the Malaysian government that the proposed bill did not “comply with international human-rights standards on freedom of expression, and may lead to censorship and the suppression of critical thinking and dissenting voices.”

Human-rights lawyer Eric Paulsen systematically and rightly assessed the hasty and problematic legislating process of the act, especially for its lack of proper consultation.

The act was conveniently passed merely a month ahead of general elections in Malaysia. It is too early to say whether the government will misuse the Anti-Fake News Act, but I cannot help but be eerily reminded of the Security Offenses (Special Measures) Act of 2012 (SOSMA), which was also infamously pushed through Parliament at lightning speed.

Purportedly meant to allow the speedy suppression of dangerous figures such as terrorists, in 2016 SOSMA was used to arrest 15 opposition leaders, including activist Maria Chin Abdullah, after a rally calling for a cleaner electoral system in Malaysia, for “attempting to sabotage the state,” leading to widespread condemnation.

This new law is a systemic milestone in silencing dissent. But even without the Anti-Fake News Act, there are myriad existing laws in Malaysia that can be effectively used to censor, muzzle, and punish citizens for expressing opinions the government might deem unsuitable.

The Universities and University Colleges Act of 1971, which restricts the political activities of university students in Malaysia, is arguably the genesis of such laws, enacted at a time when the government was increasingly threatened by vociferous student activists and their movements. My colleagues and I at Fortify Rights have also documented how human-rights activists in Malaysia and in the region have been victims of such prejudicial laws.

How much longer can Malaysians bear this authoritarian farce of a democracy? A widely told joke is that Malaysians are given the freedom of speech but not freedom after speech.

Malaysia will hold elections on May 9. A first order of business, in the manifestos of both coalitions vying for power, should be to repeal this law and uphold the sanctity of Malaysians’ constitutional freedom of speech and expression.

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This article was originally published in Asia Times here.