Ordering The Removal Of Online Content: MCMC'S Illegal Exercise of Power

Introduction

The 16th of February 2018 imbued yet another black spot on the already tattered fabric of freedom of speech and expression in Malaysia. The Malaysian Communications and Multimedia Commission (“MCMC”) –– once again –– whipped two online news portals into submission. These were The Malaysian Insight and Malaysia-Today.

Both were respectively served notices by the MCMC to remove several news articles on their websites. In the notices, the MCMC made one allegation. That is –– that the news portals published several articles that allegedly infringed S. 233 of the Communications and Multimedia Act 1998 (“CMA”). Following this, the news portals were ordered to remove the “infringing” articles.

In this write-up, the writer will take to: (i) Explore and examine the scope and ambit of S. 233(1) CMA and; (ii) Scrutinise the legitimacy and legality of the MCMC’s actions in ordering the news portals to remove the “infringing” articles.

Content

I.          The Scope and Ambit of S. 233 CMA:

[A]      S. 233(1) CMA: What does it provide?

Simply put, S. 233(1) CMA provides that any person who uses any network facility (be it the Internet, cellular networks, or even an application), to amongst others; annoy, harass, or abuse another person –– commits an offence.

Such would constitute an offence regardless of whether the annoyance or abuse is made against the person directly; or indirectly, without the person’s knowledge of the matter at all.

[B]       Judicial Commentary on S. 233(1) CMA

In the 2013 case of PP v Rutinin Suhaimin[1], the High Court made several comments on S. 233(1) CMA that are worth noting. First, the victim of the offence need not actually feel annoyed or abused. It is sufficient that the infringing act had the tendency to cause annoyance or abuse to any person.

Secondly, it was said that a single instance of network usage, or rather –– a single infringing act, is sufficient to be caught by S. 233(1) CMA. This is because the provision is worded so widely that the network usage need not be continuous. Thus, even a single remark made, that does not receive any reply: may well fall within the ambit of S. 233(1) CMA.

And thirdly, it is irrelevant whether or not the accused reveals his identity when the infringing communication was made. What does matter is that it be established beyond reasonable doubt that the communication was indeed made by the accused.

The High Court also sets out the two elements to be satisfied to fulfill S. 233(1) CMA. These are: (i) The accused made the communication in question through a network facility and; (ii) Communication was made “with an intent to annoy, abuse, threaten or harass any person”.

[C]       Criticisms Lashed at S. 233(1) CMA

For the past several years, S. 233(1) CMA has been on the receiving end of brunt and harsh criticisms. This is for it has been employed time and again to curtail freedom of speech and expression. Particularly in the crosshairs, are the words “annoy” and “abuse” in the provision.

The wide ambit and vagueness of these two words has allowed the MCMC to employ S. 233(1) CMA at will against news portals, political activists, cartoonists, and opposition politicians alike.

One may thus be prosecuted under S. 233(1) CMA for any comment made that the MCMC deems to “annoy” or hurt the feelings of any person. This has sparked interest and debate amongst legal experts as to whether can annoying someone even be criminalised in the first place?[2]

The Malaysian Bar Council has also accordingly called S. 233 CMA unconstitutional, for it is a disproportionate fetter (given its wide ambit) on the freedom of speech and expression enshrined under Art. 10 of the Federal Constitution (“FC”).[3] Today, as it had coming, S. 233(1) CMA has been duly laid before the courts for a determination as to its constitutionality.[4]

[D]      Punishment for Contravening S. 233 CMA

S. 233(3) CMA prescribes a punishment of a fine not exceeding RM 50,000 or imprisonment not exceeding 1 year, or both –– for committing an offence under S. 233 CMA. There is also an additional fine of RM 1,000 provisioned, for each day the offence continues.

II.        The Legitimacy and Legality of MCMC’s Notices for Removal:

[E]       Ordering Removal of Online Content: An Illegal Exercise of Power

To briefly recall, the MCMC ordered two online news portals to remove several of their news articles, as the articles allegedly infringed S. 233 CMA. Hereunder, it will be examined if the exercise of power in issuing such an order for removal: was legal.

In 1997, the Federal Court in R Rama Chandran v Industrial Court of Malaysia[5] adopted the dicta of Lord Diplock in Council of Civil Services Unions v Minister of Civil Services[6]. Whereby, the courts can interfere with an act (MCMC’s order for removal) of the executive (the MCMC), in generally 4 different circumstances.

One of these circumstances is known as –– Illegality. In the 2016 case of Choo Yeoh Jee v Pesuruhjaya Sukan[7], it was said that illegality is where an authority has been guilty of an error of law in its action. That is, when the authority purports to exercise a power it does not have, and/or acts ultra vires its conferred powers. As succinctly put by the Singapore Court of Appeal in the 2015 case of Tan Seet Eng v Attorney-General[8], illegality examines the source and extent of the authority’s power.

In short, an authority must act within the scope and ambit of its conferred powers. Should it exceed its scope, or exercise powers it does not have –– this would amount to an illegality, warranting intervention of the court to quash such ultra vires acts or decisions.

The punishment prescribed for a breach of S. 233 CMA is as discussed above in [D]. It is a fine, imprisonment, or both. Nowhere in the CMA has Parliament conferred MCMC the authority to issue notices ordering for the removal of online content. Such notices effectively tantamount to censoring the Internet, which S. 3(3) CMA itself expressly prohibits.

It hence becomes lucid that MCMC’s notices to the two online news portals were tainted with illegality. The notices were clearly ultra vires the CMA, as the CMA does not provision for even the existence, what more the issuance of such notices. By issuing the notices, MCMC has thus exercised a power it does not have –– rendering the notices issued, illegal.

Conclusion

Be that as it may on the clear illegality of the MCMC’s notices, both news portal removed the “infringing” articles from their respective websites. Such is the extent of the fear these laws have struck into the hearts of those whom express themselves online.

The response of the news portals in removing the articles is understandable. Although the notices did not specify the consequences of failing to remove the articles, it is likely that the news portals would have been charged under S. 233(1) CMA, as many have been before. At the risk of lengthy and costly legal battles, and subsequent appeals, illegality triumphed.

The continuous issuance of such notices, if left unchallenged, effectively renders MCMC the final arbiter of content deemed infringing S. 233(1) CMA. This would tantamount to usurping the Judiciary’s judicial powers, and is also a blatant disregard of an accused’s right to a fair trial under Art. 5(1) FC, before independent courts.

Such self-conferred executive discretion and powers may well only be the first frightening indicator of what lays in days ahead to come. The Judiciary must step in and act on this. And they must act now.

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Written by,

Harinder Singh A/L Malkit Singh

Malaysian History X: The Chronicles Of UUCA And Student Activism

“...Laws are not necessary when people maintain peace voluntarily. But when people anywhere are unable to keep the peace, then laws have to be made to enforce peace...A government would be failing in its duty, in particular a democratically elected Government, if it does not oversee the usage of public property and public money. Hence the laws relating to the Universities and University Colleges...”[1] 

by Dr. Mahathir Mohamad, 1975

      

The words above were uttered by the then Minister of Education, Dr. Mahathir bin Mohamad when he proposed to pass the amendment bill to the Universities and University Colleges Act 1971 (UUCA) in 1975, an amendment that would eventually cause seismic and everlasting effects to both student activism and universities’ autonomy in Malaysia. To better understand why the UUCA, especially the post-1975 UUCA, was so despised over the years, one needs to recognise student movements prior to the UUCA era.

60s and 70s: The Heyday of Student Movement

Back in the 60s and early 70s, under an autonomous university environment, the students’ associations and unions were encouraged to self-manage their own students’ affairs and welfare. The student unions back then were empowered to operate, on their own initiative, services such as dental care, clinics, buses, cafeterias and canteens.[2] Debates or symposiums were often held around the famed Speakers’ Corner, where social issues such as poverty, civil rights and race were open for intellectual discourse.

It was around the mid-60s when student movements were on the rise. Not limiting their concern of social issues to mere intellectual debates, the students engaged in mass demonstrations to make their voices heard. A good example was the Teluk Gong Struggle in 1967, involving class fights between landless peasants and the Government. The peasants cleared forests and built houses on the Teluk Gong region but soon after these efforts, their houses and crops were demolished by the Government on the ground of illegality, and the peasants were also evicted, with some arrested at the same time. The Government’s harsh actions were met with revolt led by prominent student unions at that time, such as the University of Malaya Student Union (UMSU) and the University of Malaya Malay Language Society (PBMUM).[3] The pressure exerted from the students’ demonstrations were so successful that not only the arrested peasants were released, the then Selangor state government was compelled to revise its land distribution policy to take rural poverty into consideration.[4]

In 1969, months before the 3rd General Election (GE), student unions including the UMSU organised 13 rallies across the country, championing for democracy, social justice, land reform and calls for the unconditional release of political detainees. The rallies received overwhelming support from the public, achieving a total attendance of more than 100,000 people. Interestingly, out of the 13 Parliament constituencies rallied in by the students, 9 would eventually be captured by the Opposition during the 3rd GE.[5] More astoundingly, after the May 13 incident, the eventual resignation of Tunku Abdul Rahman from the Prime Ministership was also attributed to the anti-Tunku campaign advocated by UMSU and PBMUM (whose leader was then UM student Anwar Ibrahim).[6]

Government Response: The UUCA

Against such a background of constant demonstrations and student activism, Mr. Hussein Onn who was the Minister of Education at that time, introduced the UUCA. However, the disputed provisions that made the UUCA not welcomed and fiercely protested against by the students were Sections 15 and 16, where the UUCA prohibited student groups from affiliating with, and also from expressing support, opposition or sympathy towards any political party, trade union or any unlawful group of individuals. Undeterred by the UUCA, the students marched on, with demonstrations after demonstrations voicing for the rural poor in Tasek Utara, Baling and Kuala Lumpur; sometimes leading to the arrest of student protesters. Specifically, after the arrests of student protesters in Tasek Utara in 1974, UMSU was galvanized to initiate an emergency meeting which eventually took over the administration of UM.[7] Such an incident, even after the implementation of UUCA, was akin to the straw that broke the camel’s back for the Government.

In 1975, the Minister of Education at that time Dr. Mahathir Mohamad, introduced the Amendment Act A295 to revamp the UUCA in terms of student movements. If Tun Hussein’s version of UUCA was on the brink of violating students’ rights under Article 10 of the Federal Constitution (“FC”), then Dr. Mahathir’s amendments to the UCCA could be deemed as a complete trammel over such rights, making Article 10 virtually non-existent to students. Under the amendments, individual students were not allowed to join any organisations or groups of persons without the permission of the Vice-Chancellor, and students were prohibited from expressing anything related to any political party. Any breaching of these provisions would attract criminal liability;[8] and student organisations established under the Societies Act 1966 were to be dissolved immediately.[9] Students charged with any criminal offence would be suspended and if convicted,be expelled from the university,[10] and many other restrictions formed the backbone of these amendments.

In the name of public order and morality, Dr. Mahathir justified his proposal by contending that due to student activism that attracted police forces for action, the country’s security against recurring Communist threats had been indirectly loosened, and worse still, some student movements may have already been infiltrated with Communist influence.[11] There was force in his argument when he also said, inter alia, that public (taxpayer) money in universities was wasted when students were more interested in demonstrations than their studies, especially in the context that Malaysia was rather young back in the 70s, and the country desperately needed high quality human capital for nation building.[12]

Despite a fierce debate and challenges against the amendments from Opposition representatives in the likes of Lim Kit Siang and Dr. Tan Chee Khoon (who was a Chairman of the UM University Council), and even with some minor dissent from the Government MPs, Act A295 was bulldozed through Parliament. The effect of the amendments was to strike fear upon students, warning them that there would be a high price to pay for their rebellion.[13] In hindsight, it is undeniable that student activism back then, with their strong anti-Establishment sentiment and persistent efforts in championing for social issues, had somehow become a threatening force that the ruling Government could not afford to overlook. The 1975 amendment marks the end of the ‘Golden Age’ of student movements and the state of law remained largely unchanged over the next few decades.

Post 2009: Revival of Students’ Rights?

After decades of subdue, the UUCA underwent another major amendment in the year 2009, by allowing students to associate with organisations, except political parties or organisations banned by the university authorities. However, a more significant milestone was achieved by the amendments done in 2012. The much disputed S. 15 was again amended and finally for the first time ever, UUCA positively allowed individual students to join political parties, and students were free to engage in intellectual discourse over political topics within campus, on the condition that there will be no involvement in political activities in campus.[14] Such a shift in stance is in no small way consequent to a 2011 landmark Court of Appeal decision of Muhammad Hilman v Kerajaan Malaysia,[15] (UKM 4 case) where Hishamudin Mohd Yunus JCA in no unequivocal terms, held that banning university students, who are competent and mature, from being affiliated with politics is unconstitutional and irrational; and limiting students’ open discourse over politics is just counterproductive and would only produce students trained as robots. His Lordship even held that there is simply no sufficient nexus between public order and morality and the need to suppress students’ rights to freely associate with politics.

The Court of Appeal was correct in pointing out that universities should serve as the breeding ground for reformers and thinkers because the time in university may be the only period where students attaining a sufficient level of consciousness and maturity, are unrestrained and free from the ordinary ordeals of working adults, and can therefore fully indulge themselves within causes they believe in. That is why we see that student movements across the globe, when yielded properly, could unleash major societal impact. Malaysia has had its fair share of student activism back in the early days, albeit some ended in chaotic ways, but it signified the passion and idealism of youth to advance for a better nation. The UUCA is now no longer the much-deplored Act but some of its previous provisions may have caused irreversible effects upon students, especially in terms of active political awareness and participation in social causes. Adding this with the age of digital and information boom that we are in, there is simply too much for the youth to care about, and how much attention is there left for the public affairs of the country?        

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Written by,

Edwin Lim

14th General Election: Midweek Polls A Cause For Concern?

Abstract

One of the hallmarks of a democratic government is the election of a ruling government through fair and free elections partaken by the people. This article aims to explore two notable grey areas of Section 25 of the Election Offences Act 1954 from a constitutional and legal point of view.

Content

The dissolution of the 13th Parliament of Malaysia on 7th of April 2018 had paved the way for the coming of the 14th General Election (GE14).[1] Malaysia’s electoral system is largely characterised by the first-past-the-post (FPTP) concept: a government is formed when it secures the majority of the contested seats.[2] Constituencies are single-member constituencies and a candidate with the highest number of votes casted in his favour wins the contested constituency, even if those who endorse him do not constitute the outright majority of the voters.[3] The Election Commission has fixed the day of 9th of May 2018, which is a Wednesday as the day in which Malaysians go to the poll to elect the government of their choice.[4] GE14 marks the first instance in which polling takes place on a weekday since the 11th General Election in 1999.[5]

As polling will take place on a working day, a matter of momentous concern to employees is whether they are entitled to time-off to cast their votes. This is especially crucial for registered voters whose constituencies are located in East Malaysia, which comprises Sabah and Sarawak. Notwithstanding that polling day has been declared as a public holiday,[6] it remains a matter of interest to explore this area of concern and the governing law thereof.

The Election Offences Act 1954 mandates employers to allow their employees a reasonable period of time to cast their marked ballot papers on polling day.[7] The use of the word “shall” indicates the mandatory nature of the provision. Employers found in contravention of this provision shall, on summary conviction be liable to a fine of five thousand ringgit or to imprisonment for one year.[8] It is pertinent to note that the phrase “reasonable period” is not defined by the Act. This is a common practice in the field of law; no competent court of law or enacted legislation will accord a precise meaning to the said phrase or the like thereof. What is done in this respect in the usual state of affairs is the drawing of a parameter within which “reasonable” is given its effect.

With respect to the foregoing, what amounts to “reasonable” may be gleaned from established judicial precedents. In Penang Development Corporation v Khaw Chin Boo & Anor[9], Mohamed Dzaiddin J (as his Lordship then was) held that what 'a reasonable time' is, in each particular case, a question of fact. It must be reasonable having regard to the state of things at the period of time concerned.[10] Thus, if the same principle were to be applied here, it can generally be comprehended as a period which is reasonably given to anyone to carry out their duty to vote. This could possibly be determined by taking into consideration a number of factors such as the distance between the workplace and the said elector’s designated polling station, availability of transportation and etc.[11] The phrase “reasonable period” ought to be interpreted on a case-to-case basis. For instance, if an elector whose polling station is within the same district as his working place, a few hours would be deemed sufficient. Conversely, if a voter has to vote in East Malaysia and he is working in Peninsula Malaysia, “reasonable period” would have to be construed in a different light: it could possibly mean the entire day.

There appears to be another point worth pondering on as regards the provision above. To reiterate, the Election Offences Act 1954 requires employers to allow their employees a reasonable period of time to cast their votes on polling day. There is an unsettling concern as to the meaning of “polling day”. Does it strictly refer solely to 9th of May 2018 or could it possibly be extended to include any period of time a voter may reasonably require to commute to his appointed polling station? This grey area has tragically remained unaddressed.

The right of every Malaysian who has attained universal suffrage and is lawfully registered as an elector to cast a vote is enshrined in the Federal Constitution of Malaysia.[12] Our Federal Constitution is the supreme law of the federation: any law found to be inconsistent with it shall, to the extent of such inconsistency, be void.[13] Therefore, “polling day” ought to be accorded a liberal, wide construction so as to include the eve of polling day to ensure that every eligible voter is able to fulfil his civic duty to the federation. To interpret it otherwise, would mean depriving the provision the very purpose it serves; upon which it was enacted in the first place and to render it merely notional.[14] We ought to be reminded of the words of Lord President Tun Salleh Abas (as His Lordship then was), delivering the judgment in Che Omar Che Soh v Public Prosecutor[15], “We have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law”.

Ultimately, the author opines that laws must be interpreted as to uphold the fundamental liberties of the people and not to suppress the same. After all, one of the most distinctive elements which separate a democracy from other forms of government is the active participation of its citizens in politics and civic life – a constituent of which is the exercise of the right to vote.

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Written by,

Wilbur Siew Mun Kit