The penalising of Era FM for the actions of some of their employees, which may have been done without Era FM’s consent or knowledge, is wrong and may cause a serious impact on media freedom.
If the alleged crimes were not done with the blessing or approval of the media company, then why should Era FM or any media outlet be offered a “compound”, be charged in court, be suspended or even have its licence revoked?
If Era FM pays the compound, then should not also the relevant employees, and directors be offered a compound or be charged for the crimes.
Section 244(1) of Communications And Multimedia Act 1998: If a body corporate commits an offence under this Act or its subsidiary legislation, a person who at the time of the commission of the offence was “a director, chief executive officer, manager, secretary or other similar officer of the body corporate or was purporting to act in any such capacity or was in any manner or to any extent responsible for the management of any of the affairs of the body corporate or was assisting in such management” may also be charged jointly with Era FM.
So why was no director or others in Era FM also offered a compound or charged? This is so wrong because the crimes of a “body corporate” are committed by individual human people. Neither were the people who made or edited the video or caused it to be uploaded on the internet offered a compound. Neither was the person who appeared in that infamous video.
Note, the law in Section 244(1)(b) says that:
(b) if the body corporate is found guilty of the offence, shall be deemed to be guilty of that offence unless, having regard to the nature of his functions in that capacity and to all circumstances, he proves
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(i) that the offence was committed without his knowledge, consent or connivance; and
(ii) that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.
Is Era FM admitting that the offence was committed with its knowledge, consent and connivance?
Remember that a compound “offer to the person suspected to have committed the offence” and the payment of the compound means “(a) no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made”.
Thus, if Era FM accepts the compound offer, and pays it, it can be perceived as an admission of guilt. And considering the nature of this offence, then ERA FM’s licence ought to justly be revoked and all shareholders, directors and managers ought to be blacklisted from the media industry.
It is best that Era FM refuses the compound offer and instead defend itself in court if they are later charged in court with any offence.
This is more so since Era FM is in the media industry, and it certainly does not want to carry on as being perceived as a media outlet that broke the law, more so the crime of “wounding the religious feelings” of Malaysian Hindus and others in Malaysia who place a high priority on the respect of religion and religious practices of other people in Malaysia.
Charge the suspected criminals in court – only the court gets to decide on guilt or innocence and a just sentence
Malaysians Against Death Penalty and Torture (Madpet) is certainly most disappointed that the communications minister or the Malaysian Communications and Multimedia Commission (MCMC) elected to resolve this matter administratively and to not charge in court Era FM hosts Nabil Ahmad, Azad Jazmin John Louis Jeffri, Radin Amir Affendy and others including maybe Era FM whose actions or words were videotaped that may have amounted to “wounding the religious feelings of any person” or “causing … disharmony, disunity, or feelings of enmity, hatred or ill will, or prejudicing … the maintenance of harmony or unity, on grounds of religion”.
Communications Minister Datuk Fahmi Fadzil said last night that no further action will be taken against Era FM hosts Nabil Ahmad, Azad Jazmin John Louis Jeffri, and Radin Amir Affendy over recent online content that sparked religious tensions…’ – Malay Mail, 12 March.
However, there was a qualification:
Fahmi also said that under the jurisdiction of the Malaysian Communications and Multimedia Commission (MCMC), the matter is now considered “settled”…
This means they still may be charged under Section 298 or Section 298A of the Penal Code or other laws.
For the criminal acts done, in this case, they can still be charged under the Penal Code with Section 298 (for uttering words with deliberate intent to wound the religious feelings of any person) or Section 298A (for causing disharmony, disunity or feelings of enmity, hatred or ill will, or prejudicing the maintenance of harmony or unity, on grounds of religion) offences.
Others have been charged for Section 298 or 298A Penal Code offences
In the past, there have been cases under these offences like in the case of PP v Tham Yut Mooi [2018] (where the convicted was sentenced to six months in prison and a fine of RM5,000 for a Section 298 offence) and the case of PP v Jasen Gan [2020] SMCU 193 (where the convicted was sentenced to two years’ imprisonment for a Section 298A offence).
Thus, rightly, those involved in this Era FM workers’ case can and should be charged and accorded a fair trial.
It is only the court – not minister Fahmi Fadzil, the MCMC or even the public prosecutor – that decides on guilt and the appropriate sentence.
The courts, after conviction, will take into consideration all mitigating factors, including the plea of guilt, the apology and relevant factors before the imposition of sentence, which can even be a fine, with no custodial sentence.
Madpet calls for those who committed an offence to be accorded equal treatment by the law; there should be no preferential treatment for anyone.
The treatment of these alleged criminals – more so since it involves the mocking of religious practices and beliefs of others in multi-religious Malaysia – is important.
The sentence may be minimal, but the important issue is that it is dealt with by the court, which in making its judgment hopefully will educate everyone on what exactly the criminal offence was and why it was a crime.
To date, we only know what we saw in the video, and we do not even know the identities of those who made, edited and caused it to be shared widely on the internet. Even if Era FM, the employer, takes all the blame, justice remains undone until the actual perpetrators of the crime are identified, tried and sentenced by court.
Many are disappointed by the action of the state, including the public prosecutor, who has prevented the courts from hearing completely such cases, deciding on guilt and handing down a just sentence.
This has happened before in cases involving Zahid Hamidi, Riza Aziz (Najib’s stepson) and even Kedah Menteri Besar Sanusi Md Nor.
Even if there is evidence that proves innocence, it should be presented in court, and only the courts should decide on guilt and appropriate sentences.
Likewise, we recall the case of Ahmad Maslan (now Deputy Works Minister) whose trial of criminal charges involving money laundering and giving a false statement to the MACC, was discontinued because of his payment of a compound offer of RM1.1m. – The Edge, 29 September 2021
Madpet reiterates its call for the abolition of compound offers for serious crimes of corruption, abuse of power and even crimes involving the mockery of other religions.
Madpet calls on Era FM to reject the compound offer and, if already paid, revoke the compound agreement and insist on the charging of the real criminal suspects in court.
The MCMC and law enforcement’s duty is to investigate and find relevant evidence. Prosecutors should charge and prosecute professionally. And only the courts shall evaluate evidence in a fair trial, decide on guilt, convict and impose a just sentence to ensure justice is done.
‘Settlements’ have no place in criminal trials, only in civil trials between individuals or entities.
Justice must not only be done but be also seen to be done. Only the court should decide on the guilt of people or of entities. – Madpet
Charles Hector, issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).
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