President, Malaysian Bar
The Malaysian Bar is aghast at the decision of the Malaysian Communications and Multimedia Commission (“MCMC”) — pursuant to Sections 233 and 263(2) of the Communications and Multimedia Act 1998 (“CMA”) — to deny public access to The Malaysian Insider (“TMI”) online news portal indefinitely.
MCMC announced the decision in its statement dated 25 February 2016, without giving any specific reason. However, it appears that MCMC has taken action against TMI because TMI allegedly published matters that have caused confusion. MCMC has not identified the offending publication(s) by TMI that caused this purported confusion.
Communications and Multimedia Minister Datuk Seri Panglima Dr Mohd Salleh Tun Said Keruak has reportedly said that TMI has been blocked as one of the articles published by it “... quoted a statement that could cause confusion because it contradicts with official statements by MACC. They don’t mention who the source is. It could confuse the public.”[1]
Causing public confusion is not, and cannot be, an offence under Section 233 of the CMA. MCMC’s reliance on Section 233 for its action against TMI is therefore without any basis, and oppressive. It is quite puzzling that anyone could consider causing public confusion to be an offence at all. It is also rather demeaning and offensive to assume that Malaysians will be “confused” merely as a result of contradictory statements in the press, or because the source of press statements was not disclosed.
Moreover, MCMC cannot invoke Section 263(2) of the CMA for the purpose of barring public access to websites on unjustifiable grounds. As a responsible regulator, MCMC must always act in accordance with the law and must not arrogate to itself powers that have not been conferred on it by Parliament. The action taken by MCMC against TMI appears to be unsustainable in law.
The recent and emerging pattern of MCMC’s reliance on the CMA to bar access to websites is alarming. It is seen as harassment and intimidation of the media, and targeting of contrary or dissenting voices in the public sphere. In July 2015, the whistleblower website, Sarawak Report, was blocked for allegedly publishing unverified information relating to the Prime Minister. Other websites such as Medium, Outsyed the Box, Tabunginsider, Jinggo Photopages, Din Turtle,Asia Sentinel and Malaysia Chronicle have also been blocked.[2] The legality of MCMC’s action under the CMA in respect of these other websites also appears to be questionable.
The right to information, or the right to know, is implicit in the guarantee of freedom of speech and expression that belongs to every citizen, as enshrined in Article 10(1)(a) of the Federal Constitution. Indeed, a true democracy envisages a meaningful right to know.[3] The blocking of access to websites is a serious curtailment of the right to know, as it thwarts the flow or dissemination of information, thoughts and ideas. This renders the constitutional guarantee in Article 10(1)(a) vacuous or meaningless.[4]
Further, a critical and complementary aspect of the fundamental right to freedom of speech and expression is contained in Article 19 of the Universal Declaration of Human Rights, which states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
In this regard, the freedom of the press is integral to freedom of speech and expression,[5] and is regarded as a necessary derivative of the right to know.[6] The media, whether publicly- or privately-owned, must be free to report on matters of public interest. Press freedom encourages transparency, accountability and an open society.[7] A free press is imperative to the credibility of any democratic system of government.
While it is recognised that the freedom of speech and expression is not absolute,[8] any restriction of this fundamental liberty cannot be founded on any arbitrary and unlawful exercise of power by the authorities. This would be nothing less than a frontal assault on the rule of law.
The Malaysian Bar urges the MCMC to abide by the Federal Constitution, respect the rule of law and immediately withdraw the prohibition of public access to the TMI online news portal.
1 March 2016
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[1] “Minister justifies TMI block, says due to contradictory report on MACC panel”, Malay Mail Online, 26 February 2016.
[2] (a) “Minister defends blocking medium.com, says it broke the law”, Malaysiakini, 4 February 2016.
(b) “Four more websites blocked by MCMC”, Malaysiakini, 28 January 2016.
(c) “Putrajaya blocks blogs that published leaked Tabung Haji letters”, The Malaysian Insider, 28 January 2016.
(d) “‘Years of work gone’ after MCMC blocks freelance journo’s site”, Malaysiakini, 28 January 2016.
(e) “Putrajaya blocks another news site critical of Najib”, Malaysiakini, 21 January 2016.
(f) “Malaysia Chronicle website blocked”, The Malaysian Insider, 24 October 2015.
[3] Justice JS Verma, “Freedom of Expression.” World of All Human Rights , Soli J. Sorabjee — A Festschrift. Ed. RN Trivedi. Universal Law Publishing Co Pvt Ltd, 2015, p.18.
[4] Ibid, p.18.
[5] Bennet Coleman v. Union of India, AIR 1973 SC 106.
[6] Justice JS Verma, op cit, pp.18-19.
[7] Ibid, p.19.
[8] Article 10(2)(a), Federal Constitution.
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