Slander or inaccurate statements: Unlawful, dangerous for Government to restrict freedom of speech!

Press Statement Lawyers for Liberty 

21 August 2023

We refer to the statement made by Communications and Digital Minister Fahmi Fadzil stated that “we cannot allow any information that is inaccurate, slanderous”, in the context of blocks upon media portals.

This smacks of the Orwellian ‘Ministry of Truth’. It also appears to be a transparent attempt to justify or lay the groundwork for blocking portals or websites critical of the government. 

In the latest incident, TV Pertiwi has been subject to a government block, which has not been denied by Fahmi.

It is disturbing and unconstitutional for the Minister to set himself up as arbiter of ‘truth’ and arrogate powers to himself to restrict supposed slanderous or inaccurate news. 

Slanderous or inaccurate according to whom? Is it only the government’s right to decide what is true?

It seems that Fahmi and the government have forgotten that the Anti-Fake News Act was repealed by the PH government in 2018 as a threat to freedom of speech. Fake news must be countered by explanation, not criminalised.

The right to freedom of speech is enshrined within article 10(1)(a) of the Federal Constitution and it cannot be restricted on grounds of inaccurate. 

The restrictions to freedom of speech allowed under Article 10(2)(a) do not encompass inaccurate statements. It is speech that is prejudicial to public order or security that can be restricted, and that is a high bar to fulfil.

If the government gets to decide what is inaccurate or slanderous, it will lead to abuse of power and jailing of political opponents. Our past history has proven this is so, time and time again.

Insofar as slander is concerned, criminal defamation proceedings under section 500 of Penal Code was used by the old BN government to bring politically motivated charges against PH leaders, and PH had then criticised the law. Now in power, has Fahmi forgotten this?

In a democracy, the right thing for anyone who has been slandered to do is to file a civil suit for defamation. 

The government, its ministers and leaders hold no special status for there to be criminal intervention or state action to counter any slander made against them. All persons are equal in this country under Article 8 of the Constitution.

Any government that wants to restrict speech and the press to protect its own definition of truth is a frightened government afraid of criticism and losing power; it smacks of the Orwellian ‘Ministry of Truth’.

Such powers if allowed could essentially restrict any and all discourse on matters of public interest as the government can twist the definition of slander and inaccuracy to suit its own purposes.

Political opponents, government detractors, activists and the general public will be unusually burdened to prove any allegations of fault against the government if this were allowed. 

The 1MDB debacle is a clear example of how such powers can be easily abused by the government, where news portals were blocked and individuals were charged for speaking up. 

There is no reason to believe such abuses would not happen under this government or any other government.

It is disappointing that Fahmi disregards the importance of freedom of speech, a liberty so important that it was enshrined in the highest law of the land, the Constitution. 

One of its most important aspects are to protect individuals against the tyranny of the majority or oppression by the government simply for speaking their mind. 

To flippantly talk of its restriction shows a complete lack of understanding and respect for this fundamental right.

This right extends to the media, which are the ‘fourth estate’ and have a duty to bring issues of importance to the public attention.

We urge the government to stop using MCMC and other agencies under its power to restrict the media or criminalise individuals for alleged slander or inaccuracies. 

They are free to bring a civil suit in their personal capacity should they feel aggrieved by any statement made against them or make a public statement to correct any inaccuracy.

The duty of the government is not to restrict free speech, but to uphold the right with due respect to the Constitution.

Issued by Zaid Malek, Director, Lawyers for Liberty