To-do list of law reforms awaiting new AG Tommy Thomas

12-Jun-2018 Intellasia | Malay Mail | 6:02 AM Print This Post

Tommy Thomas’s appointment as the new Attorney-General has been hailed as boding well for the new government’s planned institutional reforms, but what are these promised changes that he must tackle?

Here, Malay Mail looks at some of the laws that the Pakatan Harapan coalition promised in its 14th general election manifesto to either abolish, review or introduce:

On the chopping block

1. Sedition Act 1948

A heritage of the country’s British colonial past, this law is probably one of the most feared and dangerous tools used to suppress the freedom of speech and dissent of activists, politicians and civil society.

Why is it bad: Nobody knows what might be considered “seditious”. In fact, all it took for Universiti Malaya’s associate professor Azmi Sharom to be charged over his academic opinion, was a policeman to lodge a police report after a quote by Azmi “attracted” his attention.

The Court of Appeal had in November 2016 made a landmark ruling which meant the prosecution will have to prove someone had the intention to commit sedition, but the Federal Court in January 2018 set aside the decision.

Written parliamentary replies in November 2014 showed that no one was charged under the Sedition Act in the 2004-2006 period, with one charged each in 2007, 2009, 2011, before a sudden spike to eight and 12 being charged with sedition in 2013 and 2014.

According to human rights group Suaram’s annual reports, there were 18 reported cases in 2013 (10 probe, seven charged, one convicted), which rose sharply to 44 cases in 2014 ( 29 probed, 12 charged, three convicted), and peaked at a whopping 220 cases in 2015 ( 206 probed, 11 charged, three convicted), before falling to 12 reported cases in 2016 (four convicted, no new prosecutions) and nine documented cases in 2017.

The federal government went back on its promise to repeal this law and instead amended it with heftier penalties ( a comparison of the old and amended version can be found here) such as up to seven years’ jail or more. These amendments that were granted royal assent on May 28, 2015 have yet to come into force. Also check out Malay Mail’s recap of the use of the Sedition Act in 2015, where we counted 15 persons as having been charged under this law in 2015.

Challenges: A wholesale repeal of this law may ruffle feathers, as it makes it an offence if a remark has the “seditious tendency” of questioning matters protected under the Federal Constitution’s Part III, Article 152, Article 153, Article 181 (or citizenship rights; the provision of Malay language as the national language; the special position of the Malay community and the natives of Sabah, Sarawak; and the sovereignty of rulers).

2. National Security Council (NSC) Act 2016

Although former prime minister Datuk Seri Najib Razak had justified this law by saying it was needed to keep Malaysia safe as the country was not immune from the terrorist group Islamic State’s (IS) attacks, civil society including the legal community raised serious concern over the potential concentration of sweeping powers in the hands of an eight-man council chaired by the PM.

This law, which skipped the usual route of getting the royal nod and came into force on August 1, 2016, does not expressly define what would amount to a “national security” issue.

The law is said to grant emergency-like powers and enables the PM to declare an area as a “security area” for a period of up to six months for an indefinite number of times, with the security area being where security forces could arrest and search without warrant, and where inquests on deaths in the area would not be needed if a magistrate was satisfied that the person was killed due to security operations to enforce any written laws.

Although some may have feared initially that Najib would use this law to declare an emergency to continue retaining control of the country after the 14th general election, he announced that the BN coalition that he was leading accepts its defeat and denied that he had met with the NSC to stay in power.

3. Cruel provisions in Communications and Multimedia Act (CMA) 1998 possibly Section 233?

Despite a promise not to censor the Internet in the MSC Malaysia Bill of Guarantees, the CMA’s Section 233 was heavily used during the Najib administration over things such as insults against then prime minister.

Like the Sedition Act, Section 233 of the CMA is worded broadly and vaguely with subjective definitions, whereby the use of Internet or social media to make comments that are “obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person” is an offence punishable by a maximum fine of RM50,000 or maximum one-year jail term or both.

A high-profile example was the case of graphic artist Fahmi Reza, who was fined RM30,000 and sentenced to one month in prison for posting a satirical clown sketch of then prime minister Datuk Seri Najib Razak. Fahmi later managed to crowdfund RM30,000 in just 18 hours.

According to Suaram’s annual reports, the government’s use of Section 233 increased as the Sedition Act took a backseat, with Suaram documenting 37 cases in 2015, 42 cases in 2016 and 38 cases in 2017. Suaram said official government figures state 146 cases probed under this provision from January to September 30, 2017.

4. Printing Presses and Publications Act 1984

This law’s Section 7 provides the home minister “absolute discretion” to ban publications not just written material, but also content with music, sound that are prejudicial or likely to be prejudicial to public order, morality, security, public interest, national interest or likely to alarm public opinion or likely to be against any law.

If that sounds vague, that is because it is; the government is the sole arbiter of what is unacceptable. It can also be a delayed decision, such as a Sisters in Islam book of research essays that was banned almost three years after it was published in 2005 (the lifting of the ban was later affirmed by the Federal Court in 2013).

There were 1,695 books banned under this law in the 1971-2017 period or an average of 37 books annually over issues varying from religion, sexuality and pornography, leftist and communist-related, being critical of the government, according to an October 2017 paper by Penang Institute’s analyst Ooi Kok Hin.

The Home Ministry also used this law in 2015 to suspend the publication of The Edge daily and weekly newspapers for three months over news reports on 1MDB, which the High Court later quashed after noting that the ministry had failed to specify which of the 300 articles on 1MDB published by The Edge since 2009 had to be explained.

There are various other offences under this law, including the malicious publishing of false news that is punishable by a maximum three-year jail term or a maximum RM20,000 fine or both. The same penalty applies to those who print, sell, distribute banned publications, while those who own such banned items without lawful excuse can be fined a maximum RM5,000.

5. Mandatory death penalty

The federal government late last year amended the Dangerous Drugs Act 1952 to remove the mandatory death penalty for drug offences and to reintroduce the judges’ discretion in deciding on penalties other than death sentences, with the amendment coming into force on March 15, 2018.

But the Malaysian Bar has repeatedly urged the federal government to abolish the death sentence for all crimes, regardless of whether the death penalty is mandatory or discretionary.

Beyond pledging the end of the mandatory death penalty, other laws that PH promised to abolish are the Prevention of Crime Act 1959 and the Universities and University Colleges Act 1971 (UUCA), with the latter previously used by prime minister Tun Dr Mahathir Mohamad during his time as the education minister during 1974-1977.

The UUCA was amended in 2012 under the Najib administration to allow university students to join political parties, but other restrictions under this law remain, such as being involved in political party activities within campus.

PH had also vowed to abolish certain cruel provisions in the Penal Code, Security Offences (Special Measures) Act 2012, Peaceful Assembly Act 2012, and the Prevention of Terrorism Act 2015.

For review

5. Official Secrets Act 1972

This is another law with vague definitions, as “official secrets” can mean anything and be applied to everything the government does not want the public to know.

The official definition of “official secret” in the Act is any document or information that is classified as “Top Secret”, “Secret”, “Confidential” or “Restricted” by a minister, mentri besar, chief minister or appointed public officers with such powers to classify.

It is probably most known in recent times for the OSA classification in 2016 on the Auditor-General’s final audit report on the 1MDB scandal, which was only intended to be temporary but extended indefinitely under the Barisan Nasional (BN) administration.

The federal audit report on 1MDB was not declassified despite lawsuits until Pakatan Harapan (PH) came into power and lifted the OSA lid on May 15 to reveal that 1MDB needed RM42.26 billion between 2015 and 2039 to pay off debts and that 1MDB management had acted in some instances without the board’s approval.

Other laws that PH said it would review are the Witness Protection Act 2009 and the Whistleblower Protection Act 2010, which civil society had said must be amended to ensure progress in the country’s fight against anti-corruption.

The Malaysian Bar and four other organisations had in July 2015 submitted a memorandum to the Malaysian Anti-Corruption Commission (MACC) with various proposals, including changing the Whistleblower Protection Act to protect whistleblowers even if the disclosure of alleged misconduct may breach the OSA and to also permit the disclosure of the wrongdoer’s identity to third parties; and to include whistleblowers under the Witness Protection Act.

Finally, can we have it?

7. Freedom of Information Act

While the Department of Statistics Malaysia (DOSM) does provide key figures on the country and government bodies have been trying to improve access to data on their own websites and the government’s open data website, official information for public use is often still lacking.

Information can sometimes be found in parliamentary replies, but these are not available on the Parliament website and replies currently dating back to 2014 are hosted voluntarily on an online database by non-profit open data organisation Sinar Project.

Suhakam has said that a Freedom of Information Act was needed to operate along with the OSA to both ensure transparency and to protect national security, with PH promising to bring about such a law in its manifesto.

Selangor and Penang under PH rule were pioneers when they introduced their own state laws for freedom of information in 2011 and 2010, which were respectively enforced from March 5, 2013 and January 1, 2015. But having the laws in place are not enough, if the process is not as straightforward or sufficiently affordable.

Malay Mail’s stories previously showed that there was still room for improvement in Penang, while the Selangor experience was touted as an example that then BN-led government and the Penang government could learn from. A Malay Mail reader’s experience in Selangor in March 2018 suggested that the implementation of the freedom of information law needs to be improved on.

PH has also promised to introduce a law to ensure the political funding of political parties are corruption-free and from traceable sources, with political parties to be required to submit audited annual financial statements and disallowed from owning assets exceeding RM1 billion or to receive funds from government-linked companies.

Other things that may need attention

The Goods and Services Tax Act 2014 will have to be repealed for PH to fulfill its promise of abolishing the tax and replacing it with the Sales and Services Tax (SST).

The abolition of the months-old Anti-Fake News Act 2018 that came into force on April 11 is also expected to be up on the cards when Parliament meets next month in its first meeting under the PH government. Even in such a short time, there has already been one reported conviction under this controversial law.

While law reforms will be high up on Thomas’s agenda as the new AG, he has also named the 1MDB scandal as the government’s top priority, promising that no one will be spared and that there will be no cover-ups.

Deputy prime minister Datuk Seri Dr Wan Azisah Wan Ismail, who is also the women, family and community development minister, also recently mentioned the proposed Gender Equality Act that have been in the works under her predecessor, but said it would require more consultation.


Category: Malaysia

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