COMMENT | A dark day for journalism

COMMENT | Sept 13 was a dark day for journalism - two editors of The Edge face charges under little-used provisions for criminal defamation in the Penal Code while the group editor of the New Straits Times (NST) was reportedly “culled” following alleged interference by Umno.

These two incidents are an affront to the free and fair functioning of the press in Malaysia which is already beleaguered by a host of laws against it, such as the Official Secrets Act, the Printing Presses and Publications Act, the Sedition Act, and the Communications and Multimedia Act, amongst others.

The avenue of criminal defamation against journalists represents another reprehensible means used by the authorities to control reporting by the media while the ownership of media by political organisations or people connected to them results in an inordinate control of media groups such as the NST and The Star.

Journalists have to routinely grapple with such constraints when they go about their work and independent media such as Malaysiakini have been harassed by the authorities and legal action taken against them for merely doing their job.

All of them deserve the support not only of all journalists and media organisations but the public too, for without their efforts, wrongdoings cannot be unearthed, keeping the country in the dark about many important things, such as 1MDB.

The free press is a vital arm of the democratic press.

For them to do their jobs properly, journalists have to be given leeway to do so by their owners who must be prepared to resist political pressures and must not use their platforms for their own narrow purposes. The authorities need to allow the space for them to operate as provided for in the law, not hinder them in their legitimate work.

The latest act to charge journalists for criminal defamation is particularly heinous, as we shall explain. Recently, a deputy minister used the same avenue to make a report against a prominent opposition politician, resulting in the police investigating the case.

The Edge’s former editor-in-chief Azam Aris has been charged with criminal defamation for helping to report the abnormal surge in the price of penny stocks in 2020 and 2021. Criminal defamation of Kua Khai Shyuan, DGB Asia Bhd, Trive Property Group Bhd, Metronic Global Bhd and MNC Wireless Bhd over articles The Edge published on how penny stocks were manipulated by hidden hands on Bursa Malaysia were alleged. Another person, an editor with The Edge, M Shanmugam, was overseas and will face similar charges upon his return.

I personally know both Azam and Shanmugam and have worked alongside them for decades as colleagues and competitors. I have high respect for them and their contribution to journalism and consider them to be among the best business journalists in the country. They should not have to face these charges.

Up to two years in jail

As explained by The Edge publisher and chief executive Ho Kay Tat in a statement titled ‘Why charge editors that had exposed stock market manipulation?’, the charges originated from two articles in The Edge weekly, ‘Hidden hands behind penny stocks surge under scrutiny’ (April 12, 2021); and ‘Hidden hands behind penny stock surge’ (Sept 21, 2020).

“The IO (investigating officer) told our editors that The Edge was being investigated for criminal defamation under Section 500 of the Criminal Penal Code. This was after a police report was lodged by Kua, a businessman who is a minor shareholder and director of a few of the companies whose shares were trading in a volatile pattern over several months in 2020,” Ho said.

This is what Section 499 of the Penal Code says in defining defamation: “Whoever, by words either spoken or intended to be read or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm the reputation and shall also be liable to fine of such person, is said, except in the cases hereinafter excepted, to defame that person.”

Section 500 sets out the punishment as follows: “Whoever defames another shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

Note that this law is a relic dating back to colonial days. It is inconceivable in this day and age that the government’s prosecutorial powers and offices are being used in essentially what is a civil case, raising reasonable questions as to why such cases are being prosecuted at government expense.

The so-called aggrieved parties being corporates and a director of the companies involved have substantial resources of their own to start civil proceedings against The Edge if they feel they have recourse and should not be allowed to use loopholes in the law to force prosecution against the press.

After all, the attorney-general has the sole discretion to prosecute under the Constitution and he could have used those powers to advise those making the reports to take their own civil action. No sane person would fault him for doing that for that will be a proper exercise of his discretionary powers.

Instead, the AG faces the risk of bringing disrepute to his office by continuing with the prosecution. He should forthwith use his power to stop this needless prosecution which is a waste of precious public resources, especially since the law provides for exceptions in criminal defamation.

An exception pointed out under Section 500 of the Penal Code reads thus: “Ninth Exception - It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.”

Clearly, the imputations were made in the public interest - the sharp unexplained rise in the price of small market value stocks which can be easily manipulated for gain by unscrupulous people and lead to losses by investors and loss of confidence in the market.

Can the prosecution actually prove the article was made in bad faith? Didn’t the gyrations in the stock price actually take place? With such issues at hand, it is impossible to understand a decision to prosecute, especially at government expense when there are so many other pressing cases at hand not attended to.

And then one has to ask, did the authorities investigate the movement in share prices? Was anyone brought to book? If not, why not? Why are those who report these prosecuted while those who allegedly perpetrate these crimes remain free? Such a system stinks.

Attempt to sway narratives

Over to NST now, where those in the media industry have noted brave but fair editorials and opinions over the Najib Abdul Razak case in recent times and a more fair and independent stance. But now it is all over, sadly, because of interference by Umno, according to a report from The Vibes titled ‘NST reporter to be culled following alleged Umno interference?’

The report said the appointment of key media personnel in NST was interfered with by Umno people in an effort to sway narratives in their favour for the ensuing election campaign, including the impending removal of NST group editor Ahmad Lokman Mansor.

It added that staff had sent a petition to PM Ismail Sabri Yaakob but to no avail. On Sept 13, the NST announced that Farrah Naz Karim has been appointed the new group editor of NST to replace Lokman.

The control of key media by political parties has been a long-standing problem in Malaysia with Umno’s links to NST/Berita Harian and Utusan Malaysia and MCA’s links to The Star. Many media owners are known to be sympathetic to the government of the day.

For press freedom to flourish, the infamous Printing Presses and Publications Act needs to be culled, instead of the NST editor. This act gives enormous powers to the home minister to approve and remove licences. In fact. The Edge more recently in 2015 and The Star a long time ago in 1987 were suspended under this act.

Free and fair reporting in Malaysia was propagated mainly by online media including Malaysiakini, which while being subject to the laws of Malaysia, has no licensing requirements to meet.

Malaysia needs to move forward in terms of press freedom instead of backward as the two new incidents show. It needs a comprehensive review of existing laws and rules, something this backdoor government is incapable of doing.

P Gunasegaram has worked as an editor for all the media groups mentioned in this article, except Utusan Malaysia, at one time or another.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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