Tuesday, March 21, 2023

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?

Will the call receive positive action by Anwar Ibrahim's PH-led government, or will we still have to wait for a government that upholds justice and human rights? Has Pakatan Harapan compromised on its principles and values? Bills can always be tabled, despite having no unanimous support in Cabinet, and then let Parliament decide.


Resolution Adopted at the 77th Annual General Meeting of the Malaysian Bar
(Held on 18 Mar 2023)


Resolution on Respect of Privacy, End of “Spying” and Intervention of Internet without Due Notice, and Repeal of Sections 233, 252 and 263 and Other Such Draconian Provisions in the Communications and Multimedia Act 1998 (“CMA”)

(1) The Malaysian Bar in 2016 adopted the “Resolution on Internet Censorship, The Malaysian Insider, and Freedom of Expression and Opinion”, whereby, amongst others, it was resolved as follows: “(C) That we, the Malaysian Bar calls for the repeal of section 263, section 233 and such vague provisions in the Communications and Multimedia Act 1998.”

(2) The Bar in a press release in 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.

(3) Disappointingly, this draconian law continues to be used by the Malaysian Government, now being the Pakatan Harapan-led Government under Prime Minister Dato’ Seri Anwar Ibrahim. It is used not just for lawbreakers, but also to “threaten” internet users. Thinking about or talking about a crime is not a crime. It becomes a crime when there is actual planning and when it is committed.

(4) Thus, the existence of laws for preventing the commission of crimes is draconian, more so when the alleged suspect has yet to do anything in preparation to commit the crime. Intercepting or blocking internet communication or activities of a person because the Malaysian Communications and Multimedia Commission (“MCMC”) or any other authority believes or suspects the person may commit a crime, is totally unreasonable.

Disrupting Internet / Communication Rights Without Notice

(5) Anyone’s internet access, website / blog and application’s access can be blocked by the Government and/or MCMC or any other authority, without the alleged suspect or lawbreaker knowing why or who is behind this.

(6) Section 263(2) of the CMA states (emphasis added):

(2) A licensee shall, upon written request by the 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.

(7) Justly, the suspect or alleged lawbreaker must be given notice with the reasons immediately, preferably prior to the action of blocking or depriving access. The right of the aggrieved to be heard and the right to appeal must also be given and, naturally, also the right to judicial review.

Spying on Private Communication and Internet Activity

(8) Section 252 of the CMA provides that the Public Prosecutor may “authorise the officer to intercept or to listen to any communication transmitted or received by any communications”. Under the CMA, “interception capability” means “the capability of any network facilities or network service or applications service to intercept communications under section 265”.

(9) Section 265(1) states that “[t]he Minister may determine that a licensee or class of licensees shall implement the capability to allow authorised interception of communications.”

(10) All that is needed now is the authorisation of the Public Prosecutor and, justly, 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”. It could be an interim ex parte order, where the aggrieved will have the right to be heard in the inter partes hearing.

(11) Interception means not just listening in or spying, but also the capacity to block communication to all, or maybe to a certain group of individuals. Is that why some of our communication to a group reaches some but not others?

(12) How many persons are being “spied” on? Are they opposition politicians, lawyers, human rights defenders, etc? 

(13) For lawyers, privacy is crucial — no one is supposed to listen in, or spy, on the communications between lawyer and client, more so when most communications today are being done through the internet or over telephones. It makes a mockery of solicitor-client privilege.

Therefore, the Malaysian Bar resolves to:

(A) Reiterate the call for the repeal of sections 233 and 263, and other such vague provisions in the Communications and Multimedia Act 1998 (“CMA”);

(B) Call for the respect of privacy and an end to “spying”, and intercepting and listening in on our communication over the internet or telephones;

(C) Call for the end of blocking or interrupting internet communication or activity without according due notice including reasons to the alleged suspect or lawbreaker, with the right to be heard or right to appeal. The right to judicial review must be accorded;

(D) Call for the repeal of section 252 and other rights-violating provisions in the CMA; 

(E) Call for a moratorium on the use of sections 233, 252, and 263, and other such provisions in the CMA, pending repeal;

(F) Call for the acknowledgement of the right to privacy, which would best be included and recognised in the Federal Constitution; and

(G) Call for the respect of human rights and justice for all.

Source: Malaysian Bar Website

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