* Commentary by Mustafa K. Anuar.

ORDINARY Malaysians will now have to tread very carefully when stating or sharing thoughts or ideas pertaining to the Covid-19 pandemic and the emergency declaration now that the Emergency (Essential Powers) (No. 2) Ordinance 2021, which is supposed to curb fake news, has taken effect.

This is because the law is so broadly and arbitrarily defined that it is difficult for people to determine whether what is written and shared among friends and others is an offending material. The chilling effect would be the penalties for those found guilty under this ordinance, which is heavily punitive.

The law states that individuals who create, publish or spread fake news about Covid-19 or the emergency will face a maximum RM100,000 fine, a jail term of up to three years or both.

Materials deemed “fake news” can be in the form of writing, videos, audio recordings or in any other forms that may convey “words or ideas”. In other words, it can be anything as long as it has the capacity to convey ideas through various forms of media.

Under the ordinance, the court can order for an offending publication to be removed. It also overrides the Evidence Act 1950, applies to anyone domestically and abroad, and also allows the authorities access to all passwords, data and hardware. Seizures can be made without a warrant.

Incidentally, there are such laws as the Sedition Act and Section 233 of the Communications and Multimedia Act (CMA) already in place that can combat “fake news”, which is understandably a serious concern for many of us in the country. 

It’s rather baffling, though, that de facto Law Minister Takiyuddin Hassan, has assured concerned Malaysians that all laws instituted under the emergency rule, including this ordinance, will be repealed at the end of the emergency as if the “fake news” would have been vanquished by then. 

Life can never be the same again for as long as the harsh ordinance is kept and used, as it has the effect of eroding people’s freedom of expression and impairing democracy. 

Who would dare, for example, disseminate a text or visual message – even with good intentions  – via such messaging platforms as WhatsApp and Telegram, and social media Facebook to warn families and friends to stay away from a certain supermarket that has a new case of Covid-19 infections even if it turns out to be true?

Or for that matter, share a complaint via Instagram or TikTok about a few individuals attempting to jump the queue for Covid-19 vaccination in a hospital over social media even if it’s true? Such over-cautiousness can take away the civic-mindedness of decent Malaysians as a result.

To be safe rather than sorry, and even though it is a matter of justice and public health, Malaysians may just decide to look the other way if prominent figures are seen to be flouting the movement-control order, the fine for which has recently been increased to RM10,000, 

These are a few of likely scenarios that could prompt ordinary Malaysians to look over their shoulders because the government is the final arbiter of truth and falsity. This despite the fact that in a diverse society like Malaysia we are bound to have divergent views in the public domain.  

Furthermore, people might bottle up their grievances, frustrations and even anger, thereby depriving the government of essential public feedback.

Apart from members of the public, the media are also adversely affected by this ordinance.

The uncertainty of what constitutes “fake news” and the weight of the penalties would spawn a culture of self-censorship in the media industry that can take on a life of its own, which is in many ways more menacing than direct censorship itself.

Reporting will not be easy. With no clear guidelines of what fake news is, how are journalists to perform professionally and responsibly without getting into trouble with the law? Clarity in this matter is crucial so as to necessitate government’s engagement with the media on this matter. 

This piece of legislation can also prohibit otherwise legitimate discussions in the media pertaining to Covid-19 with the primary objective of seeking the best strategies from various groups to combat the menace.

A Perikatan Nasional government that has the required parliamentary majority, which Takiyuddin asserts is the case, would stand to benefit from confidently engaging with all stakeholders on matters they consider important and crucial, including Covid-19 and the emergency rule. 

It would be counterproductive to resort to a controversial anti-fake news ordinance. – March 14, 2021.