The presumption of publication

The recent amendment to the Evidence Act 1950 to introduce section 114A has not been without controversy. The Center for Independent Journalism launched an online petition against the section last month. Its basis is the concern that by virtue of the section presuming publication, and as such responsibility for publications, on the part of internet intermediaries and by impeding anonymous expression of thought, free expression on the internet would be undermined. This has particular resonance for Malaysia in light of the way in which the media is regulated.

Though at first glance the argument advanced by CIJ, and other likeminded organisations and individuals is attractive for its championing of free expression, the subject behooves deeper consideration.

Let me state several obvious features of the matter. The media is highly regulated in Malaysia, to an extent that the so-called mainstream media (MSM) is no longer of great relevance to a significant number of Malaysians. As a consequence, Malaysians seek information and opinions on-line from on-line news sites, blogs and the social media. Needless to say in this unregulated sphere expression is robust, unguarded and perhaps in some cases truer. The value of social media to disseminate opinion and information is undoubted and, in light of how things are in Malaysia, it has become a primary means to influencing opinions. Regrettably though it has also resulted in a plethora of anonymous blogs and twitter timelines that routinely publish highly offensive and defamatory content.

Over the years we have seen bloggers and twitter users taken to court for defamation. In the course of my dealings as a lawyer I have had occasion to represent some litigants in such cases. The misperception that many social media users have is that by virtue of the Government’s assurance that the internet would not be censored, people are free to write what they wish without being held to account for the same.

This puts into focus the first of several key features of discussion. Throughout the common law jurisdictions persons who publish defamatory material can be held liable for their having done so. Publishing on the internet is no different from publishing elsewhere in this regard and the same responsibility rests on the author and publisher (if they are different persons) of the offending publication.

The question therefore arises as to whether a person should be entitled to take advantage of technology to publish anonymously and avoid liability. From a strictly legal perspective, I do not see why this should be the case. By this I mean that if there were means to discover who it was that a particular anonymous blogger, and their identity could be ascertained, then that particular person could be made liable.

A second feature then becomes apparent. It centres on the question of whether legislature is permitted to enact presumptions of fact. The short answer is that such presumptions are not as a matter of course repugnant to the law. The statute books are replete with such presumptions. They are in themselves not unconstitutional. The operative presumption here does not in itself undermine the right to expression.

A question may arise as to why it is there is a need for a presumption of publication in light of there being powers in the hands of the authorities, the Multimedia Commission for instance, to determine the identity of anonymous bloggers and so forth.  Private litigants do not have access to the powers and resources of the State and for that reason are too often at a disadvantage. For instance, over the years we have seen how public figures have been made the subject of vicious smear campaigns, and how these persons have been powerless to deal with these vile attacks. Seen in this light, the practical benefit of a section in the Evidence Act that sets up a presumption of publication cannot be denied. It should not be overlooked that presumptions can be rebutted. The CIJ is concerned that hacking may lead to the wrong persons being found culpable. From a strictly legal perspective, if the hacking can be established then one would have an obvious defence.

If I have a reservation, then it is the ambit of the provision. At a recent CIJ forum on the subject, Jeff Sandhu, one of the panelists expressed a concerned that the section may include within its ambit persons who provide free WIFI, as DBKL now requires.  He may have a point. The breadth of the section is cause for concern not only for the fact that it may lead to innocent persons being found to be liable but also for the practical impact it will have on commerce and trade, in particular, as A Asohan pointed out at the same forum, the thriving internet business scene.  The Government may wish to reconsider the scope of the section by reference to the declared intention underlying the section. It is possible that while the aim of the section is not unconstitutional, the breadth of the provision may lead it to being so.

In fairness, it appears that it is the ambiguity of the underlying intention that is fueling many of the concerns. The socio-political considerations are vastly different from the strictly legal ones I have attempted to highlight. The fact remains that a good many Malaysians do not have much faith in the “system” and think of the institutions of the State as having been politicised. The social media has become the principal means of spearheading meaningful reform, as it has in many other parts of the world. Understandably, civil society is concerned that there may be a collateral purpose to the amendment, one aimed at stifling a burgeoning awareness of rights discourse.

Frankly, it is a concern that cannot be dismissed outright having regard to the state of things in the country. The last thing that Malaysia needs right now is the stifling of political consciousness.

MIS

(First published in The Edge)

Election Commission: Apparent Bias

The Chairman of the Election Commission and his Deputy must resign immediately. In the wake of accusations by the Opposition that they are members of UMNO, they have admitted the same.

It is self-evident that they can no longer hold their positions as the head and deputy head of the Election Commission, a body established by the Federal Constitution for the sole purpose of ensuring that the general elections of the Federation and States are run in a manner that ensure public confidence. Put another way, as has been consistently emphasized by the Coalition on Free and Fair Elections, the Election Commission must act in a manner that is seen to be impartial.

That the perception of impartiality is of crucial significance is underscored by Article 113 of the Federal Constitution, the provision which establishes the Election Commission. 113(2) provides:

"In appointing members of the Election Commission the Yang di- Pertuan Agong shall have regard to the importance of securing an Election Commission which enjoys public confidence."

It is manifest that a member of a political party that will participate, or which may potentially participate, in any general election cannot be made members of the Election Commission. The fact that they are members of a political party is indicative of their political loyalties being to that party. This creates an obvious conflict of interest. This is reinforced in situations where the party Constitution requires allegiance, as I believe the UMNO constitution does.

In the context of UMNO, this issue takes on added significance. Accusations have been made that the Election Commission has conducted itself in a manner that lend to an impression of bias. Leave aside the question of whether there is actual bias, the fact that there is an apprehension of bias is in itself sufficient for concerns to have been raised. To this it must now be added that  the Chairman and Deputy Chairman of the Election Commission have been revealed to be members of UMNO. This will only fuel further speculation of bias. This in turn will add to an already high degree of resentment amongst voters about the way in which they perceive the electoral process to have been manipulated. 

It is no significance that the Chairman and the Deputy Chairman were not active members or had forgotten that they are members. The fact that they are members is in itself sufficient to create the conflict of interest. One wonders whether they would have been endorsed by the Conference of Rulers and appointed by the Yang di-Pertuan Agong (as is required under Article 113(1)) if this fact were known.

In the circumstance it appears that there is little choice in the matter. The Chairman and the Deputy Chairman must resign. It cannot end there though. The Government must take steps to convince Malaysians that measures that have been taken thus far with regard the imminent General Election have been consistent with the highest expectations of a clean and fair election. If the Government calls for a General Election under this cloud, then it will reinforce the belief of many Malaysians that the electoral process has been hijacked. 

MIS

The death of civil liberties

Though the Government has said much about the repeal of the infamous Internal Security Act, little has been said to explain how its so-called replacement, the Security Offences (Special Measures) Bill (SOA), will impact on our lives. Even less has been said about the bill tabled to amend the Penal Code that went hand in hand with the SOA. I think there was a reason for this. 

To say that the two bills are draconian would be a gross understatement. They brutally curtail the constitutional freedom of Malaysians to dissent. It seems that we have been made the victims of a sleight of hand. While we were being distracted by the song and dance that attended the termination of the ISA, Parliament was being harnessed to diabolical purpose. The passing of the two bills has sounded the death knell of civil liberties.

I am not given to hyperbole. The facts speak for themselves. 

The SOA is more a procedural instrument. It puts in place the legal framework for the investigation and prosecution of what are described as “security offences”. It allows for the kinds of invasive measures that we have come to understand are needed for governments to combat terrorism effectively.  Government tells us that terrorism is the raison d’etre of the legislation. 

The SOA could arguably be justified on this basis, though I question the need for such extreme anti-terrorism legislation in light of our not having been subjected to terrorist attacks or even threats. Curiously, the preamble to the SOA states that action has been taken and further action is threatened by a body of persons both inside and outside Malaysia to cause organized violence against Malaysians, to excite disaffection against the Yang di-Pertuan Agong and to procure the alteration though unlawful means of legal institutions in the nation. This is news to me. These are matters of great significance to us; they suggest that we are virtually in a state of war or that we are in the midst of an insurgency.

The truth of the matter is that we have not been made the subject of such scurrilous action and we have not been threatened with such action. The bill recites this so the Government can invoke a provision of the Federal Constitution, Article 149, that allows for Parliament to enact laws that contravene certain constitutional guarantees including those that prohibit detention without trial and guarantee a fair trial. The SOA allows, amongst other things, detention without trial for a period of twenty-eight days, and empowers the Attorney General to take extraordinary measures including the interception of all forms of communication where he has reason to believe a Security Offence (this is explained below) has been committed.

We should not lose sight of the fact that the ISA was enacted under Article 149 to address the guerrilla insurgency we faced in the 1960s. I have been made to understand that the Opposition’s unwillingness to associate with an obvious untruth is one of the main reasons it does not support the bill. The fact that Government has resorted to Article 149 gives credence to suggestions that the ISA has merely been repackaged and that the Government is not ready to give up the political advantages that such legislation gives it. As one Minister has observed, there were abuses under the ISA and no law is beyond abuse.

The SOA could perhaps be stomached if it was confined to terrorism. It however is not. In fact there is no mention of the word terrorism or terrorist in the legislation at all. Instead the SOA applies to what is referred to as “Security Offences” which is defined by newly introduced offences, hence the amendments to the Penal Code. This is where the real evil is.

The new offences fall within three categories: activity detrimental to Parliamentary democracy, espionage and sabotage. What is immediately apparent is that the three offences, and the various permutations the amendments allow for, are so widely defined so as to capture almost any form of conduct deemed undesirable by the powers that be. This is extremely alarming in light of trends on the part of the authorities where civil liberties are concerned.

Take the offence of activity detrimental to parliamentary democracy.  It is defined to mean “an activity carried out by a person or group of persons designed to overthrow or undermine parliamentary democracy by violent of unconstitutional means”. This is worry in light of the way in which we have heard accusations of unconstitutional behaviour being hurled at diverse persons from opposition members to activists. Consider also the way in which the members of Parti Sosialis Malaysia were arrested prior to the Bersih 2.0 demonstration last year for the alleged offence of “waging war” against the Yang di-Pertuan Agong.

This point is further illustrated by the offence of “possession of documents and publications detrimental to parliamentary democracy” which carries a jail term of up to ten years. This offence is defined to include documents or publications that have a tendency to, amongst other things, counsel disobedience to the law pertaining to public order. It would clearly impact of demonstrations like those organised by Bersih 2.0 and other activist groups which were deemed by the police to be unlawful. Under this offence, any notices concerning such an event would be a document or publication detrimental to parliamentary democracy.

It does not stop there. Such offending documents or publications include any invitation or request for contributions or donations for the use of persons who counsel disobedience to the law, amongst others. Persons receiving such offending documents or publications are required now to deliver the same to a police officer failing which that person may be convicted and sentenced to a jail term of ten years as well. This would be the case if those offending documents or publications were republished. So, the net would widen to include any bloggers who author or publish material deemed undesirable.

In the same vein, espionage means “an activity to obtain sensitive information by ulterior or illegal means for the purpose that is prejudicial to the security or interest of Malaysia”. What that means is not clear. “Sensitive information” is defined to include any information that concerns, amongst other things, public order and the “essential public interest of Malaysia”. The scope of these provisions become a little clearer when we consider how it is our leadership has a tendency to label activities detrimental to its political standing as being aimed at undermining the Government. It seems to me that whistleblowers might also be caught by this provision as well, a point worth noting in light of the numerous scandals the Opposition have been disclosing recently.

I could go on but the point has, I think, been demonstrated. The scope of these offences leaves no room for doubt. They are self-evidently geared towards far more than terrorism.  The question I have is this: why has the Government led us to believe that these laws are intended to combat terrorism when in fact they do far more. Parliament has created a monstrous law that defies legal logic as much as it flies in the face of promise of reforms towards a more inclusive and participatory democracy.

Malik Imtiaz Sarwar is a practising lawyer and the President of the National Human Rights Society (HAKAM) 

(This article was first published in The Edge on 19..04.2012)

The heart of the matter

Going by what is making the rounds in the media, on and off line, Malaysians have every right to be questioning the sincerity of the Federal Government’s stated commitment to transparent and accountable governance. I think we have every justification to wonder whether the Government even truly understands what corporate governance means.

Malaysians have over the last two decades or been given enough grist for the proverbial mill. Every so often, information would present itself in the public domain for us to doubt that government really knew best, or that it consistently acted in the public interest. Accusations of cronyism and self-interest plagued the Mahathir administration, as they did the administration of Abdullah Badawi. Granted, there were more exposes where the latter was concerned, though this was primarily due to the burgeoning role of social media in the Malaysian and Tun Abdullah being less iron-fisted.

Suffice it to say that over the years, righty or wrongly, Malaysians have become more convinced that the Government tends to act only in its own interests. And where the perception used to be that the Government acted with regard to primarily its political interests, it is now widely believed that the member of Government equally act in their own financial interests.

This is a state of mind that the Government’s continued rhetoric on eradicating corruption does little to address; rhetoric that the Government must surely recognise has minimal, if at all, impact. This is largely due to the fact that Malaysians are given precious little to form a belief that the Government does actually walk the talk.

Consider the recent recommendation by the Malaysian Anti-Corruption Commission (MACC) Advisory Board that Ministers and their families declare their assets to the MACC. One would have thought that this was a step that needed no recommendation, or the recommendation having been made by a specialist Advisory Board tasked with making recommendations of that nature, it would warrant little or no debate from the Government. Yet, a Federal Minister opposed the suggestion on the ground that it would endanger Ministers. From what exactly was not made clear though perhaps, if viewed as a Freudian slip, it conveyed the Minister’s fear of transparency.

It is not very surprising that despite the obvious political fiasco the National Feedlot Corporation (NFC) affair has precipitated, the Government still acts as if there was really nothing wrong with the public funds disbursed to NFC being utilised for the personal purposes of NFC directors and shareholders. This was in spite of some Ministers believing, a viewpoint that I share, that the public funds had been entrusted to NFC for a specific purpose. One would have thought the Government would have directed the Attorney General to take all necessary steps to secure the funds and ensure their return to the Treasury. It goes without saying that the Attorney General has an arsenal of legal provisions at his disposal for that purpose and the resources to commence recovery proceedings worldwide if necessary. The Government has instead incomprehensibly left it to the Attorney General to commence prosecution on charges that go merely to compliance with the Companies Act.

It may be that there is more than the obvious to the NFC affair, perhaps even some mysterious self-evidently exculpating dimension. Whatever the case, it does the Government little credit for it to act as if the saga was just an event in the ordinary course of government. And the truth, as alarming as it is, may be that the Government does really view it that way.

That may explain why the Prime Minister does not appear to feel that it is highly disconcerting for his official offices to have been used for the organisation of his daughter’s engagement. The event, as happy as it is for the families involved, is just that: a family affair. Leaving aside the crucial question of whether the Prime Minister’s Office paid for the event, it was highly inappropriate for the Prime Minister to have utilised government resources for a personal matter. His having done so speaks of a blurring of the lines between the personal and the official in the highest executive office of the nation with all its attendant ramifications and implications.

The fact that the use of the Prime Minister’s Office for personal purposes was not limited to the engagement celebration, going by what has been revealed concerning the Prime Minister’s birthday celebrations, suggests that this sort of thing happens regularly. This may even be the case where the other members of cabinet are concerned.  In these circumstances, Malaysians have every justification to ask whether the Prime Minister and the members of his cabinet address matters of state with the same ambiguity.

There is enough material in the public domain for us to reasonably form the view that they do. Consider the consistent demands by the Opposition and civil society for more accountability and transparency in government spending and the unwillingness of Government to respond meaningfully. The raging controversy over the NFC has as yet not resulted in public disclosure of how it is that NFC came to be granted the soft loan. Other commitments on the part of the Government that have made the news recently are similarly opaque.

These, and other instances, are fueling grave concern over the state of the country’s finances. Unbridled public spending over contracts that have not been made subject to open tenders, some of which involve what could be described as non-arms-length parties, have been shown around the world to be recipes of disaster. But then, we know all that and the question in our hearts is really how far are we from the brink.

Going by what we have learned about the extravagant lifestyles of our leaders we might have reason to believe that all is well. Surely they would not be spending money as if it was going out of fashion, personally and professionally, if there was cause for concern. Or would they. 

The fact is we really do not know, and that is at the heart of the matter. A democratically elected government is one that is accountable to the electorate. Voters did not elect a majority to form a government that would run the nation’s affairs covertly or by stealth. Any such government would simply not be tenable.

MIS

(This article was first published in The Edge, 17.03.2012)

Nothing to hide

Like many others, I believe that the move by the Chief Justice to have judges declare their assets should be lauded. As was emphasised in the speech he delivered recently at the opening of the legal year, the integrity of the judicial process is of paramount importance to the administration of justice. Having judges declare their assets is a key step in achieving that goal. Not only will it allow for some measure of scrutiny, the willingness of judges to disclose their net worth will signal to all Malaysians that they have nothing to hide.

The Chief Justice must be credited for having had the moral courage to acknowledge a need on the part of the Judiciary to directly address concerns that corrupt practices may possibly have infiltrated into the institution. It would have been much easier for the Chief Justice to simply ignore the issue, or deal with it behind closed doors. Many a judge may have said it would be better to handle such matters out of sight for the fact that it would not lead to any untoward impression of the institution.

As effective as this latter approach may have been, it would not have gone very far in addressing public concerns. Though it pains me to say this, I do not think there are many lawyers and litigants who believe that the system of justice is free from corruption.  While this may be nothing more than a perception it is no less damaging; a system in which the public has no confidence is a system that does not work.

I am heartened that the Chief Justice recognises that he must deal with the matter and, to that end, embrace the more challenging route of promoting transparency and accountability amongst his judges. Implicit in his approach is an understanding that the well being of the institution, and the nation, cannot be sacrificed for the sake of the few rotten apples that may be in the barrel.

The Chief Justice says that the Judiciary will work with the Malaysian Anti-Corruption Commission on developing the framework of disclosure. This makes sense considering the function of the MACC and the value of the collaboration must be acknowledged.  It may however be prudent to note that public perceptions of the MACC, in particular its seeming political bias, may undermine the value of the initiative if not handled. It is therefore essential for the Chief Justice to make clear that while the MACC may offer advice on how best to articulate the aims of the Chief Justice in this regard, it will not have the final say.

It would also be useful for the Chief Justice to engage with the Malaysian Bar and Transparency International on the matter. A consultative approach will go a long way in convincing Malaysians that he means business.  Malaysians are after all the beneficiaries of the system of justice and they ought, through interaction with the relevant civil society bodies, be treated as stakeholders. The Bar is well placed to highlight aspects of the process that may shed light on corrupt practices and how best to deal with them. Similarly, the resources and experience that TI can bring to bear will be invaluable in defining the disclosure framework.

The Chief Justice has yet to make clear his vision of the disclosure framework. At the risk of stating the obvious, it is crucial that consideration be given to the degrees of disclosure required as well as the period of disclosure. Where the former is concerned, Judges ought be made to disclose assets in their own names as well as in the names of their spouses and children. They should also be made to declare their interest in companies, not only for their shareholding amounting to assets but for the fact that assets may be parked under asset holding companies, within jurisdiction or elsewhere.  They should be made to disclose their assets in the most comprehensive manner possible. In this regard, the disclosure obligations imposed on members of the Competition Commission under the Competitions Commission Act 2010 is a useful reference point.

Consideration must also be given to the question of whether the declaration of assets ought be made public. I believe it should if the aim is to foster public confidence.  Such a stand is not unprecedented, declarations of assets of the judges of the Indian superior courts are carried on the website of the Supreme Court.

As for the period of disclosure, it would be prudent to require disclosure of assets by Judges as at the time when they were elevated to the bench, or appointed as Judicial Commissioners.  They ought be made to then declare their assets for each year they have served as a Judge and continue to do so until their retirement. It would be counterproductive to only require disclosure of assets prospectively if the aim is to weed out errant judges.

It will also be necessary to consider how the vetting process is to work. I presume that the MACC will be vetting declarations. The question is whether the MACC is to vet disclosures only if allegations are made against a judge, or whether the vetting is done as a matter of course each and every year. I believe that the latter approach is the better one for it promoting the objective of the exercise. This approach will also serve to deter errant conduct.

Once again I congratulate the Chief Justice on the initiative. My best wishes to all for the lunar New Year.

MIS

(First published in The Edge, 22nd January 2012)

Statement: MCLM

It is with regret that I announce my disassociation from the Malaysian Civil Liberties Movement, otherwise known as MCLM.

Though I have at no point in time been a member of MCLM, I had committed to working with the movement to further the reform agenda.

For the sake of clarity, I note here that at all times my agreement to stand as an independent candidate hinged on my being satisfied that there was cause for it. In this I firmly believed, and still do, that the Pakatan Rakyat was pivotal in any campaign for reform, though it was not necessarily the only actor of relevance. In that light, I had resolved to stand only where my doing so would not result in a three-corner fight or where it was strictly necessary to do so.

Much has occurred since the announcement of the initiative. For one, the Pakatan Rakyat appeared to commit to a sustained effort to identify and field quality candidates. For another, Raja Petra Kamaruddin felt it necessary to state his personal views as he did, in an interview with TV3 last year and recently in interviews published in the New Straits Times and the Utusan Malaysia.

I will not delve into the matters spoken of save to say that they cast a less than positive light on the MCLM in so far as its commitment to principle is concerned. Furthermore, I do not share his views.

As I understand things those views were entirely personal to him and are not the views of the MCLM. Raja Petra had however allowed the impression that he spoke on behalf of MCLM and in his capacity as the chairman of the movement. That is regrettable as it is an impression that has undermined the credibility of the MCLM and its efforts. It has also undermined the tremendous efforts of a number of highly committed and selfless individuals in their untiring efforts to develop various civil society initiatives under the banner of MCLM.

In having done what he did, as well intentioned as he may have been, Raja Petra has seriously undermined the cause. It is my belief that no one person is larger than the cause.

It is for this reason that I must disassociate from the movement and withdraw from the independent candidate initiative. I have discussed the matter with Mr Sreekant Pillai who has asked me to state that he shares my views and is similarly dissociating.

I wish to state that my decisions to remain independent of any political parties and to stand as a candidate were mine and mine alone. It has been some years since Raja Petra and I have spoken and he has not in any way influenced any of my decisions.

Malik Imtiaz Sarwar

Preemptive intimidation

So, the police have started their campaign of 'preemptive arrests'. There were activists arrested in various towns/cities yesterday, ostensibly for distributing 'inflammatory material'. As many have already commented, the suggestion that material recommending electoral reform is inflammatory is ludicrous. This is more so in light of YB Nazri's recent observations about our sedition laws being outdated.

And if it is incitement that the police are worried about, then there are more stark instances that are deserving of attention.

The police campaign appears to be aimed more at intimidation, apparently on the misconceived basis that this is a legitimate means to preserving public order. It is not, simply because every one has the right to dissent and express such dissent. This is something that the police appear to recognise; demonstrations and marches have been permitted in recent history, more notably when they involve causes that run consistent with the politics of the Government.

When the police want to, they are fully capable of allowing mass gatherings and controlling public order. Just google "Kuala Lumpur road closures". Even as I write this there are hordes of people running past my office. They're not running from anyone or anything, they're involved in a marathon of sorts. Roads have been closed for this event, as HAKAM members trying to get to my office for our AGM have found out to their consternation.

The preemptive police campaign is inflaming a situation that politics has made tense. What started out as a peaceful expression of unhappiness over the electoral process has now become, to paraphrase the Deputy Prime Minister, a threat to national security. He is concerned that the BERSIH Rally will send the wrong signals to the international community, in particular investors. Well, we might ask the Deputy Prime Minister, what sort of signal does mass arrests send?

MIS