Shanmuga K returns after a long hiatus to pen his thoughts on the reforms needed to free the minds of Malaysia’s media in the light of the “new” Malaysia post the 14th General Elections, which saw a peaceful change of the federal government for the first time since independence.
Problems
The mainstream media in Malaysia is primarily owned by the political parties that formed the Barisan Nasional coalition, that was in power for more than 60 years. Whilst the internet has seen a flurry of internet based news portals, including the good folks at Malaysiakini – long time friends of LoyarBurok – out-dated colonial era laws, a repressive government and the strictures of the common law have inhibited individual journalists from doing their jobs properly.
Lest it be forgotten, journalists are carrying out a constitutional duty as the Fourth Estate when they report, keeping a check and balance on the institutions of government. The monopolies given to satellite and cable televisions, the licensing of print media, and a multitude of other problems prevent individual members of the media, and ethical media organizations, from performing this duty.
Here are some of my proposed solutions in the short to long term, which I hope the new Pakatan Harapan Government will put in place. The new Home Minister and the new Communications and Multimedia Minister are already making statements that are very welcome, and suggest meaningful reform may well take place.
Proposed Executive action
Not everything needs a change in the law. The first and most immediate action would be for the new Home Minister to lift the bans on various books and other publications.
I would also suggest that we should abolish the concept of a “Ministry of Information” and corporatize / privatize Radio Television Malaysia. RTM is a government department, and took over from the British Broadcasting Corporation (BBC) Malaya. The BBC in England is established by Royal Charter and is now regulated by an overall external regulator called Ofcom in England. But do we really need a government department feeding us information? Shouldn’t the RTM be independent of government, and report fearlessly on the excesses of government?
Hopefully, the new Members of Parliament will also reform the way Parliament works. The Government should ensure that they is more extensive public consultations, parliamentary scrutiny and debate before any new law is enacted. Thus, another key early step in this reform process should be a Green Paper on how to regulate the media. The government should seek ideas, input and suggestions on how best to nurture a free media, how best to protect private reputation in this digital age, and how best to ensure that Malaysia’s cultural sensitivities and norms are protected whilst protecting free speech rights.
I would venture to suggest that in so far as criminal sanctions go, we will find that existing provisions in the Penal Code (perhaps with some slight tweaking for the modern world) are probably more than sufficient to address any public order or morality concerns arising from the abuse of speech.
Proposed Legislative amendments
Immediate
Whilst full public consultation would be necessary for major reform, there are three laws that can be repealed immediately. These laws are the following:
- The Anti-Fake News Act 2018 – passed at lightning speed by the previous regime – is deficient in so many respects, and clearly a mechanism to stifle free speech. Section 505 of the Penal Code protects against false statements that cause disorder. This is more than sufficient protection.
- The Sedition Act 1948, which draws its inspiration from colonial era laws that were designed to suppress freedom fighters should be abolished. Many countries have already repealed or held similar laws to be unconstitutional – even Uganda! It’s high time we just got rid of this anachronism.
- Likewise, the criminal defamation provisions in the Penal Code (Chapter XXI, comprising sections 499 to 502) ought to be immediately repealed. They are unnecessary, and a far too onerous restriction on free speech. Again, we see that in Africa, Lesotho has declared it unconstitutional and the African Court of Human Rights has significantly curtailed criminal libel laws.
Get rid of the above right away, in the first sitting of Parliament.
Medium term
General statutes
I would suggest that the following laws should also be looked into, and significant public consultation be carried out to ensure the best balance is struck between protecting free speech, freedom of information and freedom of the press on the one hand, and the proportionate restrictions required to preserve national security, public order, public morality, and the reputation of individuals.
The Official Secrets Act 1972 must be amended in line with international human rights norms
A proper, federal level, Freedom of Information Act should be introduced (not just Selangor’s watered down version). State legislatures should then enact similarly extensive legislation to give the public more access to the decision making process.
I would also suggest repealing the Printing Presses and Publications Act 1984 in its entirety. It can be replaced with separate legislation to regulate the mass media, and – if considered necessary – to prohibit obscene publications. This new legislation to regulate the press could include establishing a Press Complaints Council to speedily address complaints relating to press coverage. Again, the vexed question of media ownership is also something we need more discussion on. I am in two minds as to whether we should separately regulate ownership of mass media organizations in addition to existing anti competition (anti trust, as it is known in the US) laws. For example, should Malaysia limit how much one person can own in a media organization or organizations? Should we prohibit political parties from owning media organizations? And what does it really mean to be a media organization? I feel these are far reaching questions, and more consultation and study should be done.
Communications and Multimedia Act
Section 233 of the CMA has been abused significantly to punish satirists and critics of the ruling regime. Section 233 should be amended to make it clear that it is only intended for spammers, online fraudsters, and the like. More importantly, a broad consultation must be done to consider the provisions regulating the licensing of broadcast media and telecommunication companies to make it easier for more entities to obtain broadcast privileges through free to air, satellite and cable channels for both television and radio. How best to ensure that the print and broadcast media give equal / proportionate coverage of all viewpoints, both in terms of reporting the Parliamentary and State Opposition parties and various NGO or individual opinions on public interest issues must also be looked at.
Libel laws
The common law tort of libel that is applied in Malaysia is also a relic of a different time. My view is that the continued application of the common law of libel is at odds with Article 10 of the Federal Constitution, which provides that Parliament is the one that is meant to make law to determine the balance between free speech and respecting the rights to reputation of others. Thus, I would suggest we abolish the common law tort of libel and replace it with a well regulated statutory tort. I would recommend enacting US style rules in relation to the defamation of persons considered “public figures”, especially those in government or politics, or holding positions of public trust. These rules mean that public figures must prove that the person making the defamatory statement was acting maliciously. In addition, I believe that a public figure must show that his or her reputation actually suffered, and actual loss was suffered. We should also legislate the defences of responsible communication that have evolved in recent years (also known as Reynolds privilege and reportage), though if US style rules were introduced, such a defence may well be academic. However, for individuals who are not public figures, different considerations ought to apply. There, perhaps the common law strikes the correct balance in assuming a good reputation and not requiring proof of actual damage. I would update the offer of amends procedure, include provisions to ensure that those who are defamed in newspapers or the broadcast media are given meaningful rights of reply.
Conclusion
There’s a lot more issues affecting the media, but I think the above are the main areas of concern. As I have stressed, many things should be done only after a series of public consultations and parliamentary debate. Reform is sorely needed, and if we do it right, we have the potential to set free the good journalists we have in Malaysia to finally be able to speak truth to power and report the news freely and fairly.