The Malaysian online news portal Malaysiakini filed an application for judicial review on April 27, 2018 to challenge the constitutionality of the new Anti-Fake News Act 2018 that came into force on April 11, 2018.
As the definition of news in the Act covers digital publication and the special media, journalist and news portal will be at great risk of being caught under the Act because they would not be able to fully guarantee the accuracy of news when it first reached them and at the same time, they have a duty to keep information flowing.
The news portal is seeking leave for a declaration that the Anti-Fake News Act 2018 is unconstitutional for being in violation of Article 5 and Article 10 read with Article 8 of the Federal Constitution.
In the meantime, the history of a string of challenges on the constitutionality of legislations that were said to infringe the fundamental right enshrined in the Constitution showed that Malaysians are indeed a courageous lot. Let’s look at some of the challenges and outcome.
Challenge on the constitutionality of Section 4 of Sedition Act 1948 unsuccessful
Azmi Sharom, a University Malaya lecturer was charged in the Sessions Court on September 2, 2014 under Section 4(1) of the controversial Sedition Act 1948 for making seditious comments over the 2009 Perak crisis with an alternative charge under Section 4(1)(c) of the same Act that deals with individuals who publish seditious publications.
On November 5, 2014 the matter was referred to the Federal Court for determination of the question of whether Section 4(1) of the Sedition Act 1948 contravenes Article 10(2) of the Federal Constitution and therefore null and void and whether the Sedition Act 1948 is a valid and enforceable legislation under the Federal Constitution.
The Federal Court ruled on October 6, 2015 that being a pre-merdeka law, the Sedition Act 1948 was saved by Article 162 of the Federal Constitution as the Act was intended to be an “existing law” that continues to be valid and enforceable upon the coming into operation of the Constitution on Merdeka Day and therefore held that the Sedition Act was a valid piece of legislation.
The Federal Court also ruled that Section 4 of the Sedition Act 1954 was constitutional as it did not contravene Article 10(2)(a) of the Federal Constitution and remitted Azmi’s case to the Sessions Court for trial. However, the prosecution then withdrew the charge against Azmi Sharom which resulted in the court having acquitted and discharged the said lecturer of the sedition charge in February 2016.
Another case in line was the Kerajaan Malaysia v Mat Shuhaimi Shafiei where the Federal Court ruled on January 8, 2018 that there was abuse of process by bringing a civil application to challenge the constitutionality of Section 3(3) of the Sedition Act 1948 in a criminal suit, after his first application to strike out the criminal charge under Section 4(1)(c) of the Act in the Sessions Court was unsuccessful and therefore ordered that Mat Shuhaimi to stand trial for sedition.
Challenge on the constitutionality of Section 9(5) of the Peaceful Assembly Act 2012 successful
In the case of Nik Nazmi Nik Ahmad, the then Selangor Deputy Speaker was charged under Sections 9(1) and 9(5) of the Peaceful Assembly Act (PAA) for not giving the police the required 10-day notice to holding the Black Out 505 rally back in 2013.
The case was referred to the Court of Appeal for determination of a constitutional issue where Section 9(5) of the PAA was argued to run counter to Article 10 of the Federal Constitution. The Court of Appeal held that failure to give a 10-day notice should not amount to a criminal offence as this is a mockery of the fundamental right to assemble peaceful enshrined under Article 10 of the Federal Constitution. On April 25, 2014 the Court of Appeal ruled that while Section 9(1) of the PAA is a reasonable restriction and thus constitutional, Section 9(5) on the other hand, was unconstitutional as it would be impossible for an organizer to organize a spontaneous assembly without being under threat of prosecution.
Maria Chin Abdullah was the other person who was charged with Section 9(1) and 9(5) of the PAA for failing to give police the 10-day period notice before organizing the Bersih 4 rally on August 29, 2015. Maria filed an application to strike out the charge against her following the ruling in Court of Appeal in Nik Nazmi’s case that Section 9(5) was unconstitutional and therefore, there was no offence committed when the rally was conducted on August 29, 2015. The High Court rejected her application to strike out the charge, and hence her appeal to the Court of Appeal who reversed the High Court’s decision, therefore, upholding that Section 9(5) of the PAA was unconstitutional and allowed her appeal to strike out the charge for failure to give the 10-day notice.
Constitutionality of Section 62 of the Malaysian Anti-Corruption Commission 2009 challenged
Penang Chief Minister Lim Guan Eng was charged under Section 23 of the Malaysian Anti-Corruption Commission Act 2009 (MACC Act) for the offence of using his position as Chief Minister to gain gratification for himself by approving the application for conversion of agricultural land to a public housing zone to a company, Magnificient Emblem Sdn Bhd, to which he had pleaded not guilty and claimed trial.
Lim, who was required under Section 62 of the MACC Act to disclose his defence to the prosecution before the trial began, has filed a challenge against the constitutionality of Section 62 of the MACC Act for being ultra-vires Article 5(1) and 8(1) of the Federal Constitution. His challenge at the High Court was unsuccessful. On appeal to the Court of Appeal, the Court reversed the High Court decision on August 7, 2017 thereby ruled that Section 62 of the MACC Act was unconstitutional.
However, the Court of Appeal’s ruling was reversed by the Federal Court who ruled that the Section 62 of the MACC Act was constitutional and ordered Lim Guan Eng to disclose his defence to the prosecution pursuant to Section 62 of the MACC Act before the beginning of trial. The matter was fixed for trial on Mac and April but was postponed to May 21, 2018 after the general election.
The trend above demonstrated that so long as the question has not reached the final courts, we cannot be too sure of the outcome. Decisions can be overturned just like the flip of a coin. Although the Attorney General has delivered a blow to Malaysiakini’s application by raising objection at leave stage despite the new Government’s direction that it has no intention to retain the Anti-fake news law, we hope that this will not deter the news portal’s march.
Law has a bigger role to play here and judges’ role is to interpret the law accordingly to ensure that the interpretation is in accordance with the intention of Parliament. As we have just witnessed the existence of justice in our country, let’s not lose hope.