MalaysiaNow editor Abd Rahman Koya filed an originating summons seeking the court to declare Section 499 and 500 of the Penal Code, which criminalise defamation, as unconstitutional and void.
Court documents sighted by Malaysiakini showed that the application, where the government was named as the sole defendant, was filed at the Kuala Lumpur High Court yesterday (Nov 13) by Messrs Daim and Gamany.
Rahman is seeking the court’s declaration that nullifies the two sections as he claimed that they violate Article 10(1)(a) and Article 8(1) of the Federal Constitution.
He added that he initiated the legal action following a months-long police probe against him that is linked to businessperson Farhash Wafa Salvador Rizal Mubarak.
“I have the standing to bring this action as I am adversely affected, contrary to my rights under Article 5(1) of the Constitution, by the said investigation under Section 499 and 500 of the Code, which provisions I am advised and verily believe are void and unconstitutional.
“(This is because) Section 499 and 500 of the Code permit the punishment of statements of facts or opinion which are true and consequently are irrational and arbitrary, excessive, or disproportionate in contravention of Article 10(1)(a) of the Constitution.
“As it is open to any person aggrieved by any ‘harm to reputation’ by words, signs, or visible representations to seek the remedy of a civil action in the tort of defamation, Sections 499 and 500 of the Code are excessive and disproportionate and hence contrary to Article 8(1) of the Constitution,” he said, as per the supporting documents.
He added that the offence contained under the two sections vests upon the state an arbitrary or excessive power to determine whether or not to prosecute any person, as the elements thereof also constitute a civil tort of defamation, which is consequently repugnant to Article 8(1) of the Constitution.
“I am further advised by my solicitors and verily believe that (the two) sections are pre-Merdeka laws or ‘existing laws’ as defined by Article 160(2) of the Constitution,” he said.
Section 499 of the Code defines defamation as making an imputation about a person with the intent to harm their reputation.
Section 500 outlines the punishment for defamation, which is a maximum of two years of jail time, a fine, or both.
Meanwhile, Article 10 of the Constitution safeguards one’s rights to freedom of speech, assembly, and association, while Article 8 establishes equality before the law.
Sabah mining scandal
Rahman has been the subject of an ongoing police probe since August, following the authorities’ investigation into MalaysiaNow articles published in July, which linked Farhash to the ongoing Sabah mining scandal.
The authorities seized his phone on Nov 5, when he was called to give a statement to the police for the third time.
On July 21, MalaysiaNow published documents allegedly proving that Farhash, who is also a former aide of Prime Minister Anwar Ibrahim, had received authorisation to prospect for minerals across a massive forest reserve in Sabah.
State-owned Sabah Mineral Management (SMM) Sdn Bhd and its CEO, Natasha Sim, who were implicated in the case, also took the matter to court, seeking gag orders against MalaysiaNow and Rahman, over articles on the scandal.
Farhash, together with Bumi Suria Sdn Bhd and Aminuddin Mustapha, filed a defamation suit against MalaysiaNow and Rahman on July 10, seeking RM10 million in damages over articles they claimed tarnished their reputation in the corporate world.
In their affidavits, the plaintiffs said the articles affected their careers and business ties by depicting them as having abused their positions to obtain a mining licence illegally.
Apart from financial damages, the plaintiffs are also seeking aggravated, exemplary, and punitive damages, as well as a court order for the defendants to publish a full, unconditional, and public apology on the portal.
They also want five percent interest per annum and for the articles to be removed from the news site.
On Sept 9, MACC cleared Farhash of alleged links to the Sabah mining scandal, after investigations revealed that no exploration licence was issued to a company owned by the businessperson. - Mkini
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