When the Malaysian Bar, at a General Meeting, passes a RESOLUTION - it is very powerful. It is an expression of all the members of the Malaysian Bar, which now is about 20,000 Malaysian lawyers. At the immediate past General Meeting, where the registered attendance was 1,268(far above the needed quorum of 500), it was a clear indication of how members felt the importance of the Motion/s being tabled.
'...The Malaysian Bar’s 75th Annual General Meeting (“AGM”) was held online and conducted virtually through live streaming and online remote voting via a Remote Participation and Voting (“RPV”) platform on 13 Mar 2021.A total of 1,268 Members registered their attendance at the AGM, which concluded at 4:58 pm...' - Malaysian Bar Website
If not for Covid-19 pandemic, lawyers from the Malaysian Bar would have already taken to the streets to uphold the cause of justice... This has been done several times, and when these peaceful assemblies, about 2,000 lawyers turn up in their suits and protest in the hot sun, and all for the cause of JUSTICE and Human Rights..
Resolution Regarding the Emergency (Essential Powers) Ordinance 2021
WHEREAS:
(1) In December 2019, cases of “viral pneumonia” were identified in Wuhan, People’s Republic of China (“China”), and subsequently reported to the World Health Organization (“WHO”).[1] Shortly after, it was identified as a new type of coronavirus (novel coronavirus, nCoV) and later termed by WHO as “COVID-19”.
(2) On 13 January 2020, the first case of COVID-19 in Thailand was reported.[2] By 27 January 2020, 11 countries (excluding China) reported laboratory confirmed COVID-19 cases, including Malaysia.[3] WHO declared the COVID-19 outbreak as a “Public Health Emergency of International Concern” on 30 January 2020.[4]
(3) In Malaysia, a Movement Control Order (“MCO”) was implemented on 18 March 2020 to 31 March 2020[5] following a steep rise in the number of cases. The order would be extended over the course of 2020 and 2021, to date, as follows:
MCO:
(a) 1 April 2020 to 14 April 2020;[6]
(b) 15 April 2020 to 28 April 2020;[7]
(c) 29 April 2020 to 12 May 2020;[8]
Conditional MCO: On 1 May 2020, the Prime Minister, YAB Tan Sri Muhyiddin Yassin (“Prime Minister”) announced the implementation of a Conditional MCO, beginning 4 May 2020. The daily number of COVID-19 positive cases on 1 May 2020 stood at 69 (compared to 117 on 18 March 2020),[9] whilst total positive cases numbered at 6,071.[10]
(d) 13 May 2020 to 9 June 2020;[11]
Recovery MCO: On 7 June 2020, the Prime Minister announced that the Conditional MCO would end on 9 June 2020, and the Recovery MCO would be implemented, beginning 10 June 2020. The daily number of COVID-19 positive cases on 9 June 2020 stood at 7, whilst total cases numbered at 8,336.[12]
(e) 10 June 2020 to 31 August 2020, and subsequent extensions.[13]
(4) In addition, localised places would be put under Enhanced MCO as the need arose.
(5) In September 2020, Malaysia witnessed a surge in the number of COVID-19 positive cases. This has been attributed to the snap Sabah state elections which took place on 26 September 2020.[14] On 3 October 2020, the daily number of positive cases stood at 317[15] — the highest single-day report of confirmed cases, at that time, since the start of the outbreak[16]. This figure would continue to climb in the ensuing weeks.
(6) On 23 October 2020, the Prime Minister sought an audience with His Majesty the Yang di-Pertuan Agong on the declaration of a state of emergency under Article 150(1) of the Federal Constitution by reason of the COVID-19 pandemic. On 25 October 2020, the Yang di-Pertuan Agong, in a statement released by the Istana Negara in the national language, expressed that “tiada keperluan buat masa ini untuk … mengisytiharkan darurat di negara ini atau mana-mana bahagian negara Malaysia.”[17]
(7) The Malaysian Bar, on 23 October 2020, released a statement stating that a declaration of Emergency is unwarranted, as there are existing laws and mechanisms in place to manage the COVID-19 pandemic, such as the Prevention and Control of Infectious Diseases Act 1988 (Act 342) (“PCIDA”), which provides the Government with wide-ranging powers.
(8) During the months of October to December 2020, Sabah, Selangor and the Federal Territories of Kuala Lumpur and Putrajaya, were placed under Conditional MCO again due to the rise in daily reported COVID-19 positive cases. The daily number of positive cases on 31 December 2020 stood at 2,525, whilst total cases numbered 113,010.[18]
(9) By the end of January 2021, the MCO was reintroduced to all states except Sarawak.
(10) On 11 January 2021, following an audience granted to the Prime Minister[19] and upon the Prime Minister’s advice, the Yang di-Pertuan Agong issued a Proclamation of Emergency pursuant to Article 150(1) of the Federal Constitution to declare a state of Emergency for the whole Federation effective from 11 January 2021 to 1 August 2021 (“Proclamation of Emergency”).[20] The Emergency (Essential Powers) Ordinance 2021 (“Emergency Ordinance”)[21] was also promulgated on 14 January 2021, coming into operation on 11 January 2021.
(11) The Malaysian Bar, on 13 January 2021, released a statement maintaining its view that the PCIDA and other pieces of legislation were sufficient for the Government to manage the COVID-19 pandemic, and that its request for an Emergency Declaration appeared to be overblown. In a subsequent statement on 15 January 2021, we then highlighted our concerns arising out of the Emergency Ordinance, which afforded wide-ranging powers to the Executive branch.
(12) Provisions of the Emergency Ordinance that are particularly concerning are:
(a) Suspension of Federal and State legislative proceedings (sections 14 and 15);
(b) Suspension of Federal and State elections (sections 12 and 13);
(c) Entrenchment of the position of the current Executive at Federal and State levels (section 11);
(d) Vast powers afforded to the armed forces (section 7);
(e) Vast powers to temporarily take possession of any land, building or movable property (section 3) and to demand for the use of resources for any purpose (section 4). The assessment of compensation in these circumstances cannot be challenged by the Courts — an “ouster clause” (section 5); and
(f) An “immunity provision” (section 10) which seeks to shield the Government from any acts taken in carrying out the provisions of the Emergency Ordinance. The qualification that such acts must be done in “good faith” does not provide sufficient redress, as it still affords the Government with immunity in situations of negligence.
(13) The Malaysian Bar is holding a watching brief in five suits which have since been filed in relation to the Proclamation of Emergency and the Emergency Ordinance. These suits were commenced by the following parties:
(a) Non-governmental organisations (“NGOs”) and human rights groups, namely BERSIH 2.0, Suara Rakyat Malaysia (“SUARAM”), Centre for Independent Journalism (“CIJ”), ALIRAN, Kuala Lumpur and Selangor Chinese Assembly Hall (“KLSCAH”), Pergerakan Tenaga Akademik Malaysia (“GERAK”) and SAVE Rivers;
(b) Hassan b Abdul Karim;
(c) Datuk Seri Salahuddin b Ayub, Dato’ Johari b Abdul, and Abdul Aziz b Bari (commonly referred to as the “Pakatan lawmakers suit”);
(d) Dato’ Seri Anwar b Ibrahim; and
(e) Khairuddin b Abu Hassan.
(14) Article 150(1) of the Federal Constitution provides for a Proclamation of Emergency only where a grave emergency exists, that is, where the security, economic life or public order of the Federation is threatened.
(15) It should not be sought or invoked lightly as it effectively results in vast powers being placed at the hands and control of the Executive. The provisions of the Emergency Ordinance are drafted in a broad manner, and therefore present the potential and risk of abuse.
(16) While it is recognised that during a health crisis, the normal functioning of society cannot be maintained, and that as a result of health measures taken, some rights and freedoms which ordinarily form an integral and necessary part of a democratic society will inevitably be encroached upon (such as in relation to movement), it remains vital that the fundamental values of democracy, rule of law and human rights standards are to be maintained, and any derogations thereto are necessary and proportional.
(17) The Government has, since the beginning of the outbreak, effectively utilised its powers under PCIDA to manage the COVID-19 pandemic. Powers under PCIDA include:
(a) declaring an area as an infected local area (section 11);
(b) prescribing measures to be taken to control or prevent the spread of the disease within or from an infected local area (subsection 11(2)) — such as restrictions in movement as imposed by the MCO;
(c) directing any person or class or category of persons living in an infected local area to subject themselves to isolation, observation or surveillance, and any other measures considered necessary to control the disease (subsection 11(3));
(d) temporary requisitioning of premises (section 26);
(e) mobilising the police, customs and immigration officers, and officers from other government departments and agencies, to assist for the purposes of exercising any powers and/or regulations made, under PCIDA (section 5); and
(f) penalties and fines.
(18) The MCO, Enhanced MCO, Conditional MCO and Recovery MCO contain sufficient enforcement and adequate measures to manage the spread of COVID-19 in the infected local areas.
(19) It is incumbent on the Government to satisfactorily justify its decision for implementing a state of Emergency, and for resorting to suspending Parliament.
(20) In particular, section 14 of the Emergency Ordinance is unprecedented in the history of Malaysia. This is the sole occasion[22] where Parliament has been expressly suspended by reason of an emergency.
(21) Such derogation from the rule of law is neither necessary nor proportional. Emergency powers should not result in a carte blanche of the Legislature’s powers being exercised by the Executive, particularly where the circumstances do not call for such extreme measures.
(22) Adequate health and safety measures can be taken to ensure that sittings of Parliament carry on in a manner that is compliant with the recommended standard operating procedures (“SOPs”), as opposed to a blanket and total suspension for so long as the Emergency is in force (unless otherwise summoned by the Yang di-Pertuan Agong).
(23) The earlier localised proclamations of Emergency and ordinances promulgated in Batu Sapi[23] and Bugaya[24] in Sabah, and in Gerik, Perak[25] in 2020, were made without a need to suspend Parliament or the Sabah State Legislative Assembly.
(24) It is recognised that the Legislature fulfils core functions of representation, law-making and oversight. Legislative oversight, in particular, seeks to ensure that the Executive remains responsive and accountable for its actions — a check and balance.
(25) The Legislature also provides the necessary counterbalance to the Executive’s powers during an emergency and functions to verify whether such emergency powers are still justified throughout the relevant period. Thus, Article 150(3) of the Federal Constitution stipulates that the Proclamation of Emergency and any ordinance promulgated shall be laid before both Houses of Parliament.
(26) Furthermore, as held by the Privy Council in Teh Cheng Poh,[26] even while a Proclamation of Emergency is in force, where any further laws are required by reason of the Emergency, Parliament may, pursuant to its legislative authority under Article 44 and by reason of Articles 150(5) and (6) of the Federal Constitution, make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency.
(27) Thus, the doctrine of separation of powers, which forms the basic structure of our Federal Constitution (as recognised by the Judiciary in Semenyih Jaya,[27] Indira Gandhi,[28] and Alma Nudo Atenza[29]) is upheld even during an Emergency. Article 150 of the Federal Constitution envisages a functional Parliament, playing a critical role during the administration, and oversight, of an Emergency — such as guaranteeing transparent debate, ensuring accountability of the Government, and scrutinising the passing of laws, during a pandemic.
(28) As expressed by the Yang di-Pertuan Agong[30] at an audience granted to the Yang di-Pertua (President) of the Dewan Negara, YB Senator Tan Sri Dato’ Seri Utama Dr. Rais Yatim, and the Yang di-Pertua (Speaker) of the Dewan Rakyat, YB Datuk Azhar Azizan Harun on 24 February 2021, the Emergency Ordinance allows Parliament to convene during the Emergency on a date as the Yang di-Pertuan Agong thinks appropriate upon the Prime Minister’s advice. The Yang di-Pertuan Agong also emphasised that Malaysia practices a system of democracy that is based on the principle of supremacy of the Constitution. As such, each branch of the administration — the Executive, Judiciary, and Parliament — must abide by that principle.
(29) The incapacitation of Parliament is therefore unnecessary, irrational, unreasonable and/or disproportionate for the purposes of combating the COVID-19 outbreak. It is repugnant to the Federal Constitution, rendering it impossible to give effect to the intent and spirit of Articles 150(3) and 150(5).
(30) The Executive should not usurp the legislative powers that rightfully vests in Parliament, nor should it be shielded from the necessary scrutiny it would normally be subjected to before Parliament. It is during times of crisis that public confidence in the legitimacy of the administration and its decisions must be assured and protected, warranting a higher threshold of accountability through, for example, legislative oversight.
THEREFORE, the Malaysian Bar hereby resolves that:
(A) The Emergency Ordinance, including sections 14 and 15, is invalid and unconstitutional;
(B) The Malaysian Bar calls upon the Government to take the immediate necessary and/or appropriate steps to advise the Yang di-Pertuan Agong to summon a meeting of Parliament, and for the Proclamation of Emergency and the Emergency Ordinance and/or any subsequent ordinances, to be laid before Parliament in accordance with Article 150(3) of the Federal Constitution; and
(C) The Malaysian Bar mandates the Bar Council to take any and all steps that it deems necessary and/or appropriate regarding the aforesaid Proclamation of Emergency and the Emergency Ordinance, including instituting legal proceedings, for and on behalf of the Malaysian Bar, to challenge the validity of the Proclamation of Emergency and/or the Emergency Ordinance and/or any subsequent ordinances; to seek interim and/or permanent reliefs, as may be deemed necessary; and to give effect to the resolutions above.
[1] Rolling updates on coronavirus disease (COVID-19) (31 July 2020), updated 31 July 2020. World Health Organization. Retrieved from: who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen.
[2] Ibid.
[3] Epidemiological Update Novel coronavirus (2019-nCoV) (27 January 2020). Pan American Health Organization. Retrieved from: tinyurl.com/3c6se282.
[4] Rolling updates on coronavirus disease (COVID-19) (31 July 2020), updated 31 July 2020. World Health Organization. Retrieved from: who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen.
[5] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 [P.U.(A) 87/2020], and Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 [P.U.(A) 91/2020].
[6] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) Order 2020 [P.U. (A) 98/2020].
[7] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 2) Order 2020 [P.U.(A) 116/2020].
[8] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 3) Order 2020 [P.U.(A) 132/2020].
[9] Situasi Terkini 18 Mac 2020 (18 March 2020). Kementerian Kesihatan Malaysia. Retrieved from: covid-19.moh.gov.my/terkini/032020/situasi-terkini-18-mac-2020.
[10] Situasi Terkini 1 Mei 2020 (1 Mei 2020). Kementerian Kesihatan Malaysia. Retrieved from: covid-19.moh.gov.my/terkini/052020/situasi-terkini-01-mei-2020.
[11] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 4) Order 2020 [P.U.(A) 146/2020].
[12] Situasi Terkini 9 Jun 2020 (9 June 2020). Kementerian Kesihatan Malaysia. Retrieved from: covid-19.moh.gov.my/terkini/062020/situasi-terkini-09-jun-2020.
[13] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 5) Order 2020 [P.U.(A) 180/2020]. The order would be further extended to 31 March 2021, via the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 6) Order 2020 [P.U.(A) 253/2020] and Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 7) Order 2020 [P.U.(A) 399/2020].
[14] “PM admits Sabah election among causes of spike in COVID-19 cases”, Bernama, 6 October 2020. Retrieved from: https://www.astroawani.com/berita-malaysia/pm-admits-sabah-election-among-causes-of-spike-in-covid19-cases-262477.
[15] Situasi Terkini 3 Oktober 2020 (3 October 2020). Kementerian Kesihatan Malaysia. Retrieved from: covid-19.moh.gov.my/terkini/102020/situasi-terkini-03-oktober-2020.
[16] “Malaysia: Coronavirus Disease 2019 (COVID-19) Situation Report. Weekly report for the week ending 4 October 2020”, 6 October 2020. World Health Organization: Representative Office for Malaysia, Brunei Darussalam, and Singapore. Retrieved from: who.int/malaysia/internal-publications-detail/covid-19-in-malaysia-situation-report-20.
[17] Kenyataan Media, 25 Oktober 2020. Dato’ Indera Ahmad Fadil Shamsuddin, Datuk Pengelola Bijaya Diraja, Istana Negara. Retrieved from: https://tinyurl.com/csk3vm2m.
[18] Situasi Terkini 31 Disember 2020 (31 December 2020). Kementerian Kesihatan Malaysia. Retrieved from: covid-19.moh.gov.my/terkini/122020/situasi-terkini-covid-19-di-malaysia-31122020.
[19] Speech text of the Special Announcement of Emergency: YAB Tan Sri Dato’ Haji Muhyiddin b Haji Mohd Yassin, Prime Minister of Malaysia, 12 January 2021. Retrieved from: pmo.gov.my/2021/01/teks-ucapan-pengumuman-khas-darurat/.
[20] Proclamation of Emergency [P.U.(A) 7/2021].
[21] Emergency (Essential Powers) Ordinance 2021 [P.U.(A) 12/2021].
[22] Whilst Parliament did not sit for a period of two years (1969 to 1971) as a result of the 13 May 1969 racial riots, this was due to the interruptions (caused by the riots) to the General Election which took place at that time. Parliament was dissolved on 20 March 1969, General Election was held on 10 May 1969, the riots ensued on 13 May 1969, and the Yang di-Pertuan Agong proclaimed a state of Emergency under Article 150 of the Federal Constitution (P.U. (A) 145/1969) on 15 May 1969. Pursuant to section 7 of the Emergency (Essential Powers) Ordinance 1969 (P.U.(A) 146/1959), elections to the Dewan [Rakyat] and the Legislative Assembly of any State which had not been completed, would be suspended until such date as the Yang di-Pertuan Agong might determine. Parliament resumed on 20 February 1971 (The Straits Times, 20 February 1971, page 14 from National Library Board, Singapore).
[23] Proclamation of Emergency (P.U (A) 329/2020) and Emergency (Essential Powers) Ordinance 2020 (P.U. (A) 330/2020).
[24] Proclamation of Emergency (No. 3) (P.U (A) 358/2020) and Emergency (Essential Powers) (No. 2) Ordinance 2020 (P.U. (A) 359/2020).
[25] Proclamation of Emergency (No. 2) (P.U (A) 356/2020) and Emergency (Essential Powers) (No. 2) Ordinance 2020 (P.U. (A) 357/2020).
[26] Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50, Privy Council.
[27] Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 4 MLRA 554, Federal Court.
[28] Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak [2018] 2 MLRA 1, Federal Court.
[29] Alma Nudo Atenza v PP & Another Appeal [2019] 5 CLJ 780, Federal Court.
[30] Kenyataan Media (24 Februari 2021). Dato’ Indera Ahmad Fadil Shamsuddin, Datuk Pengelola Bijaya Diraja, Istana Negara. Retrieved from: tinyurl.com/573vr8zd.
The motion was proposed by Salim Bashir (Chairman, Bar Council), on behalf of the Bar Council.
Source: Malaysian Bar Website
The RESOLUTIONS Adopted can be viewed here
Malaysian Bar mulling lawsuit to challenge ‘fake news’ Ordinance, Emergency Proclamation and others
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KUALA LUMPUR, March 13 — The Malaysian Bar is looking to file a lawsuit to challenge the Emergency (Essential Powers) (No. 2) Ordinance 2021, together with the Emergency Proclamation and other Ordinances, its new president AG Kalidas said today.
In a press conference this evening after being elected as president for the 2021/2022 term, Kalidas said that this was also the will of Malaysian Bar members.
“As the motion which has been carried today, insofar as the Proclamation is concerned and also the respective Ordinances, the Malaysian Bar has mandated us to initiate suits relating to the matter, or do what is necessary.
“So our stand is, we will be taking this up in the right channel. Most probably, I mean very likely, there will be a suit initiated by the Malaysian Bar.
“I’m not touching on the second Ordinance, we will call it Ordinance number two. Not touching on that alone, basically, the Malaysian Bar believes in freedom of speech. Of course, there are boundaries to freedom of speech and we also believe in that. You cannot be alleging something which is not true. So we know the boundaries but we believe that people must be allowed to speak,” Kalidas added.
The newly-gazetted Emergency (Essential Powers) (No. 2) Ordinance 2021 criminalises the creation and publishing of fake news.
According to the new Ordinance that took effect on March 12, individuals found guilty of creating or publishing fake news on Covid-19 or the Emergency proclamation could now face a fine of up to RM100,000 and imprisonment.
Media groups and Opposition lawmakers have since expressed concern over the provision; that it may be used as an arbitrary weapon to silence critics of the Perikatan Nasional (PN) government.
DAP veteran Lim Kit Siang had earlier today also urged the Attorney-General to provide clarity on the move to prosecute any individuals who claim that the Emergency Ordinance called by Prime Minister Tan Sri Muhyiddin Yassin was done to save his skin.
He questioned the law and its execution and asked why it was not gazetted by the Cabinet.
Lim said a period of time should have been given for public feedback before enacting the law.
The MP for Iskandar Puteri was commenting on de facto Law Minister Datuk Seri Takiyuddin Hassan’s remarks yesterday that it was a criminal offence under the Ordinance, for anyone to allege that Muhyiddin had called for the Emergency because he lost the majority in Parliament and that they can be fined RM100,000, jailed for up to three years or both.
He asserted that Takiyuddin is not part of the judiciary and questioned the legitimacy of his claim.
Takiyuddin had in a press conference yesterday, assured Malaysians that the new Emergency (Essential Powers) (No. 2) Ordinance 2021 gazetted to curb the spreading of ‘fake news’ will not be used once the nationwide state of Emergency is lifted.
He stressed that this is stated very clearly at the end of the document that the Ordinance will only last as long as the state of Emergency is in effect.
The Emergency Proclamation meanwhile, came into effect in January.
The gazettement is dated January 14, but takes retrospective effect from January 11, the day Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah issued his proclamation of Emergency under Article 150 (1) of the Federal Constitution to safeguard the country from the economic threat posed by the Covid-19 pandemic.
Last month, a group of seven non-governmental organisations joined a growing number of court challengers against the Perikatan Nasional (PN) government’s recourse to a nationwide state of Emergency, arguing that parliamentary consent is required to do so.
The group comprises Bersih 2.0, Suara Rakyat Malaysia, the Center for Independent Journalism (CIJ) , Aliran, the Kuala Lumpur and Selangor Chinese Assembly Hall, Pergerakan Tenaga Akademik Malaysia, and Save Rivers.
Their suit was filed by the legal firm AmerBON Advocates at the High Court.
The group’s action follows two initial lawsuits challenging the validity of the Emergency proclamation, most notably by Opposition Leader Datuk Seri Anwar Ibrahim and Datuk Seri Khairuddin Abu Hassan, a politician known to be aligned to former prime minister Tun Dr Mahathir Mohamad.
Anwar’s suit filed on January 26, challenged Muhyiddin’s advice to the Agong to declare Emergency, the suspension of Parliament, and the postponement of elections for the duration of the Emergency.
Khairuddin’s suit filed last January 29, similarly claims that
Muhyiddin did not have the parliamentary legitimacy to advise the King
to declare an Emergency on grounds that the Pagoh MP no longer commanded
the majority in the Dewan Rakyat at that time.- Malay Mail, 13/3/2021
Bar Council mandated to initiate suits related to emergency, says new president
The Malaysian Bar has mandated the Bar Council to take any and all steps that it deems necessary regarding the proclamation of emergency and the emergency ordinances, according to a resolution passed today by its members at their 75th AGM.
The Malaysian Bar's newly-elected president AG Kalidas (above, left) later told reporters the steps could include instituting related legal proceedings on behalf of the body.
“As for the motion which has been carried today, insofar as the proclamation is concerned and also the respective ordinances, the Malaysian Bar has mandated us to initiate suits relating to the matter or do what is necessary.
"So our stand is, so far as we are concerned, we will be taking this up in the right channel. Most probably, I mean very likely, there will be a suit initiated by the Malaysian Bar," he said during a press conference at the Wisma Badan Peguam in Kuala Lumpur.
He said this when asked about the Malaysian Bar's stand on fears over the latest Emergency (Essential Powers) (No. 2) Ordinance 2021, which came into force yesterday to curb the dissemination of "fake news" on Covid-19 and the emergency proclamation.
"I’m not (only) touching on the second ordinance, we will call it ordinance number two. Not touching on that alone, but basically, the Malaysian Bar believes in freedom of speech.
"Of course, there are boundaries to freedom of speech and we also believe in that. You cannot be alleging something which is not true," Kalidas said.
"We know the boundaries but we believe that people must be allowed to speak," he added.
Amid concerns raised over the wide-ranging reach of the new 'fake news' ordinance, Communications and Multimedia Minister Saifuddin Abdullah yesterday critics should not overstretch its provisions beyond the government's intended focus on Covid-19 and the emergency.
According to the new ordinance that took effect on March 12, individuals found guilty of creating or publishing fake news on Covid-19 or the emergency proclamation could now face a fine of up to RM100,000 and imprisonment.
Meanwhile, the Malaysian Bar also passed several other resolutions related to the motion, one being the Emergency Ordinance, including sections 14 and 15, being invalid and unconstitutional.
Aside from initiating related legal proceedings, the Bar Council is also mandated to challenge the validity of the emergency proclamation, the Emergency Ordinance and any subsequent ordinances as well as to seek interim or permanent reliefs as deemed necessary.
The Malaysian Bar also called upon the government to take necessary steps to advise the Yang di-Pertuan Agong to summon a meeting of Parliament and for the emergency proclamation, Emergency Ordinance and other subsequent ordinances to be tabled in accordance with Article 150(3) of the Federal Constitution.
On Thursday, the High Court in Kuala Lumpur ruled that the Yang di-Pertuan Agong’s proclamation and the ordinances enacted under the emergency law could not be challenged in any court of law.
High
Court judge Ahmad Kamal Mohd Shahid said this was provided for under
Article 150(8) of the Federal Constitution which among others states
that the Yang di-Pertuan Agong’s decision over the proclamation of
emergency shall be final and conclusive and shall not be challenged or
called into question in any court on any grounds. - Malaysiakini, 13/3/2021
Bar ‘very likely’ to challenge new law on fake news
PETALING JAYA: The Bar Council is “very likely” to initiate a suit challenging a new law against “fake news” that came into force on Friday.
Newly-elected Bar Council president AG Kalidas Krishnan said the filing of the suit reflected the will of members of the Malaysian Bar.
“The Malaysian Bar has mandated us to initiate a suit relating to the matter, or do what is necessary. So our stand is, we will be taking this up in the right channel. Most probably, I mean very likely, there will be a suit initiated by the Malaysian Bar,” he was quoted as saying.
He said the Bar upheld freedom of speech but acknowledged that there were boundaries. “You cannot be alleging something which is not true. So we know the boundaries but we believe that people must be allowed to speak,” he said, the Malay Mail reported.
The new law against fake news about Covid-19 or the emergency proclamation, contained in a new emergency ordinance, provides penalties of a fine of up to RM100,000 and imprisonment.
Former Bar president Salim Bashir had said on Thursday that a section of the ordinance was “highly objectionable as it mandates the accused to put forward a statement of defence before trial. This might have an effect of depriving the accused of his right to put in his defence during trial, and not to disclose it anytime before trial starts, as any other ordinary trial”.
He also took issue with other sections to do with statements made by
an accused and the denial of the right to challenge how documentary
evidence was obtained. - FMT, 13/3/2021
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