Malaysiakini News

Malaysiakini mounts constitutional challenge against Anti-Fake News Act

Hafiz Yatim  |  Published:  |  Modified:

UPDATED 1.32PM | News portal Malaysiakini today filed a judicial review application to challenge the constitutionality of the recently passed Anti-Fake News Act 2018.

The portal is the first to file the challenge against the controversial law which had been highly criticised by federal lawmakers and also human rights groups.

Malaysiakini through its company Mkini Dotcom Sdn Bhd named the Home Ministry and the Malaysian government as respondents in the case filed at the Kuala Lumpur High Court.

The application was filed by the law firm of Daim and Gamany.

The portal is seeking leave for a declaration that the Anti-Fake News Act 2018 is in violation of Article 5, and Article 10 (1), read together with Article 8 and therefore unconstitutional, and should be declared null and void.

Article 5 concerns the liberty of a person while Article 10(1) concerns freedom of speech.

It is also seeking a mandamus to compel the court to direct the Home Ministry to revoke the gazetted law dated April 11 this year which makes the bill to become a law.

Malaysiakini is also seeking any other relief deemed fit by the court.

Mkini Dotcom's chief executive officer and director, Premesh Chandran, in his supporting affidavit to the application, said the portal has been in operation since Nov 20, 1999, and since then, also operates as part of the Mkini Group.

Premesh said the law penalises anyone that maliciously creates, offers, publishes, prints, distributes, circulates or disseminates fake news.

Fake news under the Act is defined as "any news, information, data and reports which is or partly false, whether in the form of features, visuals, or audio recordings or in any form of capable of suggesting words or ideas."

Premesh claimed the portal produces articles by way of reportage and hence the impact of the new legislation is to remove the defence of reportage that is available to the portal.

He further alleged that the Act places an insurmountable burden on the portal to ensure each and every article published by way of reportage or opinion is true in every sense.

Hence, he added it affect the portal's rights under Article 10 (1) (a) for freedom of speech and expression as illusory.

Premesh further claimed that the Act is in violation of Article 5(1) and Article 10 (1) both read together with Article 5.

This follows that it violates its right of livelihood which is protected under Article 5 and it violates Article 10 (1) (a) as it is not in accordance with the rule of law which is part of the basic structure of the constitution.

He further said that the Act is not intelligible, clear and predictable and is instead vague and arbitrary.

Premesh also claimed the Act does not come within the permitted heads under Article 10 (2) (a) and is therefore unconstitutional and null and void.

"Therefore the action of the respondents in bringing this Act into force is unreasonable and abuse of power because the Act is unconstitutional," he said.

Lawyer N Surendran, who is part of legal reform group Lawyers for Liberty (LFL) said Malaysiakini is the first to challenge the validity and constitutionality of the law and hence, it will be a test case.

"Being a news portal, which (the Act) affects its very business, it has the locus standi (legal standing) to make the challenge," he said.

Premesh told reporters after the filing that other interested groups who are also affected by the new legislation could help by joining in this action.

He said in order to counter fake news, the government must be transparent and provide true facts instead of leaving matters hidden.

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