September 20th, 2015

Judge with many landmark decisions

Datuk Mohd Hishamudin Mohd Yunus has retired from the Bench, but his integrity, fearless independence and unwavering commitment to constitutional supremacy will be remembered.

STUDENTS of public law will note with sadness that Datuk Mohd Hishamudin Mohd Yunus (pic), who illuminated the judicial firmament for 23 years, retired from the Bench on Sept 9.

His years on the Bench were marked by integrity, fearless independence and an unwavering commitment to constitutional supremacy.

He showed tenderness for fundamental liberties and exhibited a creative and activist streak in his interpretation of laws. He will be remembered with respect by all those who believe that the judiciary must balance the might of the state with the rights of citizens.

Personal liberty: Perhaps the learned judge will be best remembered for his Abdul Ghani Haroon v IGP trilogy. In this series of cases involving preventive detention under the Internal Security Act, he made a number of bold and pioneering rulings.

First, an applicant for habeas corpus has a right to be present in court during the proceedings. This eminent ruling was overruled by the Federal Court on a pedantic and lite­ral interpretation of Article 5(2). It is submitted that if there is allegation of torture or custodial death, the only way to establish facts is to produce the detainee in court.

Second, the discretion of the police to arrest is not absolute. Judicial review of executive discretion is possible if grounds of arrest and sufficient particulars are not supplied; access to lawyer and fa­mily is denied; and there is unreasonableness and bad faith in police conduct.

Third, the police can be restrained from re-arresting the detainee immediately after release.

In another ISA case, Justice Hishamudin awarded detainee Abdul Malek Hussin RM2.5mil in damages for unlawful detention and assault.

All the above rulings ran counter to prevalent judicial subservience to executive perceptions of security and public order in preventive detention cases.

Equality: In Manoharan Malaya­lam (2013), the plaintiffs alleged that the Federal Government discriminated against Tamil primary schools contrary to Articles 4, 8 and 12. The High Court refused locus standi (legal standing to sue). Justice Hishamudin and his brother judges at the Court of Appeal overruled the High Court and granted the applicants the right to submit their arguments because concerned citizens with a bona fide complaint of human rights violation should have a right to be heard on merits.

In the famous transgender, cross-dressing case of Muhamad Juzaili (2015), Justice Hishamudin penned the unanimous opinion that section 66 of the Negri Sembilan Enactment which penalises men who dress like women, but does not impose similar punishment on women who dress like men, was a violation of the equality doctrine.

Speech and association: In the Hilman case Justices Hishamudin and Linton Albert held that section 15(5)(a) of the Universities and University Colleges Act, which forbade students from expressing any sympathy or support for any political party, was contrary to the constitution’s guarantees in Article 10.

Secrecy: In a dissenting judgment relating to the Official Secrets Act and the secrecy of a water concession agreement, he disagreed with the majority that the minister cannot be compelled to disclose the agreement and the audit report: Menteri Tenaga v MTUC (2012).

Property: In Ismail Bakar (2010), the delay of nine years to effect payment for a compulsory acquisition order rendered the order null and void. In Ee Chong Pang(2013), the failure of the Malacca government to comply with the mandatory procedure of issuing Form A invalida­ted the compulsory land acquisition order.

Syariah courts: While acknow­ledging the jurisdiction of syariah courts in matters assigned exclusively to them by the Constitution, Justice Hishamudin broke rank with many superior court judges who, at the slightest whiff of Islamic law, surrender jurisdiction to the syariah courts. In Kadar Shah Tun Sulaiman (2008), he ruled that a trust, even between Muslims, was a matter within federal jurisdiction.

In Siti Hasnah Vangarama Abdullah (2012), a seven-year-old child born into a Hindu family was converted to Islam by Muslim religious authorities in Penang without the consent of her parents. On rea­ching maturity she challenged the constitutionality of her conversion.

A question arose whether the civil court or the syariah court had jurisdiction over the matter. Justice Hishamudin held that as fundamental rights under Articles 11 and 12 were involved, the civil High Court had exclusive jurisdiction.

Creative interpretation: In an erudite article in 2011, the learned judge openly supported judicial activism. And rightly so. Life is always larger than the law and the glittering generalities of the law cannot anticipate all the vicissitudes of life.

Justice and equity: In pursuing justice, Datuk Hishamudin occasionally unshackled himself from the doctrine of binding judicial precedent. In his dissenting judgment inIshak Hj Shaari v PP (2011), he ruled that the Court of Appeal has inherent power to review its own previous decisions in order to prevent injustice.

In one case the learned judge invi­ted Parliament to abolish or review he ISA “to prevent or minimise the abuses highlighted in (his) judgment”.

In several judgments, Justice Hishamudin did not hesitate to take lawyers or judges who strayed from the path of justice or propriety to task. In Raja Segaran (2008), he refused locus standi to a lawyer who wished to prevent the Bar Council from discussing the misconduct of the then Chief Justice. Though only a High Court judge then, he strongly disagreed with a Court of Appeal judgment to bar such discussion.

In Dato’ V. Kanagalingam v David Samuels (2006), a prominent lawyer made a RM100mil libel claim against the author of an article in a commercial magazine. In dismissing the claim, Justice Hishamu­din refer­red to the lawyer’s wrongful conduct in the Ayer Molek case, which the Court of Appeal took note of. He held that a person cannot bring an action based on his own wrong.

He also had harsh words for the illegally constituted Federal Court quorum which ordered the Court of Appeal remarks to be expunged.

In sum, his judicial life was one of courage and conviction. He leaves behind large footprints and the legal community will miss him. Shad Faruqi The STAR Home News Opinion Reflecting the Law 17 September 2015

Fighting corruption: Kevin was not just a DPP, he was family too;

Fighting corruption

THE fight against corruption continues with men of integrity having had to pay a heavy price. The discovery of the remains of the late DPP Anthony Kevin Morais who served in the Appellate and Trial Division of the Attorney General’s Office has brought home the reality of what it takes to eradicate this menace.

Two years ago, another senior government officer attached to the Customs Department was fatally shot on his way to work by hired killers, almost similar to the most recent incident. Both cases appear to relate to underlying issues of standing up to corruption.

It is easy to pass unflattering and hurtful comments that bribes paid in the right amounts and at the right levels would literally allow one to break the law with impunity. Government officers in particular face such disparaging remarks which are most demoralising.

The presumption that everyone has a price and the challenge is to find the right price is an insult to those serving both in the public and private sectors. We must remember that the head count inevitably includes those who serve with integrity.

Much effort has been expended in bringing those who receive bribes and guilty of corruption to face the full force of the law.

These include efforts by the officers of the Malaysian Anti-Corruption Commission (MACC) and the Attorney-General’s Chambers. The journey continues to be an uphill task.

Those who have had the privilege and opportunity to work with the late Anthony Kevin Morais have acknowledged his principled character and disciplined approach to undertaking his assignments, especially durng the 10 years that he worked with the MACC to prosecute cases related to corruption.

His case is similar to the case involving the senior Customs officer. It is opined by various quarters, based on current investigations and without prejudging the issue, that all it required of both of these gentlemen was to succumb to the “acceptance of bribe” culture and they would still be alive today.

What sets them apart is that both were men of integrity and honesty – a virtue which is sadly lacking among some Malaysians.

While we continue to gripe about the state of corruption in the country, we conveniently forget that those who offer bribes are equally to blame for this cancer in our society.

The building-up of the virtues of integrity and honesty, coupled with leading principled lives, is what it takes to combat corruption.

Sadly, what we have perfected is the culture of criticising the enforcement authorities for not being independent enough and not executing their duties diligently.

There continues to be the tendency to perpetuate the notion that it is acceptable to bribe as it is expected of us and will make life easy all around.

This line of corrupted thinking is an insult to our innate senses of good and evil, right and wrong. No doubt these two individuals had strong religious values.

In this respect, religious leaders should focus on inculcating positive values with respect to morality and ethical behaviour as enshrined in their respective religious doctrines. It is sad that some have taken a political stand and focused their efforts on criticising instead of nurturing values which will act as a natural defence to corrupt practices.

The death of both the above individuals should not be in vain.

Fighting corruption needs support from all quarters; not cynicism and innuendos.

We need to build up our values of integrity and honesty – this is the best and most effective way to rid our country of this scourge. Walter Sandosam Kuala Lumpur The STAR Home News Opinion Letters 19 September 2015

Kevin was not just a DPP, he was family too;

EVERY now and again, something happens that requires us to press the reset button in our priorities. Sept 16, 2015 was one such day. We had feared the worst although we prayed for the best.

On Malaysia Day, we received terrible news that the life of a loved one had been extinguished. Anthony Kevin Morais was not just a Deputy Public Prosecutor. He was family too.

For many years, Kevin worked tirelessly to put criminals behind bars. He did this working for the Malaysian Government and for a modest salary.

Where I work, we complain about the exchange rate and its impact on spending power. We never think about those who do their job with passion and a deep desire to uphold justice.

When we last saw Kevin two weeks before his murder, his last words were for my son to encourage him on his UPSR. Now we have to read about him in the past tense.

To those who committed this terrible crime, you have added the word murderer on your resume. There is only one place where such a resume has any value – hell.

RIP dear Kevin. Your reward will be from God. Tony Periera Petaling Jaya The STAR Home News Opinion Letters 18 September 2015

Kevin’s job kept us safe but it got him killed; A courageous DPP keen on confronting graft

Kevin’s job kept us safe but it got him killed

Every now and again, something happens that requires us to press the reset button in our priorities. Sept 16 was one such day. We had feared the worst. We prayed for the best.

On Malaysia Day, we woke up to the terrible news that the life of a loved one had been extinguished. Kevin Anthony Morais was not just a deputy public prosecutor.

He was family. For many years, Kevin worked tirelessly to put criminals behind bars. He did this working for the government and for a modest salary.

His job was to keep us safe from those who decided to make breaking the law their career. Here, where I work, we complain about the exchange rate and the impact on spending power.

We never think about those who do their job with passion and a deep desire to uphold justice and end up being dumped in an oil drum in a godforsaken place.

Until Wednesday morning, we had somehow hoped Kevin would be found. When we last saw Kevin two weeks before his murder, his last words were for my son and to encourage him for his Ujian Pencapaian Sekolah Rendah.

Now we have to read about him in the past tense. RIP, dear Kevin. Your reward will be from God. Tony Pereira, Petaling Jaya, Selangor. NST Letters You Write 18 September 2015

A courageous DPP keen on confronting graft

The murder of deputy public prosecutor Kevin Anthony Morais, in such brutal circumstances, is a sober reminder of the danger under which incorruptible and courageous civil servants live and work to uphold the law, without fear or favour, in the larger interest of society.

Kevin’s life spent in the service of his country was an example of a decent human being whom, in my official contact with him in my capacity as a member, and later chairman, of the Advisory Board of the Malaysian Anti-Corruption Commission,

I greatly admired and respected for his competence, professionalism and his deep-seated sense of justice and equity even as he was deter-mined to confront corruption in our national life.

His briefings were a great joy to listen to, always carefully prepared and presented in that almost unaccented English. He had no airs and graces; serious, yes, in discharging his difficult responsibilities, but he was always careful not to take himself too seriously. He had great intellect.

He was so good at what he was doing that there was no need for any histrionics. I shall miss him. In paying tribute to Kevin and at the same time extending my condolences to his family, I would like to take this opportunity to thank the police for their professional and thorough investigation into this case.   Tunku Abdul Aziz,Kuala Lumpur NST Letters You Write 18 September 2015

The game of gentlemen

YOU may not have heard of Nemani Nadolo, Asaeli Tikoirotuma and Vereniki Goneva. These Fijian players are fun to watch. This morning they met England at the opening game, by now you will know how well they played. In the last seven World Cups, their best performances were reaching the quarter-finals on three occasions.

In 1995 they did not even qualify. While they are at No 12 in the world rugby ranking (England is fourth), they are always spirited and are quite capable of springing a surprise or two. So, never underestimate them. England, on the other hand, won the World Cup in 2003 and was runners-up on two occasions.

They are hoping to win the second time. And the pressure on the English players is understandably tremendous. After all England is the birth place of rugby. The prize — the Webb Ellis Cup — in memory of the “founder” of the game, must go back to England. The only time they became world champions, it was played in Australia. They were humiliated in 1991 on home ground when they lost to Australia in the finals. Again they lost in the finals to South Africa in 2007 (France).

Starting yesterday, the Rugby World Cup is back, the 8th since 1987. Yes, it is a relative new comer to the sporting calendar, yet it is now the third greatest sporting event in the world (after FIFA World Cup and the Olympics). For rugby fanatics (there are many, in fact as many if not more than football fans) this is a real happening.

Once in four years they will be glued to their TV sets or in the stadiums watching the world’s greatest rugby players showcasing their best performances. Rugby is the best thing that has happened to humankind, if you believe the hard-core followers. It is after all a gentleman’s game played by true gentlemen.

Rascal games, that’s what they are, its detractors would argue. But in a rugby game, everyone behaves. Losers acknowledge their defeat. A football game is tainted by ill feelings. Everyone else is wrong when you don’t win. Losers sorely lose.

Just check on the remarks made by Sir Alex Ferguson, Jose Mourinho or Arsene Wenger when they lost. Wayne Rooney would lose his cool when he senses bad refereeing.

A rugby player would keep his composure. No chasing of referee. No bad blood. Send a son to play football and another to play rugby, you will see the difference.

Little wonder it is hard to find football in literary works. Some of the finest writers in English used rugby as the background of their celebrated novels. John Buchan best known for The Thirty-Nine Steps wrote Castle Gay, Thomas Hughes came out with Tom Brown’s School Days and Sir Arthur Conan Doyle had Sherlock Holmes’ sidekick, Watson playing rugby for Blackheath in The Adventure of the Sussex Vampire.

In the last seven World Cups, only once did the cup go to a nation in the Northern Hemisphere (England). Three teams have won the World Cup twice, New Zealand (1987, 2011), Australia (1991, 1999) and South Africa (1995, 2007).

The late President Nelson Mandela needed something to unite his nation. He found it in the form of rugby, a symbol of Afrikaner’s supremacy and racism. But on June 24, 1995, the South African team lifted the cup, inspiring South Africans to see a new hope in Mandela’s idea of a “rainbow nation.”

It wasn’t about sports, it was a political totem pole. Who will win this time?

I am biased of course for as a huge fan of All Blacks I put my money on them, the indisputable masters of the rugby universe. They have been the world’s number one nation the last five years.

Talk about consistency. It is in fact their middle name. Strategy, adaptability, skill?

Need I say more about how they razzle and dazzle with beauty and finesse on the field? And they have Ritchie McCaw, the maestro himself, the most capped and the most successful captain in the history of the team.

With him in the team, All Blacks can’t go too far wrong. But lest we forget, Ireland is a team to watch this time. They have a New Zealander as coach, Joe Schmidt, a tactician extraordinaire and they have one of the finest rugby players on their side, Jonathan Sexton.

England’s chances? Yes, Stuart Lancaster is a no-nonsense coach and they have some brilliant young players on their side. I would give them another four years to hone their skill to become world champions.

The English for now are pretty predictable. Then again, unlike the ball in a football game, that of rugby isn’t round. It bounces uncontrollably. The ball can simply go anywhere. Yes, only five countries have won the cup so far.

You can never know what the Pacific Islanders like Samoa, Fiji or Tonga can do. They have proven themselves to excel in seven-a-side tournaments.

You can never know what the Japanese, the Americans or the Argentines are up too. Twenty nations are competing in England, only one will emerge champions.

So, sit back and enjoy. The Rugby World Cup 2015 is a sporting spectacle unlike any other!

The Original All Blacks were the first New Zealand national rugby union team to tour outside Australasia.
Rugby is the best thing that has happened to humankind, if you believe the hard-core followers.

Sabah before Malaysia

LIFE is full of the unexpected. In late 1958, quite out of the blue, a letter franked British North Borneo arrived at the school where I was teaching in Pahang. It was from the director of Education, G.D. Muir, formerly of the Malayan Education (Colonial) Service.

It was marked “Personal”. We had not written to each other for some time. Douglas Muir had, at one point in his Malayan service, headed the Kedah Education Department at Alor Star where he came into close official contact with an uncle of mine, YTM Tunku Ismail Bin Tunku Yahaya, the last civil service-appointed menteri besar of Kedah.

I got to know Muir when he was a deputy director in Malaya. He spoke in his letter about a desperate need for qualified teachers to help improve the quality of secondary education in the colony.

Of all the places in the world, the British colony of North Borneo, today’s Sabah, had never, not even once featured in my wildest dreams as a place to work in.

I had to think very carefully if I would really want to work in a British colony after my own country’s independence from colonialism in 1957.

On May 8, 1959, I set out, bound for Jesselton on the MV Kimanis, one of a fleet of the ubiquitous trading ships plying the ports of Southeast Asia and owned by the Straits Steamship Company. Jesselton, the ramshackle capital of British North Borneo, still bore the scars of the heavy bombing inflicted on it by the Americans towards the tail end of the Japanese occupation.

The director of education himself was on the wharf meeting me and I was driven to his bungalow in a large Jaguar Mk VII motor car.

Muir kindly put me up for two nights before I moved into my new quarters. The Government English School Jesselton, where I reported for duty to Geoff Clarke, the most energetic headmaster I had ever come across, was an old all-attap construction on stilts.

The roof leaked every time it rained and it did rain a lot in the Land Below the Wind. Fortunately, after a few weeks of this miserable existence, a spanking new school was ready for occupation.

Sabah College was born, offering sixth form science classes, the first in the history of the colony. Bright young native boys and girls were brought out from the interior districts and put into special classes where they were given intensive English lessons by trained teachers from Malaya, Singapore, Australia, UK, Ceylon and Burma.

If secondary education was bad, imagine what it was like in the native vernacular schools. They lacked facilities and were staffed by teachers who themselves had only six years of schooling.

A native primary school teacher giving an English lesson could not even spell buffalo and this prompted Douglas Muir who was inspecting the school to intone in his usual kindly fashion, “Just write kerbau”.

British North Borneo was underdeveloped, and at least, by my reckoning, 50 years behind independent Malaya. As an indication of the level of development of the colony, according to the authoritative British North Borneo 1961 Annual Report, two years before becoming a component of the federation of Malayan states, North Borneo had a population of 454,421.

Of this number, less than 0.5 per cent received secondary education in government schools. If mission and Chinese schools were included, the figure would be 1.9 per cent. It was largely a country of illiterates and native participation in the administration of the country was non-existent.

Leaving aside educational opportunities, what about medical facilities? There were only two general hospitals in the whole colony, the Queen Elizabeth Hospital in Jesselton and the Duchess of Kent Hospital in Sandakan, providing, believe it or not, one bed for 677 people.

If you thought this was generous, guess how many government doctors there were in service. There were a staggering 18 government doctors or, put another way, one doctor for every 25,000 people.

Many Sabahans today believe they would have been better off if they had not come into the Federation of Malaya to become a new Malaysian state. What earthly chance would they have of survival given their backwardness in every respect — economic, social and political?

To quote my friend, Datuk Leslie Davidson, the author of East of Kinabalu, a brilliant account of life as a pioneer planter in the Labuk Valley, a self-confessed friend and lover of Sabah: “In the evening over a glass of whisky, he (Lord Cobbold, heading the Cobbold Commission set up by the British government to ascertain the wishes of the peoples of the North Borneo territories on the proposed new Federation of Malaysia) asked my opinion.

“I refused to comment. However, he persisted and pressed me for my opinion, off the record. I told him that it was my personal opinion that joining the Federation was the only possible route.

“If Sabah did not join Malaysia it would become part of Indonesia or the Philippines within a year or two.” The idea of independence and going it alone, outside of the “Greater Malaysia” arrangements was suicidal.

The British knew it, and sensible, far-sighted leaders such as Donald Stephens and Richard Lind, later to distinguish himself as state secretary of Sabah, knew it.

Richard was the best ever state secretary Sabah has ever produced. In all the circumstances, for anyone to think Sabah could have survived, let alone prospered, would be to languish in a fool’s paradise.

I continue to take a lot of interest in Sabah affairs and I am frankly amazed what orderly development has done for the state in just over 50 years as part of a federation of states.

The sluggish British North Borneo of my brief acquaintance is today’s thriving Sabah, cruising in the fast lane as she celebrates another Malaysia Day on Sept 16, 2015.

Tunku Abdul Aziz NST Opinion 16 SEPTEMBER 2015 @ 11:38 AM

A genius ‘sacrifices’ his sanity

A GRIPPING true movie about a genius who went mad opens in cinemas in Malaysia today. Whether you are a chess fan or not, you should see Pawn Sacrifice, the biographical film about the tragic life of Bobby Fischer, considered by many as the greatest chess player of all time.

Steven Knight, the film’s screenwriter, said: “Here is a man who, in my opinion, chose chess over sanity.” Tobey Maguire, who played the role of Peter Parker in Spider-Man, admitted he was “webbed” to the eccentric persona of Fischer for years. It led to Maguire deciding to produce Pawn Sacrifice and act as Fischer in the movie.

In real life, Fischer was seen as the great American hero who turned villain when he defied UN sanctions against Yugoslavia and played some chess matches for money in the war-torn country in 1992.

It led to Fischer being hunted by the United States, the toughest sheriff on earth. Fischer, the fugitive, was arrested in Japan in 2004 and detained for nine months for using an invalid US passport.

Subsequently, Iceland turned out to be the white knight that charged to Fischer’s rescue by offering him citizenship before he could be extradited to the US.

Icelanders warmly welcomed Fischer because he had made their country famous after playing the “Match of the Century” in Reykjavik in 1972 against the then reigning world champion Boris Spassky of the Soviet Union.

Against the backdrop of the Cold War between the US and the Soviet Union, the world watched the proxies of these two superpowers battle it out on a chessboard.

It was great minds at war, as Fischer and Spassky rained mental blows on each other, much in the fashion of the Fight of the Century between Muhammad Ali and Joe Frazier. Fischer was Ali, so to speak, controversial and colourful.

Bobby Fischer in the 1970s. ‘Pawn Sacrifice’ details Fischer’s legendary match-up against Russian Boris Spassky at the height of the Cold War.

Chess is brutal on the mind. That’s how Albert Einstein, whose name is synonymous with “genius”, looked at it.

“Chess holds its master in its own bonds, shackling the mind and brain so that the inner freedom of the very strongest must suffer,” said Einstein.

Fischer’s mind suffered its own demons. After living in seclusion for decades, he ranted against the governments of Japan and the US for making him feel like a cornered king on the chessboard.

He called the then Japanese Prime Minister Junichiro Koizumi “mentally ill” and a “stooge” of former US President George H.W. Bush.

“They (Koizumi and Bush) are war criminals and should be hanged,” raged Fischer.

Though Fischer had a Jewish mother, this did not stop him from his anti-Semitic tirades and he even praised the Sept 11 terrorist attacks on the World Trade Center, saying America should be “wiped out”.

Fischer died of kidney failure in 2008 at the age of 64 — significantly one year on earth for each square on a chessboard. Once the hero of millions of people, his funeral was attended by only five persons.

The title of the Bobby Fischer movie is based on a move where a player sacrifices a pawn for the greater good, which usually leads to better positional play.

This same philosophy will put us in a better financial position if we “sacrifice” some of life’s pleasures, like eating out less at high-end restaurants or spending less on indulgent things.

Meanwhile, another man, whose cerebral power is said to be as strong as Fischer’s, will grace the mental landscape of Malaysia.

The foundation, headed by the flamboyant chess wizard Garry Kasparov who was world champion from 1985 to 1993, will co-sponsor the Lim Chong Memorial Championship on Sept 24 at Cititel Mid Valley hotel.

Lim Chong, who was a pioneer chess columnist in the early 1980s for the New Straits Times Group, had contributed much to the game in Malaysia.

The 56-year-old succumbed to a heart attack in 2010 while on a flight back to Malaysia from London where he had been on assignment.

The Lim Chong Memorial Championship, which is in its fifth year, has been elevated to national-rated status this time following its recognition by the Kasparov Chess Foundation.

Chess is classless. Everybody can play it... scientists, poets, coffee-fuelled Bohemians, blue-collar workers, average Joes, et al. It’s okay even if you don’t have money as it’s not the kind of sport where you have to buy pricey golf clubs, racquets or boots.

And it is also okay if you are a bit crazy. Egos and eccentricities, at times, do come into play over the chessboard. So, if you are interested to put your mind to the challenge, do come and take part in the Lim Chong Memorial Championship.

Our media law limitations

THE expression “media law” is born out of convenience. Just as the term “media” is used inclusively to refer to both the old (print) media as well as the new (digital) media, likewise, the expression “media law” refers to a mosaic of statutes (many of which, in our local context, are so obviously antiquated) and a cluttered and growing body of common law principles (which the legal profession refers to as “case law”).

Apart from codes of conduct and ethics for media professionals, the expression “media law” spans fundamental concepts, such as “the freedom of the press” a wide range of ordinary laws covering defamation (civil and criminal), sedition, contempt of court (civil and criminal), blasphemy, copyright, plagiarism, privacy, confidentiality and censorship.

Broadcasting, cinematography, and advertising are also part and parcel of media law although they tend to be sidelined or forgotten when seminars and discourses are being held on media law.

The question whether the media in Malaysia is free or not (and if free, “how free”) is more often than not met with a negative answer.

The 2014 World Press Freedom Index by “Reporters Without Borders”, which shows Malaysia’s present ranking at 147th place out of 180 countries, is invariably pointed out as evidence of such lack of freedom.

The Malaysian government consistently maintains that the local press is free, but within limits and constraints imposed by law.

Press freedom in Malaysia is guaranteed in Article 10 Clause (1) of the Federal Constitution, which states that “Every citizen has the right to freedom of speech and expression”, but that right is “subject to Clauses (2), (3) and (4)”.

The right is given only to citizens, and it is not absolute but subject to certain well-defined restrictions, including the security of the Federation, public order, morality, protecting the privileges of Parliament or State Assembly, contempt, defamation, incitement to any offence and sedition.

In Public Prosecutor v Pung Chen Choon (1993), the Supreme Court held “The Malaysian press is not as free as the press in India, England or the United States of America, and cases from these jurisdictions are of little relevance”.

Malaysian journalists and social media activists should remember that whilst they are free to write what they wish, they are always subject to these restrictions and limitations.

Our law on privacy and contempt of court has always been grounded in common law.

As long as Article 10 remains in force, so do the limitations and restrictions.

The Printing Presses and Publications Act 1984 (PPPA) is an updated version of the earlier Printing Presses Act 1948 and the Control of Imported Publications Act 1958.

As the law was originally enacted for the print media, many quarters question whether it is still relevant today, after the media has gone digital?

The correct answer to that is whilst it is true that the licensing and permit requirement cannot apply to blogs and social media, Section 8A of the act (which criminalises the publication of false news) is still relevant and applies to the new media.

New media journalists should take note that whilst they need not comply with the PPPA, they are, nevertheless, subjected to the Communications and Multimedia Act 1998 (CMA), especially Section 211 (prohibition on offensive content) and Section 233 (improper use of network facilities or network service).

On July 27, the Malaysian Communications and Multimedia Commission (MCMC) blocked access to the Sarawak Report portal under these two provisions of the law.

These actions by the MCMC give new meaning to Section 3(3) of the CMA, which states that “Nothing in this Act shall be construed as permitting the censorship of the Internet”, as well as MSC Bill of Guarantees, which states “No. 7. Ensure no censorship of the Internet”.

Aside from these constraints and limitations, media professionals in this country encounter two other problems – one, many of our existing statutes are antiquated; and two, our continued dependence on common law principles in many aspects of our media law.

Our law of defamation is virtually obsolete. Canada has long recognised the defence of responsible journalism, whilst the United Kingdom had for a long time recognised the defence of innocent dissemination (Defamation Act 1996) and recently a new defence of “truth, honest opinion and publication on a matter of public interest” (Defamation Act 2013).

The United States had given immunity or protection to Internet Forums (Communications Decency Act 1996), whilst Australia had revamped its defamation law in its Uniform Defamation Act 2005.

Our law on privacy and contempt of court had always been grounded in common law, although we know that in many jurisdictions, these laws are now contained in specific new legislation.

Since a substantial portion of our media law is contained in a growing body of case-law which only experienced lawyers can comprehend, the average citizen (and journalist) usually finds it difficult (if not almost impossible) to differentiate between defamation, sedition and contempt, on the one hand, and fair comment, humour, parody and satire, on the other.