A Covid-19 swab test during an active case detection programme in Sarawak.
KUCHING (Mar 20): The Advocates Association of Sarawak (AAS) has called for an immediate withdrawal or review of the Emergency (Essential Powers) (No.2) Ordinance 2021 that aims to combat fake news relating to Covid-19 or Emergency Proclamation.
Its president, Antonio Sim, said the ordinance, which came into force on March 12, appeared to erode freedom of speech and expression as enshrined in Article 10 of the federal Constitution.
“The ordinance appears to criminalise the act of creating, publishing, or disseminating any ‘fake news’ in relation to Covid-19 or the Emergency Proclamation in the country, application of which extends to anyone violating its terms anywhere in the world,” he said in a statement.
He also said the wide definition of ‘fake news’ as stated in the ordinance was far reaching and appeared to be indefinite.
Furthermore, Sim said the scale of punishment under the ordinance appeared to be unnecessarily and disproportionately severe and excessive in light of the difficult and uncertain times facing the public.
“The ordinance instead should have allowed for the courts to exercise its discretion over the amount of fines on a case-by-case basis rather than creating limitations on sentencing with such harsh sentences.”
Under the law, individuals who create or publish fake news on Covid-19 or the Emergency proclamation could face a fine of up to RM100,000 and imprisonment.
Sim also said the ordinance excluded and override the provisions of the Evidence Act 1950 in that evidence obtained was admissible under the ordinance.
“This amounts to a desecration of the existing protection granted to the people under the criminal procedures and risks violating the people’s right to a fair trial.”
Also, under the ordinance, Sim said a police officer had been granted with wide powers to gain access to computerised data and seize the same, and refusal of to give password was categorised as an offence.
“Any list of documents and things seized howsoever obtained shall be admissible in court as evidence. Such laws appear to disregard the public’s right to privacy and may well be subject to abuse.”
He added the ordinance also bore a resemblance to the Anti-Fake News Act 2018 that was passed by the government just before the 14th General Election in 2018 and subsequently repealed by the Pakatan Harapan government.
As a result, Sim said the association strongly believed that under human rights laws, the government of the day owed an obligation and duty to protect the right to freedom of expression of its citizens.
“Laws aiming to restrict or curtail this particular right should and can only be imposed if these restrictions are provided by law, written in clear unambiguous terms and language, which leaves little or no doubts on its ambit and application and prohibitions.”
Sim said such laws should only be passed and imposed when it becomes strictly necessary and proportionate to achieve a legitimate aim, such as for the protection of national security, public order, public health or morals, or the rights of others.
“The ordinance, sadly, falls short. The lack of clarity from the ordinance, whereby it fails to set clear and proper requirements to specify the ambit of ‘fake news’, what amounts to ‘prohibited content’ and that it must be material and cause real harm to legitimate interests, failures of which are antithesis to human rights and democracy.”
Thus, Sim said the association was concerned that the government’s decision to push through the ordinance was a step backwards and it reiterated all relevant stakeholders must be consulted before any legislation is introduced during the period of the Emergency Ordinance.
“Especially so where fundamental liberties under the Federal Constitution appear to be eroded. AAS calls for the immediate withdrawal and/or review of the ordinance,” said Sim.
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