The continued use of the draconian Section 233 of the Communications and Multimedia Act 1998 (CMA) by the Malaysian government under Prime Minister Anwar Ibrahim is appalling.
News that the government will review this section is welcomed, but Malaysians Against Death Penalty and Torture (Madpet) calls for the repeal of Section 233 and all anti-human rights provisions in the CMA.
Despite the long-standing call of the Malaysian Bar (through a Bar resolution passed at the annual general meeting in 2016 attended by over 1,000 lawyers), the Malaysian human rights commission Suhakam, civil society groups and others for a repeal of this law, the Pakatan Harapan-led government is still using this law.
The Bar in a statement in December 2015 said, among others:
Section 233(1)(a) of the CMA is a serious encroachment on the freedom of speech and expression guaranteed by Article 10(1)(a) of our Federal Constitution. … Section 233(1)(a) of the CMA is also repugnant to the rule of law, as it is broad in scope, vague and ambiguous, with entirely subjective terms such as “offensive” and “annoy”. It can easily be misused to stifle speech and expression, to shut out contrary views, to quash dissent, to deny democratic space, and to suppress Malaysians. It is this imprecision that gives rise to the perception that the provision is yet another dressed–up political weapon in the armoury of the Government.
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Section 233 criminalises the publication and dissemination online of communication that is “obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person”. It is just too broad and vague, and is open to abuse.
For example, the highlighting of a violation of human rights or laws, or facts connected to alleged violations of rights or laws, would likely “annoy” or even “harass” the wrongdoer, and for the alleged wrongdoer, it could also be said to be “menacing and offensive”. This should never be considered an offence.
As such, this section deters even the highlighting of human rights abuses, breaches of the law and even possible government wrongdoing. A criticism of minister’s statement or of anyone that is in the wrong can also be alleged to be false, menacing, annoying or even harassment.
In 2022 the Centre for Independent Journalism documented 114 cases where Section 233 of the Communications and Multimedia Act was used to investigate netizens and human rights defenders.
The CMA has also infringed on press freedom, and this can also violate people’s right to information. Two national newspapers are being investigated by police for publishing news reports insinuating that Chinese vernacular school students in the country are reluctant to learn Bahasa Malaysia. This may be just an opinion of some, so why the investigation at all?
Blocking access
Another draconian provision is Section 263.
Section 263(2) states:
(2) A licensee shall, upon written request by the Commission [the Malaysian Communications and Multimedia Commission or MCMC] or any other authority, assist the Commission or other authority as far as reasonably necessary in preventing the commission or attempted commission of an offence under any written law of Malaysia or otherwise in enforcing the laws of Malaysia, including, but not limited to, the protection of the public revenue and preservation of national security. [A “licensee” means a person who either holds an individual licence, or undertakes activities which are subject to a class licence, granted under this Act.]
This means access to your blog, website, Facebook, email, etc can be blocked by the licensee or service providers on the request of the MCMC, which simply has to send a written request.
What is worse is that you may not know why this happened and who is responsible for this ‘censorship’ and deprivation of your right to communicate with others? Worse, this censorship, interference, blocking of access or even closure of account of your online facilities of communication can even happen before any alleged crime is committed. One may end up wrongly blaming service providers and social media applications, when the truth may be that it was the government that is responsible.
If access to a blog, website or any social media facility is to be blocked, the suspect of the alleged crime must be immediately informed by the MCMC or the relevant authorities and accorded the right to challenge that decision.
Note that all the police or the MCMC can do is allege or suspect that a crime has been committed, for it is only the court, after a fair trial, that determines whether an offence has been committed. Hence, premature punishment by blocking access to internet facilities must end, as punishment ought to come after the court decides on the guilt.
Spying on us
How many people’s online communications are being intercepted and listened to using the CMA? The people’s right to privacy must be respected and acknowledged.
Section 252 of the CMA authorises “the officer to intercept or to listen to any communication transmitted or received by any communications”.
The CMA says “interception capability” means the capability of any network facilities or network service or applications service to intercept communications under Section 265.
All that is needed now is the authorisation of the public prosecutor, and Madpet believes that it is better that the requirement be a court order made by a judge, who will have to consider our right to privacy before allowing for any such ‘spying’.
Section 265(1) states:, ‘
The Minister may determine that a licensee or class of licensees shall implement the capability to allow authorised interception of communications…
The CMA needs a total review, and all draconian provisions that violate our human rights must be immediately repealed.
Madpet calls for:
- the immediate repeal of sections 233, 263, 252, 265 and other draconian provisions of the CMA
- an immediate stay on the use of Section 233 and all draconian provisions of the CMA pending repeal
- respect and acknowledgement of a person’s right to privacy, and to insert this right in the Constitution or relevant laws
- press freedom, and for the government to ‘end’ trying to scare or ‘control’ journalists and media outlets from reporting or delivering information, including critical opinions, to the Malaysian public
Freedom of speech, expression and opinion must be respected. If there is some ‘fake’ or ‘misleading’ information online, the government should speedily correct or clarify rather than prosecuting the author and those who shared it online. The government must acknowledge the right of people to express opinions different from that of the government of the day, the police or the MCMC. – Madpet
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