Anti-fake news bill is unconstitutional, says former judge

The Anti-Fake News Bill will be unconstitutional if it is passed by Parliament and made into law, according to former Federal Court judge Gopal Sri Ram.

However, Sri Ram, now a practising lawyer, said it may depend on how the Federal Court looks at the matter, were a challenge to be mounted.

He provided two reasons why he personally thinks the proposed law is unconstitutional.

"First, it is vague and uncertain and therefore it offends the Rule of Law, which is part of Article 8(1) and forms part of the basic structure of the Federal Constitution," Sri Ram told Malaysiakini.

Article 8 concerns equality, where sub-section (1) states that all persons are equal before the law and entitled to equal protection of the law.

"Second, it is a disproportionate response under Article 10(2) because there are other laws that criminalise such conduct, for example the Communications and Multimedia Commission Act 1998. Also, sufficient protection is available under the law of defamation," Sri Ram added.

Everyone has the right to freedom

Article 10 (1) stipulates that everyone has the right to freedom of speech, expression, assembly and to form association but subject to clauses (2) (3) and (4).

Meanwhile, Article 10 (2) stipulates that Parliament may by law impose:

• (a) on the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence;
• (b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof or public order; and
• (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.

The law of defamation Sri Ram referred to is Defamation Act 1957. Criminal defamation is also punishable under the Penal Code.

Articles 5 to 13 are under Part II of the Federal Constitution, and these stipulate the fundamental liberties of accorded to citizens.

Sri Ram qualified his opinion that it may depend on how the apex court looks at the new law.

"If it takes the approach it took in the Semenyih Jaya Sdn Bhd case, then it will strike down the Act. If it takes the approach in the Azmi Sharom case, then it may uphold the Act," he opined.

In a landmark decision made in the Semenyih Jaya case last year, the Federal Court ruled that that the court's power for judicial review is essential to the constitutional role of the courts, and inherent in the basic structure of the Federal Constitution.

That unanimous decision, written by Federal Court judge Justice Zainun Ali, states that judicial independence and the separation of powers are recognised as a basic structure of the constitution, where under Article 121 (1) the constitutional role of the civil courts is as a check-and-balance mechanism.

In Azmi Sharom's case against sedition, then chief justice Arifin Zakaria ruled that Section 4 of the Sedition Act 1948 is constitutional, as it does not go against Article 10 (2)(a).

Arbiters not identified

Another lawyer, Syed Iskandar Syed Jaffar Al Mahdzar, also questioned who would get to determine what is fake news, for this is not stipulated in the Anti-Fake News Bill presented to Parliament.

"The question of fake news… the question is who gets to decide what news is false, either wholly or partly. That is a valid question and cause for concern," Syed Iskandar said.

The controversial bill was tabled for its first reading yesterday, and many quarters, especially lawyers, lawmakers and media practitioners, have already called it into question. -Mkini