Thursday, June 01, 2023

Public Prosecutor Idrus Harun - Will he discontinue the criminal case and the other appeal against Deputy PM Zahid Hamidi?

There are those in Malaysia that believes that the Public Prosecutor is NOT INDEPENDENT - and will do whatever the government of the day 'orders' - I choose to want to believe that the Malaysian Public prosecutor is INDEPENDENT, and will always act professionally... in the administration of criminal justice.

They will not 'sabotage their own cases by failing to submit all evidence - whereby court will at the end of the day will be unable to find the accused guilty....because prosecution failed to prove guilt beyond reasonable doubt. 

They will NOT simply discontinue cases mid-stream, and the end result maybe that the court will acquit the accused - thus that accused can never ever be charged again for the same offense.

Malaysian Deputy Prime Minister Zahid Hamidi has sent a representation to the Attorney-General’s Chambers (AGC) to have his graft charges dropped, the Kuala Lumpur High Court was told.

It is true that any accused can sent a representation to the Public Prosecutor at any time, and the Public Prosecutor is duty bound to consider the representation and decide - i.e. to 'discontinue' prosecution, or continue with prosecution.  

Attention on this case is high because the ACCUSED here is the now new Deputy Prime Minister and current leader of the Barisan Nasional and UMNO.

What be interesting is the words used in several media reports, ... instructed by whom?

He[Deputy Public Prosecutor Abdul Malik Ayob] also confirmed that the prosecution was instructed not to object to a postponement - Straits Times, 10/4/2023

He also confirmed that the prosecution was instructed not to object to a postponement.  - Star

So, the question is - WHO INSTRUCTED THE PROSECUTION NOT TO OBJECT TO THE POSTPONEMENT? Well, the MalaysiaNow report suggests that it was the Attorney General(who is also the Public Prosecutor) Idrus Harun, and that is great. Is the Public Prosecutor Idrus Harun FREE from outside 'orders/instructions'?

"My instructions (from the attorney-general) was not to object to this application for adjournment. The letter was voluminous and had complex issues to be considered," he said, citing also the length of the letter which he said was 200 pages long. 
Is it common for the Public Prosecutor himself to 'instruct' a Deputy Public Prosecutor(DPP) conducting a criminal trial? Is he acting on his OWN - or acting on the 'orders' of the another?

The 2nd oddity is the fact that '... AGC also received a letter attached to the representation from the Malaysian Anti-Corruption Commission (MACC), stating it would investigate the new issues raised by Ahmad Zahid's defence. ...' - normally after representation to AGC, then only will the AGC ask the MACC to investigate further if needed. But here, it seems that MACC may have acted on its own.... and Zahid's lawyers can attach this MACC letter in there representation. Strange..but maybe media reports not that accurate.

In this matter, is the fact that Idrus Harun term of office as Attorney General been extended for another year has any 'bearing' with these cases? Following trend of immediate past governments, where a new government will appoint a NEW AG - what Anwar did was interesting >>> extending the term of Idrus Harun(now 67 years old) for a year.

The Malaysian government today announced that Tan Sri Idrus Harun has been reappointed as the attorney general (AG), and that he would be serving one year under the latest appointment....Today’s announcement came after Idrus’s two-year term as attorney general was to officially end on Sunday (March 6). 

Recall that former attorney-general Mohamed Apandi Ali, in then Najib's government, came out publicly saying that Najib Razak did not commit any crime in connection with 1MDB- only to be proven wrong later when the Federal Court affirmed Najib's conviction. It was the new Attorney General/Public Prosecutor Tommy Thomas that subsequently charged Najib in court.

The question that arose then, and is still relevant today is HOW Independent are the Attorney General(also Public Prosecutor) from the current government? the current Prime Minister? 

Do the government(or Prime Minister) decide who will be charged in court and who will not be? Which cases will the prosecution DISCONTINUE mid-stream, and 'support' an application for an acquittal? Which decisions will the prosecution APPEAL and which will they discontinue the appeal?

Many believe that the PUBLIC PROSECUTOR must always act independently, and seen to be acting independently - especially free from the influence or 'instructions' of the current PM or government. 

Zahid is the Deputy Prime Minister - the leader of UMNO/BN, which Anwar and his Pakatan Harapan coalition NEEDED to form and maybe sustain this 'Unity Government'....and many wonder all cases against UMNO/BN and even PH leaders(or friends) may be slowly dropped one way or another...

BUT in this Akalbudi case, the High Court has already decided that the prosecution had proved its case - and Zahid Hamidi was called to enter his Defence. So, here Zahid Hamidi has the difficult task of proving his innocence... and if he FAILS to raise reasonable doubt, the High Court will convict and sentence him...

Justice Collin Lawrence Sequerah ruled on Monday (Jan 24) that the prosecution had proven a prima facie case against the Umno president after a maximum evaluation of the evidence."I call upon the accused to enter his defence on all charges," he said in a brief decision.- Star, 24/1/2022
Now, Zahid Hamidi can present all these 'new evidence' and arguments in court and the Court will decide whether he is guilty, whereby he will be convicted and sentenced.

However, by putting in a Representation to the Public Prosecutor asking that the case be discontinued means taking away the decision making from the Judge and the Court > now, it is up to the Public Prosecutor ALONE to decide whether to discontinue prosecution at this stage..... or not.

If the Public Prosecutor(Attorney General) decide to discontinue prosecution - then Zahid's lawyer will most likely apply to the Judge to grant an ACQUITTAL. Normally, a discontinuance leads to a DNAA - Discharge Not Amounting To An Acquittal >> which means at any time later, the prosecution can recommence prosecution. The JUDGE also have the power to give an ACQUITTAL - so, it will be up to the Judge. An acquittal means Zahid Hamidi will never be able to be charged and tried for the same or similar offences in the future EVEN if new and additional evidence of guilt is discovered.

'Security of Tenure' is a safeguard to ensure independence - but this is absent when his appointment is by fixed-term contracts, noting that our AG has passed the retirement age of 65(or is it 60 for the AG or Public Prosecutor). 

In this Zahid Hamidi cases, the fact that MACC seems to have started investigation, possibly even before the Public Prosecutor asked them to brings us to another fact - the extension of contract of the MACC chief...

Tan Sri Azam Baki (picture) has been reappointed as Malaysian Anti-Corruption Commission (MACC) chief commissioner for a period of one year, with effect from May 12, said Chief Secretary to the Government Tan Sri Mohd Zuki Ali. -Malaysian Reserve, 10/5/2023

Remember that Azam Baki scandal - the questions, amongst others, was whether Azam Baki committed a misconduct as Public Officer when he had more than RM100,000 shares? Other than that was the issue of workings of the 5 check and balance committees/etc - the failure of one of these 'Task Force' meeting despite a member, Terence Gomez, raising the matter with the Chair - all in all, the whole matter remains undealt with - and Anwar Ibrahim to date failed to address it. Most expected that PM Anwar and the PH-led government would have appointed a NEW MACC Chief, and not retain Azam Baki...

Has this anything to do with the Zahid Hamidi's 're-investigation' or investigation of new matters... Frankly it matters not, as the HIGH COURT already did a maximum evaluation of evidence already presented by prosecution and decided  'the prosecution had proven a prima facie case against the Umno president after a maximum evaluation of the evidence.

With regard the Zahid Hamidi's case, there are 2 representations

## Representation to have his graft charges dropped in this 'Akalbudi' case

## Representation to withdraw the appeal in the foreign visa system (VLN) case, where the prosecution has appealed to the Court of Appeal

Tan Sri Idrus Harun, our current Public Prosecutor, is thus in the LIMELIGHT - will he act independently and professionally which will improve PUBLIC PERCEPTION of the Public Prosecutor and Prosecution in Malaysia> OR will he end up being perceived as 'listening to his political masters' - hence not an independent public prosecutor.

Malaysian Judiciary, the Public Prosecutor and also Law Enforcement Must Always Be Seen To Be Independent - They must act even against the Prime Minister if he/she breaks the law...that is what Malaysia expects.

We are watching ... 

 

Zahid seeks to have YAB charges dropped, trial postponed to Aug 1

By NURBAITI HAMDAN Nation
Monday, 10 Apr 2023 11:50 AM MYT

KUALA LUMPUR: Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi has sent a representation to the Attorney General's Chambers (AGC) to have his graft charges in the trial involving misappropriation of funds from Yayasan Akalbudi (YAB) dropped, the High Court was told.

His lawyer Hamidi Mohd Noh told this to Court of Appeal judge Justice Collin Lawrence Sequerah, who is presiding at the High Court, citing "new facts and evidence" in the case.

Hamidi sought for the trial, which was to resume on Monday (April 10), to be postponed because of the latest development and to wait for the decision on the representation.

According to Hamidi, the representation letter which contained more than 200 pages was addressed to Attorney General Tan Sri Idrus Harun himself and the prosecution would need to study it.

The prosecution did not object to the postponement, he said.

Deputy public prosecutor Abdul Malik Ayob confirmed that the prosecution had received the lengthy representation letter, which he said contained "complex issues".

He also confirmed that the prosecution was instructed not to object to a postponement.

The judge then asked the DPP about the time needed to study and decide on the representation.

Abdul Malik replied that the AGC also received a letter attached to the representation from the Malaysian Anti-Corruption Commission (MACC), stating it would investigate the new issues raised by Ahmad Zahid's defence.

He said the prosecution had not received any information on the investigation but needed its outcome to decide on the representation.

"We do not know whether the investigation has begun or otherwise, (but) to complete the entire process, we would require the result of the investigation," Abdul Malik said.

Justice Sequerah then allowed the postponement.

He fixed Aug 1 for parties to inform the court on the result of the representation.

Ahmad Zahid is facing 47 charges, involving 12 for criminal breach of trust (CBT), eight for corruption and 27 for money laundering, involving tens of millions of ringgit belonging to Yayasan Akalbudi, a charitable foundation he established.

Prosecution says instructed not to object as Zahid's case adjourned for 'further probe'

The deputy public prosecutor says reasonable time is needed to consider the application due to the length of the latest representation by the Umno president.

Staff Writers
2 minute read
Umno president Ahmad Zahid Hamidi. Photo: Bernama
Umno president Ahmad Zahid Hamidi. Photo: Bernama

The prosecution in Ahmad Zahid Hamidi's corruption case on Yayasan Akalbudi funds today said it had been instructed by the attorney-general not to object to an application for an adjournment of trial pending a decision on a letter of representation for a reconsideration of the charges against him. 

Zahid's lawyer Hamidi Mohd Noh earlier told the court that the Umno president had sent a letter of representation to the Attorney-General’s Chambers (AGC) for the 47 charges of criminal breach of trust, corruption and money laundering against him to be dropped.

"We wrote a letter of representation in January, and we sent a continuation and a new representation with some new facts and evidence relating to the charges to the AGC in February," he said.

He also asked High Court judge Collin Lawrence Sequerah to adjourn today's proceedings pending a decision by Attorney-General Idrus Harun on the representation.

Deputy public prosecutor Abdul Malik Ayob then told the judge that he had received instructions from the attorney-general not to object to the application. 

"My instructions (from the attorney-general) was not to object to this application for adjournment. The letter was voluminous and had complex issues to be considered," he said, citing also the length of the letter which he said was 200 pages long. 

"After going through the representation which is lengthy and contained complex issues, we were instructed not to object to the application (for an adjournment of hearing) because the prosecution needs reasonable time to consider (the representation)," he added. 

He said the letter also stated that the Malaysian Anti-Corruption Commission (MACC) was conducting further investigations on the new evidence presented by the defence.

"We have not received any information regarding MACC's investigation, but the prosecution needs the results of the investigation to decide on the representation application.

"We do not know whether MACC has started the investigation or not, therefore to complete the whole process, we need the results of the investigation," he said.

Sequerah then allowed the case to be adjourned until Aug 1. 

Zahid, who is also rural and regional development minister, faces 12 counts of criminal breach of trust, eight of corruption and 27 of money laundering involving tens of millions of ringgit belonging to Yayasan Akalbudi.

Last month, he succeeded in his bid for the permanent return of his passport, for the purpose of carrying out his official duties abroad

The passport was previously surrendered to the court as an additional bail condition. 

The Court of Appeal allowed his application, overturning the previous High Court decision by Sequerah dismissing his bid. - MalaysiaNow, 10/4/2023

Idrus Harun reappointed as AG, to serve one more year

Federal Court judge Tan Sri Idrus Harun is sworn-in at the Palace of Justice in Putrajaya November 26, 2018. u00e2u20acu2022 Picture by Azinuddin Ghazali
Tan Sri Idrus Harun has been reappointed as the attorney general (AG) and would be serving one year under the latest appointment. ― Picture by Azinuddin Ghazali

KUALA LUMPUR, March 8 — The Malaysian government today announced that Tan Sri Idrus Harun has been reappointed as the attorney general (AG), and that he would be serving one year under the latest appointment.

Chief Secretary to the Government Tan Sri Mohd Zuki Ali made the announcement today.

“It is notified that in line with Article 145(1) of the Federal Constitution, Seri Paduka Baginda Yang di-Pertuan Agong has assented to the reappointment of Y Bhg. Tan Sri Idrus bin Harun as attorney general for a period of one (1) year with effect from March 6, 2022,” Mohd Zuki said in a brief one-paragraph statement today.

Under Article 145(1), the Yang di-Pertuan Agong shall, on the advice of the prime minister, appoint a person — who is qualified to be a Federal Court judge — to be the attorney general.

Today’s announcement came after Idrus’s two-year term as attorney general was to officially end on Sunday (March 6). 

Idrus, now aged 67, was first appointed on March 6, 2020 to be attorney general for a two-year term. Idrus replaced Tan Sri Tommy Thomas who had resigned from the position in late February 2020.

Immediately before becoming the attorney general in March 2020, Idrus was serving as a Federal Court judge.

Throughout his 42-year career, the Kedah-born Idrus — who is also a law graduate from Universiti Malaya — had served in multiple positions such as in the Attorney General’s Chambers’ (AGC) division which is tasked with drafting laws, being the head of the Federal Territory Prosecution Unit, and being a deputy public prosecutor with the AGC.

Idrus had also in the past served as senior federal counsel to both the Election Commission and the Malaysian Anti-Corruption Commission’s (MACC) predecessor Anti-Corruption Agency, and also as the solicitor general — the second-highest ranked AGC official after the attorney general — from 2006 to 2014.

He then served as a Court of Appeal judge for about four years, and as Federal Court judge from November 2018 until his March 2020 appointment as attorney general.

Idrus is also the older brother of Dewan Rakyat Speaker Tan Sri Azhar Azizan Harun.

Previously, on March 6, which was when Idrus’s term would have ended, news portal Free Malaysia Today (FMT) had reported Malaysian Bar president AG Kalidas as questioning the seeming delay in making an announcement over whether there has been an extension of Idrus’s term as attorney general.  

“It would be prudent if the prime minister does not wait until the eleventh hour to advise the Yang di-Pertuan Agong and announce the appointment in the event of vacancy or the extension of the current appointment,” Kalidas was quoted as telling FMT. - Malay Mail, 8/3/2023



























Wednesday, May 31, 2023

GREAT - Telegram did not want to participate in “any form of political censorship”? An explanation why will not cooperate with Minister?

In statement shared to the New Straits Times, a Telegram spokesperson Remi Vaughn said it refused to cooperate with Fahmi’s ministry as the platform did not want to participate in “any form of political censorship”. He added that Telegram has been actively moderating harmful content on its platform including the sale of illegal substances and public pornography... He iterated that Telegram will not participate in any form of political censorship.

It is most disappointing that  Pakatan Harapan rather than repealing the draconian provisions of the Communications and Multimedia Act 1998(CMA) are continuing to use them...

With Minister Fahmi from PH talking about demands of cooperation with Facebook and other social media apps... some say the real 'main' reason maybe a response of how social media impacted the recent GE15. 

Yes, many Malaysians expressed their views and shared about stuff that may have influenced how voters voted. 

Unlike GE14, the support for PH shrunk in GE15... And eventually to govern, Anwar and PH had to join BN, after PN(Bersatu, PAS and others) openly refused to join PH to form a coalition government. 

So, is Anwar and PH now trying to 'censor' or 'control' service providers and app owners so that it's users(us?) will not break Malaysian laws? Or is it, to 'not say anything negative or against the CURRENT government'? Is the PH becoming the same with the old BN - censorship and no real freedom of expression/opinion? Or worse? 


See earlier relevant posts:-

Bar Resolution on Respect of Privacy, End of “Spying” and Intervention of Internet without Due Notice, ... Will Anwar's PH-led government do the needful?

Malaysia Must Stop Pressuring Facebook and Telegram to Monitor or Control User’s Private Communication

SEDITION Act - Moratorium on the use of unjust laws pending repeal

Respect People’s Right to Privacy, Freedom of Expression - Repeal Section 233 and other rights violating provisions in the Communications and Multimedia Act 1998(CMA)...- MADPET

 

 

 


Telegram explains why it refuses to cooperate with Malaysia’s Communications and Digital Ministry

Telegram explains why it refuses to cooperate with Malaysia’s Communications and Digital Ministry
Communications and Digital Minister Fahmi Fadzil has recently expressed concerns that Telegram is unwilling to cooperate with the government despite several requests for a meeting since January 2023. — SoyaCincau pic

KUALA LUMPUR, May 29 — Communications and Digital Minister Fahmi Fadzil has recently expressed concerns that Telegram is unwilling to cooperate with the government despite several requests for a meeting since January 2023. He said there have been many complaints about scams, pornography and illegal drug sales on the instant messaging platform.

In statement shared to the New Straits Times, a Telegram spokesperson Remi Vaughn said it refused to cooperate with Fahmi’s ministry as the platform did not want to participate in “any form of political censorship”. He added that Telegram has been actively moderating harmful content on its platform including the sale of illegal substances and public pornography.

He added that Telegram moderators have proactively monitor public parts of the app as well as accepting user reports through the app or by email at abuse@telegram.org to remove content that violates their terms of service. He iterated that Telegram will not participate in any form of political censorship.

Fahmi has recently told the Malaysian Communications and Multimedia Commission (MCMC) to look at appropriate decisions that need to be made in order to tackle inappropriate and scam content. As reported previously, the MCMC has limited powers to act on platforms hosted overseas as current policies are ineffective.

The MCMC calls for intervention including reviewing the self-regulatory framework as several over-the-top (OTT) applications and social media platforms have not been effective in self-regulating the use of their platforms in line with Malaysia’s laws and national interest. Despite Meta’s promise that it has algorithms in place to tackle scams, it is clear that they have failed to prevent scam ads impersonating brands and public figures on Facebook and Meta. Even Fahmi himself is also a victim of impersonation on Meta’s platform.

Several social media platforms are not fast to act on scam and inappropriate content as they lack a local team to monitor and act on user reports. To tackle scam ads, the platforms which make huge revenues from online advertising should be required to form a local moderation team and make it mandatory to conduct basic checks on new advertisers to the platform.

Other countries such as Indonesia have imposed new requirements for both international and local platforms to adhere to new regulations that are aimed at tackling harmful content. In Indonesia, all digital platforms are required to register themselves as an Electronic Systems Provider (PSE) which will require them to comply with take-down requests within 24 hours or within 4 hours if it is urgent. Unregistered platforms are banned in the country and eventually, most popular platforms including Facebook, Instagram, Netflix, TikTok and Telegram are spared after registering themselves with the government.

In 2017, the Malaysian government blocked software platform Steam after failing to comply with the MCMC’s request to take down a video game called Fight of Gods. The ban was eventually lifted after complying with MCMC’s request. — SoyaCincau

-Malay Mail, 29/5/2023



 
 


 
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Media Statement – 24/5/2023

Malaysia Must Stop Pressuring Facebook and Telegram to Monitor or Control User’s Private Communication

Telegram and app owners must be strong and protect user’s privacy

Malaysia’s actions with Facebook, Telegrams, other App owners and service providers is raising concerns relating to our right to privacy, including our right of private communication. The government should not be ‘spying’ on people, and neither should the State  be asking service providers or App owners to be monitoring our communications over the internet. Internet user’s privacy must always be respected, and many will just abandon apps where their private communication is being seen by others, including the State.

MADPET (Malaysians Against Death Penalty and Torture) reiterated its call for the immediate repeal of section 233, 263, 252, 265 and other draconian provisions in the Communications and Multimedia Act 1998(CMA). What the Minister is trying to do must be by reason of this draconian Act.

. ‘…The Malaysian Communications and Multimedia Commission (MCMC) is strengthening its cooperation with Meta Platforms Inc (Meta) to curb Facebook activities that violate Malaysian laws, Communications and Digital Minister Fahmi Fadzil said…’(Malay Mail, 22/5/2023).

Is there any other way other than invading the privacy of users and monitoring content of communication, that these service providers and app owners can do what Malaysia is asking them to do?

The Minister, from the Pakatan Harapan that were all for reforms and human rights before elections, must now clarify what Malaysia is getting Facebook and other service providers to do.

Protect the privacy of our private communications

The monitoring of any or all communications of all Malaysian users is totally unacceptable.

However, if an internet user makes a police report or a complaint to law enforcement of a crime, then the investigation of the complainant’s communication through which the alleged crime occurred, and maybe even the tracking the scammers, online gambling, pornography, etc may be permissible. But certainly, no ‘spying’ on the communications on everyone all the time or at any time, for whatever reasons and certainly NOT because Malaysia wants to PREVENT attempts or crime that yet to happen, which may or may not occur in the future.

There may be some support today in Malaysia if it was the monitoring of Ministers, politicians, political appointees and public officers to prevent corruption, power abuse and such crimes involving Malaysia’s monies. However, MADPET would also be against that.

Laws, disrespecting privacy, that enable continuing monitoring to prevent possible future crimes is unjust

Section 263(2) states, ‘(2) A licensee shall, upon written request by the Commission[Malaysian Communications and Multimedia Commission(MCMC)] or any other authority, assist the Commission or other authority as far as reasonably necessary in preventing the commission or attempted commission of an offence under any written law of Malaysia or otherwise in enforcing the laws of Malaysia, including, but not limited to, the protection of the public revenue and preservation of national security.’ A ‘.."licensee" means a person who either holds an individual licence, or undertakes activities which are subject to a class licence, granted under this Act;..’.

Investigation and action comes after crime committed

Action after a crime is committed is reasonable, but insisting actions to prevent a crime which MAY or may not happen though means continuing monitoring and actions by service providers or app owners is unacceptable.

Are these service providers and app owners also asked to suspend accounts on users because they believe there may be an attempt to commit a crime is also wrong. If the State has a justification to take action, they must act on their own after giving the alleged perpetrator the right to be heard and getting a Court order.

There have been experiences of Facebook accounts being temporarily suspended, but the user is at a loss as to whether it is the action of Facebook, or really the action of Malaysia that got Facebook or other apps/services to do so. There must be transparency on the part of the Malaysian government, and the government must remember the presumption of innocence until found guilty by a court of law. So, no to interference, monitoring, suspension or blocking of accounts of users of any apps used for private communication.

Facebook ‘buckled’ but not Telegram?

Whilst Facebook may have buckled to Malaysian government’s request, it is good to note that Telegram has not to date.

Minister of Communications and Multimedia Fahmi Fadzil said Telegram has been asked from the outset to tackle these matters “but has refused to do so up to now, so I asked MCMC to study the necessary actions”. He said MCMC was strengthening its co-operation with Facebook owner Meta to curb activities that violate Malaysian laws. (FMT,22/5/2023).

MADPET urges Facebook and other service providers that will monitor user’s communication to ensure Malaysian laws are not violated to openly disclose the fact to users, so users can make informed decision as to whether to use the app or service. Many want their communication to be private even from the prying eyes of the owner and service provider.

MADPET applauds Telegram, service providers and app owners that have stood strong against government pressure to ensure privacy of user and user’s communication is always protected.

MADPET urges the Malaysian government to stop ‘pressuring’ service providers and app owners to ensure that the users do not violate Malaysian laws. Stop making service providers and app owners liable for crimes committed by users whilst using these internet communication tools.

MADPET reiterates its call for the immediate repeal of the draconian provision in Malaysia’s Communications and Multimedia Act 1998(CMA). Enclosed is MADPET’s statement ‘Respect People’s Right to Privacy, Freedom of Expression - Repeal Section 233 and other rights violating provisions in the Communications and Multimedia Act 1998(CMA)’ dated 4/3/2023, which looks at some of these draconian provisions.

MADPET calls for the respect of privacy, and urges the government to impose a moratorium on the usage of these draconian provisions pending repeal.

Charles Hector

For and on behalf of MADPET

 

ADDENDUM

 

Media Statement – 4/3/2023

Respect People’s Right to Privacy, Freedom of Expression - Repeal Section 233 and other rights violating provisions in the Communications and Multimedia Act 1998(CMA)

Suspect’s right to be informed and to be heard must be respected before online services are ‘blocked’ by State

The continued use of the draconian Section 233 Communications and Multimedia Act 1998(CMA) by Malaysian government under Prime Minister Anwar Ibrahim is appalling. News that the government will review this section is welcomed, but MADPET (Malaysians Against Death Penalty and Torture) calls for the repeal of Section 233 and all anti-human rights provisions in CMA.

Despite the long-standing call of the Malaysian Bar (also vide a Bar Resolution passed at the AGM in 2016 attended by over 1,000 lawyers), SUHAKAM (Malaysian Human Rights Commission), civil society groups and others for the repeal of this law, this PH-led government is still using this law.

The Bar in a statement December 2015 said, amongst others that ‘…Section 233(1)(a) of the CMA is a serious encroachment on the freedom of speech and expression guaranteed by Article 10(1)(a) of our Federal Constitution. …Section 233(1)(a) of the CMA is also repugnant to the rule of law, as it is broad in scope, vague and ambiguous, with entirely subjective terms such as “offensive” and “annoy”.  It can easily be misused to stifle speech and expression, to shut out contrary views, to quash dissent, to deny democratic space, and to suppress Malaysians.  It is this imprecision that gives rise to the perception that the provision is yet another dressed–up political weapon in the armoury of the Government…’

Section 233 criminalizes the publication and dissemination online of communication that is ‘…obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person…’ It is just too broad and vague, and is open to abuse. For example, the highlighting of violation of human rights or laws, or facts connected to alleged violations of rights/laws, would likely ‘annoy’ or even ‘harass’ the wrongdoer, and for the alleged wrongdoer, it could also be said to be ‘menacing and offensive’. This should never be considered an offence.

As such, this section deters even the highlighting of human rights abuses, breaches of law and even possible government wrongdoing. A criticism of a statement of a Minister or anyone that is in the wrong can also be alleged to be false, menacing, annoying or even harassment.

In 2022, the Centre for Independent Journalism documented 114 cases where Section 233 of the Communications and Multimedia Act was used to investigate netizens and human rights defenders.

CMA has also infringed press freedom, and this also can violate people’s right to information. Two national newspapers are being investigated by police for publishing news reports insinuating that Chinese vernacular school students in the country are reluctant to learn Bahasa Malaysia. This maybe just an opinion of some, so why the investigation at all.

Blocking access without owner-user knowing – section 263

Another draconian provision is Section 263, whereby Section 263(2) states, ‘(2) A licensee shall, upon written request by the Commission[Malaysian Communications and Multimedia Commission(MCMC)] or any other authority, assist the Commission or other authority as far as reasonably necessary in preventing the commission or attempted commission of an offence under any written law of Malaysia or otherwise in enforcing the laws of Malaysia, including, but not limited to, the protection of the public revenue and preservation of national security.’ A ‘.."licensee" means a person who either holds an individual licence, or undertakes activities which are subject to a class licence, granted under this Act;..’.

This means access to your blog, website, Facebook, email, etc can be blocked by the licensee or service providers on the request of the MCMC, who simply have to send a written request.

What is worse is that you may not know WHY this happened, and who is responsible for this ‘censorship’ and deprivation of your right to communicate with others? Worse, this ‘censorship’, interference, blocking of access and even closure of account of your online facilities of communication can even happen before any alleged crime is committed. One may end up wrongly blaming service providers and social media applications, when the truth may be that it was the government that is responsible.

If blog/website or any social media facility access is to be blocked, the suspect of the alleged crime must be immediately informed by MCMC or the relevant authorities, and accorded the right to challenge that decision.

Note that all the police or MCMC can do is allege or suspect that a crime has been committed, for it is only the court, after a fair trial, that determines whether an offence has been committed or not. Hence, premature punishment by blocking access to internet facilities must end, as punishment ought to come after the court decides on the guilt.

Spying on us – Section 252, 265

How many people’s communication online are being intercepted and listened to using CMA? The people’s right to privacy must be respected and acknowledged.   

Section 252 CMA ‘…. authorise the officer to intercept or to listen to any communication transmitted or received by any communications….’ .  CMA says, "interception capability" means the capability of any network facilities or network service or applications service to intercept communications under section 265;

All that is needed now is the authorization of the Public Prosecutor, and MADPET believes that it is better that the requirement be a Court order made by a Judge, who will have to consider our right to privacy before allowing for any such ‘spying’.

Section 265(1) states, ‘The Minister may determine that a licensee or class of licensees shall implement the capability to allow authorised interception of communications…’

CMA needs a total review, and all draconian provisions that violates our human rights must be forthwith repealed

MADPET (Malaysians Against Death Penalty and Torture) calls for the immediate repeal of section 233, 263, 252, 265 and other draconian provisions in the Communications and Multimedia Act 1998(CMA);

MADPET calls for an immediate stay in the usage of Section 233 and all draconian provisions of the CMA pending repeal;

MADPET calls for respect and acknowledgement of a persons right to privacy, and to insert this right in the Constitution or relevant laws;

MADPET calls for press freedom, and for the government to ‘end’ trying to scare or ‘control’ journalists and media outlets from reporting and/or delivering information, including critical opinions, to the Malaysian public.

Freedom of speech, expression and opinion must be respected. If there is some ‘fake’ or ‘misleading’ information online, the government should speedily correct or clarify rather than prosecuting the author and those who shared it online. The government must acknowledge the right of people to express opinions different from that of the government of the day, the police or MCMC.

Charles Hector

For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)

 

MCMC has Telegram in crosshairs over porn, drugs

Communications and digital minister Fahmi Fadzil says people who conduct illicit activities using social media apps should be taken to task.

Communications and digital minister Fahmi Fadzil said Telegram had been approached repeatedly by MCMC over such issues, but to no avail.

PETALING JAYA: The Malaysian Communications and Multimedia Commission is examining ways in which it can curb illicit activities on the Telegram social media app, communications and digital minister Fahmi Fadzil said today.

The minister referred to users sharing pornography, and trading in drugs and medicines not approved for use in Malaysia.

“All of these matters are worrisome as they are legal violations,” he said.

He said Telegram has been asked from the outset to tackle these matters “but has refused to do so up to now, so I asked MCMC to study the necessary actions”.

He said MCMC was strengthening its co-operation with Facebook owner Meta to curb activities that violate Malaysian laws.

Fahmi said commission officials met with Meta management last week and discussed controls for online gambling as well as scam advertisements.

He denied claims by Telegram account holder Edisi Siasat that the ministry had not taken any action at all. - FMT, 22/5/2023

 

Malaysia

Fahmi: MCMC working with Meta to curb Facebook activities that violate Malaysian laws

Fahmi: MCMC working with Meta to curb Facebook activities that violate Malaysian laws
Communications and Digital Minister Fahmi Fadzil poses for a picture with guests at the Malaysian National News Agency’s (Bernama) 56th Anniversary and Aidilfitri Open House celebration at Wisma Bernama, Kuala Lumpur May 22, 2023. — Bernama pic

KUALA LUMPUR, May 22 — The Malaysian Communications and Multimedia Commission (MCMC) is strengthening its cooperation with Meta Platforms Inc (Meta) to curb Facebook activities that violate Malaysian laws, Communications and Digital Minister Fahmi Fadzil said.

He added that the commission met with Meta management last week and discussed controls on Facebook relating to online gambling and ads of non-existent investments and scams.

“This issue is on Meta’s side, I have repeatedly brought it up to be resolved, so during this meeting, we have asked for further explanations on the online gambling and scam issues, and these are what we are focusing on currently.

“I hope our cooperation through MCMC and META will grow even closer in our efforts to curb any misuse of the platform,” he told reporters after attending the Malaysian National News Agency’s (Bernama) 56th Anniversary and Aidilfitri Open House celebration at Wisma Bernama here today, in the presence of Bernama chief executive officer (CEO) Roslan Ariffin and Bernama acting editor-in-chief Jamaluddin Muhammad.

Fahmi was refuting claims by Telegram account holder Edisi Siasat that his ministry had not taken any action against such activities on Facebook.

He also said they were studying how to take stern action against Telegram users who upload pornography and use the app to sell drugs and medicines unapproved by the Health Ministry.

“All of these matters are worrisome as they are legal violations, from the onset, the (Unity Government) administration has asked Telegram (to address) these issues but they have refused to do so till now, so I asked the MCMC to study the necessary actions,” he said.

Fahmi also took the time to congratulate Bernama on its 56th anniversary, saying that the agency played a vital role as a news agency in reporting news and historic national events.

“Congratulations Bernama... a prime mover in the Malaysian media industry, and as the organiser of the National Journalists Day (Hawana) 2023.

“Changes in the media industry due to the development of social media need to be studied together and my ministry and I stand ready to assist Bernama,” he added. — Bernama - Malay Mail, 22/5/2023

Friday, May 26, 2023

Why is Malaysia delaying putting into force the laws that abolish mandatory death penalty?

Why is the Minister delaying putting in force the laws that will abolish the mandatory death penalty and life(or natural) life imprisonment? Why is the delay in putting in force the law that will begin the process where Federal Court will review those on death row, and those currently on life sentence?

Remember the Bills were passed in the Senate(the upper or other House of Parliament). Then, the Bills will need the royal assent - in Malaysia if the King's assent is not obtained in 30 days, it is deemed to have obtained Royal assent. As the Senate passed it on 11/4/2023?

Maybe the Acts of Parliament have been put into force but we do not know. The government must publicize the coming into force of the very just development.

 

 

Media Statement – 12/4/2023

Call on the King to speedily give his Royal Assent to the Bills abolishing Mandatory Death Penalty and Imprisonment for Natural Life, and thereafter for the Minister to put it into force these Acts without any delay

MADPET (Malaysians Against Death Penalty and Torture) welcomes the passing by the Malaysian Senate, the upper or other house of the Malaysian Parliament, on 11/4/2023 of the Abolition of Mandatory Death Penalty Bill 2023 and Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction Of The Federal Court) Bill 2023. The Dewan Rakyat(House of Representatives) of Parliament passed these Bills on 3/4/2023.

Time for the King to give his Royal Assent

After this, the King (Yang di-Pertuan Agong) will have to assent to the Bills. Article 66(4) states (4) The Yang di-Pertuan Agong shall within thirty days after a Bill is presented to him assent to the Bill by causing the Public Seal to be affixed thereto. However, if the King do not assent within the stipulated 30 days, then according to Article 66(4A) which states, “…(4A) If a Bill is not assented to by the Yang di-Pertuan Agong within the time specified in Clause (4), it shall become law at the expiration of the time specified in that Clause in the like manner as if he had assented thereto…’

Minister must not procrastinate in putting Acts in force

Even after the King has assented to the Bill, it will still not become law until it is published and put into force by the relevant Minister. Article 66(5) says ‘…A Bill shall become law on being assented to by the Yang di-Pertuan Agong or as provided in Clause (4A), but no law shall come into force until it has been published, without prejudice, however, to the power of Parliament to postpone the operation of any law or to make laws with retrospective effect….’

MADPET asks the King to speedily assent to these Bills, and for the Minister to thereafter immediately cause it to be published and put into force.

The Abolition of Mandatory Death Penalty Bill 2023

The Abolition of Mandatory Death Penalty Bill 2023 abolishes mandatory death penalty and natural life imprisonment. Thereafter, for these death penalty offences, judges will have the discretion to sentence to death or sentence “imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes”.

The Bill also will also amend “imprisonment for natural life” with the words “imprisonment for a term of not less than thirty years but not exceeding forty years”. These reasonably ends imprisonment until one die.

In Malaysia, the sentence of ‘Imprisonment for life’ is as stated in the Criminal Justice Act section which says, that “Where any person is treated as having been sentenced or is hereafter sentenced to imprisonment for life, such sentence shall be deemed for all purposes to be a sentence of imprisonment for thirty years;

Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction Of The Federal Court) Bill 2023

Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction Of The Federal Court) Bill 2023 will allow the Federal Court to review the sentence of death and imprisonment for natural life imposed on a convicted person following the abolition of the mandatory death penalty. This will benefit the about 840 of the 1,320 on death row, who have completed all appeals will have their death sentence reviewed by the Federal Court. Likewise, those that who have been sentenced to natural life imprisonment.

MADPET calls for the King (Yang di-Pertuan Agong) to speedily assent the said 2 Bills, being The Abolition of Mandatory Death Penalty Bill 2023 and the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction Of The Federal Court) Bill 2023;

MADPET calls for the Minister responsible, after getting Royal assent, to immediately publish and put the 2 Acts of Parliament into force.

Noting that the Bills, when it becomes Acts of Parliament, will not abolish the death penalty, MADPET reiterates its call for the abolition of the death penalty, and the continued moratorium on execution pending abolition.

MADPET also reiterate for the abolition of all forms of corporal punishment, including whipping.

Charles Hector

For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)

###

See earlier Media Statements of relevance.

Bills for Abolition Of Mandatory Death Penalty, Imprisonment For Natural Life And The Giving The Courts Power To Review Those Currently On Death Row Passed on 3/4/2023 - MADPET

Media Statement – 28/3/2023

Removing Mandatory Death Penalty And Mandatory Life Imprisonment Is Just, And Increases Chances That Those Who Ordered Or ‘Paid’ For Death Will No Longer Escape Justice

 

Media Statement – 22/3/2023

Delay In The Abolition Of The Mandatory Death Penalty And The Death Penalty By The PH-Led Government Disappointing

Table and pass the Bills in this Parliamentary Session (13/2 – 4/4/2023)

 

Ramkarpal: Death penalty not proven as best preventive measure for serious crimes

Ramkarpal: Death penalty not proven as best preventive measure for serious crimes
Deputy Minister in the Prime Minister’s Department (Law and Institutional Reform) Ramkarpal Singh speaks during a Parliament sitting in Kuala Lumpur April 11, 2023. — Bernama pic



KUALA LUMPUR, April 11 — The Abolition of Mandatory Death Penalty Bill 2023 would not necessarily lead to an increase in serious crime cases, the Dewan Negara was told today.

Deputy Minister in the Prime Minister’s Department (Law and Institutional Reform) Ramkarpal Singh said crime rates were not solely dependent on heavy punishment, and there was no study to show that death penalty was the best measure to prevent crimes.

“Before this, a committee led by a former Chief Justice had conducted a study on this issue and found that the deterrent effect is not as what was told. There are many factors that can affect crime rates, such as economic, social and psychological.

“Crime rates also depend on the effectiveness of law enforcement, the public’s understanding of the effects of crime and also the opportunity to commit a crime,” he said when winding up the debate on the bill.

The bill was passed without amendments by majority voice vote after a debate by 17 senators.

Ramkarpal said the bill was an ‘omnibus’ act as it included amendments to the Penal Code, Firearms (Increased Penalties) Act 1971, Arms Act 1960, Kidnapping Act 1961, Dangerous Drugs Act 1952, Strategic Trade Act 2010 and Criminal Procedure Code.

The House also approved the Death Penalty and Life Imprisonment Review (Federal Court Provisional Jurisdiction) Bill 2023 after it was debated by 12 senators.

The bill aims to empower the Federal Court to review the death penalty and life sentence of inmates following the abolishment of the mandatory death penalty. — Bernama, Malay Mail, 11/4/2023



Thursday, May 25, 2023

BERSIH/HINDRAF/etc made unlawful using draconian powers of Societies Act? Repeal the Act?

History has shown how the draconian Societies Act, which grants excessive discretionary powers to the Minister and Registrar of Societies, have been used to suppress the right to Freedom of Association in Malaysia...Remember how BERSIH was made unlawful...what happened to HINDRAF... what happened to many others...


ORDER UNDER SECTION 5 PU(A) 224/2011

WHEREAS I am of the opinion and being satisfied that the Coalition for Clean and Fair Election (BERSIH) movement is being used for purposes prejudicial to the interest of the security of Malaysia and public order:

NOW THEREFORE in exercise of the powers conferred by subsection 5(1) of the Societies Act 1966 [Act 335], I hereby declare that the said Coalition for Clean and Fair Election (BERSIH) movement as an unlawful society.

Well, BERSIH challenged the Minister's decision in court, and finally, amongst others, the Court 'quashed' the Minister's order - and BERSIH became lawful again. 

Dato' Ambiga Sreenevasan & Ors V. Menteri Dalam Negeri & Ors [2012] 7 CLJ 43

24 JULY 2012 – High Court - An order of certiorari to remove the Order dated 1.7.2011 made under section 5 of the Societies Act 1966 [P.U.(A) 224 / 2011] by the First Respondent declaring the "Coalition for Clean and Fair Elections (BERSIH)" movement as an unlawful society (the Order) into the High Court to be quashed forthwith.

It is most interesting to see what happened to HINDRAF - again the Minister in 2008 made HINDRAF unlawful, and then the MInister REVOKED the order in 2013 .... WHY?

ORDER UNDER SECTION 5 PU(A) 381/2008

WHEREAS I am of the opinion and being satisfied that the Hindu Rights Action Force (HINDRAF) movement is being used for purposes prejudicial to the interest of the security of Malaysia and public order:

NOW THEREFORE in exercise of the powers conferred by subsection 5(1) of the Societies Act 1966 [Act 335], I hereby declare that the said Hindu Rights Action Force (HINDRAF) movement as an unlawful society.

Why did the Minister revoke the Order making HINDRAF unlawful? Had it anything to do with HINDRAF suddenly supporting the government of the day...

REVOCATION OF ORDER UNDER SECTION 5  PU(A) 102/2013

IN exercise of the powers conferred by subsection 5(1) of the Societies Act 1966 [Act 335], the Minister revokes the order published in the Gazette on 14 October 2008 [P.U. (A) 381/2008] which declares the Hindu Rights Action Force (HINDRAF) movement as an unlawful society.

On 18 April 2013, after the ban of HINDRAF was surprisingly lifted and registration suddenly approved, Waytha Moorthy and the then ruling government Barisan Nasional (BN) had signed the Memorandum of Understanding (MoU).[23] At the MoU signing ceremony, Waytha Moorthy had also urged Indian voters to vote for BN in 2013 General Election (GE13), saying only the ruling coalition can take care of the community's welfare.[24] 

Was the revocation order because Watya Moorty and HINDRAF agreed to support the then BN government?  Well, remember that Watya, from May 2013 – February 2014 was Deputy Minister in the Prime Minister's Department. 

If that is what led to REVOCATION ORDER, it just shows how the power of the Minister and the Societies Act can be ABUSED. If you are government friendly, then no problem with registration - or RISK of being declared UNLAWFUL. If you are not, or 'linked' to the Opposition,...this Act can be abused. 

In the earlier post, I looked at how the State used the Act against political parties..

Will PM Anwar REPEAL draconian Societies Act? The Act to prevent registrations of Political Parties, to make unlawful societies,...????

Started looking at Societies Act, after our Home Minister gave an exemption to UMNO...

There are so many other reasons why the Societies Act need to be repealed, which MAY be dealt in later post - BUT Malaysia's draconian Societies Act must be repealed.

If there is a LAW - then the ACT must ensure speedy registration on application - no delays or refusal based on what may or may not happen in the future based on what the Registrar or Minister believes or thinks. If any Society or member commits a crime later, charge them in court - and pending the Court decision, there must be NO suspension of operations of any Society without a Court Order. 

Well, another reason amongst other reasons why the Societies Act must be repealed - and Malaysians must be allowed to finally experience true Freedom of Association. 

Registration is to enable Societies to open bank accounts, and to be able to sue and be sued. Registration is to protect members and membership rights. The right of the member against other members and the Society must be protected, including the right to bring any dispute to courts. REGISTRATION is not for the purposes of control of Societies by the State....it is wrong for the State to deny one's right to form or join an association.... 

More later...