Lawyers for Liberty views with grave concern the provisions of the newly gazetted Emergency (Essential Powers) (No. 2) Ordinance 2021.
This is not the first time that we have seen an attempt to legislate an anti-fake news law on our shores, and this ordinance affirms previous criticisms that such a legislation will negatively affect freedom of speech in our country.
Though the scope of this ordinance is limited to “fake news” relating to Covid-19 and the emergency proclamations, this does not diminish the adverse impact it will have on our democratic system. It is difficult to grasp what public interest is served by stifling discussion on Covid-19 or the emergency proclamation.
We note also that this ordinance does not define the term “emergency proclamation” and its vagueness will almost definitely lead to inconsistency of its application as well as increasing the likelihood of its abuse at the hands of enforcement authorities or other interested parties.
In addition to trampling on the right to free speech, this ordinance entirely disregards the right to privacy by allowing enforcement authorities to search any electronic device that they deem “necessary” to complete their investigation.
When compounded by the fact that not cooperating with such a search will open the risk of a person being fined for upwards of RM100,000 and/or imprisonment, it takes no imagination to see how this provision can easily be abused by the authorities. It will create a climate of fear.
This ordinance also attempts to disregard due process by allowing derogations from the application of the Evidence Act 1950. Considering the enormity of the fines and imprisonment stipulated, these derogations are unjustified and clearly contradict the sacrosanct principle of a fair and impartial trial and may lead to unjust convictions.
We again sternly remind the government that a state of emergency is not a licence to arbitrarily legislate laws; they are at all times bound by the provision of the Federal Constitution and must specifically be cognisant of Article 150 (2B) that limits the enactment of any ordinance to only when there exist circumstances that necessitate its immediate creation.
With the breadth of laws that already exist such as the Penal Code, the Communications and Multimedia Act and others that sufficiently criminalise offending speech, there is no logical or legitimate reason for the enactment of this ordinance.
We therefore urge the government to repeal this ordinance immediately. If they decide to go ahead with this ordinance, they do so at their own peril, as contrary to what is stated in Section 27 of the ordinance, they are at all times morally and legally bound to judicial scrutiny for any actions taken that are in clear breach of the Federal Constitution.
Zaid Malek is coordinator of Lawyers for Liberty