Malaysiakini's challenge on the constitutionality of the Anti-Fake News Act 2018 has been dismissed by the High Court in Kuala Lumpur today.

Justice Azizah Nawawi said since the news portal is not charged under the Act, the challenge was premature.

She said Mkini Dotcom Sdn Bhd - the operators of the news portal - had told the court that their application was not frivolous and vexatious as the impact of the Act is to remove the defence of reportage which will be available to the company.

This as well as placing an insurmountable burden on it to ensure that each and every item which is published by way of reportage or opinion is true in every sense.

This, the judge said, renders the portal's right to freedom of speech and expression under Article 10(1) illusory.

She said the new Act is a penal law which creates a criminal offence for any person who "by any means, maliciously, creates, offers, publishes, prints, distributes, circulates, or disseminates any fake news or publication containing fake news are liable to a maximum fine of RM500,000 or up to six years jail or both.

"It is common ground that the applicant has not been charged with an offence under the Act. Therefore, the issue here is whether the application, a pre-emptive move by the applicant to strike down the legislation is premature and renders the applicant without the required locus standi.

"I am of the considered view that this application is premature as the applicant has not been charged with any criminal offence under the Anti- Fake News Act 2018," she said.

Justice Azizah said in any judicial review application, Order 53 rule 2(4) Rules of Court 2012 provides that only a "person who is adversely affected by the decision, action or omission in relation to the exercise of the public duty or function" is entitled to make such application.

"In this case, the company has not been charged with any offence under the Anti-Fake News Act 2018, his rights not been affected. His rights will only be affected if he is charged under the said Act, and only in such a situation can he challenge the constitutionality of the Act.

"To allow the application at this stage will open the floodgates for any spirited litigant to simply challenge the constitutionality of a law he does not like," the judge said.

Justice Azizah further cited the Malaysian government vs Mat Shuhaimi Shafiei case where the Federal Court held that the constitutionality of the Sedition Act 1948 should be challenged in the criminal proceedings for the purpose of impugning criminal charges and not in a civil application for a declaration.

In rejecting the application, Justice Azizah ordered Malaysiakini to pay RM5,000 costs.

'Judgement flawed'

Lawyer N Surendran, who appeared with Latheefa Koya for the news portal, said it was a disappointing decision in light of the present government's decision to review the legislation which was passed by the BN government before the 14th general election.

"It seems the judiciary remains the same despite a change in government," he said.

He opined today's judgement was also fundamentally flawed because the court totally misinterpreted the Federal Court decision in the Mat Shuhaimi case by holding that a penal law could only be challenged in criminal proceedings and not by a civil application.

"Suhaimi's case does not say that," he said adding Malaysiakini is likely to appeal the case to the appellate court.

Mkini Dotcom Sdn Bhd had named the home minister and government as respondents and sought a declaration that the Act is in violation of Articles 5(1) and 10(1) of the Federal Constitution read with Article 8(1) and was therefore unconstitutional and as such the gazette of the Act be revoked.

Malaysiakini filed the challenge on April 27.