ARTICLE 19 is concerned that amendments to create new criminal offences of “disclosing information” in Section 203A of Malaysia’s Penal Code are alarmingly broad. If the provision enters into force, it will threaten freedom of expression and information for all people, entrenching secrecy in public affairs and undermining accountability for wrongdoing. Section 203A of the Penal Code should be repealed.
The Penal Code (Amendments) Bill (the Bill) was passed following its second reading in the Dewan Rakyat (Parliament) on 22 October 2014. The amendments will come into force when they are officially gazetted, unless they are repealed beforehand.
The Bill creates two new criminal offences through the addition of Section 203A to the Penal Code, under the title “Disclosure of Information”. Section 203A reads:
“(1) Whoever discloses any information or matter which has been obtained by him in the performance of his duties or the exercise of his functions under any written law shall be punished with fine of not more than one million Ringgitt, or with imprisonment for a term which may extent to one year, or with both.
(2) Whoever has any information or matter which to his knowledge has been disclosed in contravention of subsection (1) who discloses that information or matter to any other person shall be punished with fine of not more than one million Ringgitt, or with imprisonment for a term which may extend to one year, or with both.”
In an explanatory statement accompanying the Bill, its sponsors state that the amendments are targeted at “organised criminal groups”.
There are a number of serious concerns with Section 203A of the Penal Code from a freedom of expression and information perspective. This statement briefly outlines international human rights standards on freedom of expression and access to information, and then assesses the compatibility of Section 203A of the Penal Code with those standards.
International standards
International human rights law gives robust protection to freedom of expression and information, specifically the freedom for all people “to seek, receive, or impart information and ideas” (Article 19, Universal Declaration of Human Rights). This captures the right to express and receive communications of any idea or opinion, including political discussion, journalism, religious discourse and more. Importantly, it includes expression that is critical of those exercising political authority, and also extends to protect speech that some may regard as deeply offensive.
A critical component of the right to freedom of expression is the right of all individuals to access information held by or on behalf of public bodies, as recognised by the UN Special Rapporteur on Freedom of Expression. Freedom of expression, in particular access to information, is a necessary condition for the realisation of transparency and accountability in democratic societies. It enables oversight and scrutiny of the conduct of government and public bodies through open debate; it fosters public participation in decision-making, and empowers people to exercise other rights. To give maximum effect to this right, public bodies are under a duty to proactively disclose information of public interest, and to “make every effort to ensure easy, prompt and effective and practical access to such information” (Human Rights Committee, General Comment No. 34, 12 September 2011, at para. 18 – 19).
The right to freedom of expression and information also encompasses the right of individuals to disclose information without authorisation (whistleblowing), where the purpose is to show wrongdoing and the disclosure is in good faith. Whistleblowing plays a crucial role in all societies, especially to expose human rights violations, promote public safety, promote transparency and ensure accountability by exposing wrongdoing and putting in the public domain information that cannot legitimately be suppressed. UN and regional experts on freedom of expression regard the protection of whistleblowers as a necessary “safety value” in democratic societies. As such, the experts state that whistleblowers should be protected against legal, administrative or employment-related sanctions for their actions. In specific fields, such as anti-corruption, international instruments require States to undertake such measures (for example: Article 33, UN Convention Against Corruption, 2005). The right to freedom of expression also protects the right of all individuals to report on or discuss such disclosures once they are in the public domain.
The right to freedom of expression and access to information is fundamental but not guaranteed in absolute terms. Under limited circumstances, restrictions on the right can be legitimate. However, restrictions cannot put in jeopardy the right to freedom of expression itself, and restrictions should be the exception and not the norm. International standards require that any restriction on freedom of expression meet a three-part test:
- Legality: restrictions on freedom of expression must be provided for by law. There must be a legal basis for the restriction that is formulated precisely enough to enable an individual to regulate their conduct in conformity with that law, and is in a form accessible to the public. Ambiguous laws that grant unfettered discretion to authorities fail the test of legality, as they can easily be abused.
- Legitimate aim: any restriction on freedom of expression must be to protect the rights or reputations of others, national security, public order, or public health or morals. It is not legitimate to restrict freedom of expression or the disclosure of information simply to protect the government or any public official from embarrassment, criticism or the exposure of wrongdoing.
- Necessity: any restriction on freedom of expression must be necessary in a democratic society. This requires that restrictions are not overbroad, and are the least restrictive means of achieving the legitimate aim. A restriction will not be considered necessary unless it can be demonstrated in a specific and individualised fashion what the precise nature of the threat is, and how the restriction on expression directly addresses that threat in the least restrictive manner.
In relation to the right of access to information, this test applies to require that a public body should disclose information when requested unless: the information concerns a legitimate, protected interest listed in law; disclosure threatens substantial harm to that interest, and the harm to the protected interest is greater than the public’s interest in having the information.
Section 203A violates the right to freedom of expression
ARTICLE 19 finds that Section 203A is so ambiguous that it may be applied to restrict almost any forms of information disclosure or dissemination, as well as any subsequent reporting or debate on those disclosures.
Section 203A fails all three parts of the test for legitimate restrictions, reversing the assumption in favour of freedom of expression and making restrictions and censorship the norm:
1. Section 203A fails the test of legality
Section 203A is too vague; it is drafted in broad and legally imprecise language where it is difficult to discern the basic elements of the criminal offence. The provision is therefore open to arbitrary interpretation and application, lacking the legal certainty to ensure that the right to freedom of expression is protected.
The breadth of subsection (1) is quite staggering. It prohibits the disclosure of “any information or matter” of any kind that a person has obtained “in the performance of his duties or the exercise of his functions under any written law”.
Firstly, there is no requirement for the disclosed information to have been classified as secret or to be otherwise confidential or professionally privileged. The provision could therefore be applied to prohibit the disclosure of information that is already in the public domain, making it uncertain what kinds of information the provision applies to.
Secondly, there is no need to prove that the disclosure caused or was likely to cause harm, or any requirement to establish intent on the part of the person making the disclosure to cause harm. A person could therefore be prosecuted for sharing information that does not actually cause any harm to a specified interest, making it difficult to predict when authorities will act on an information disclosure and what defences could apply.
Thirdly, it is unclear who the provision applies to. While it may be read as limited to public servants exercising statutory duties or functions in their course of employment, it could feasibly be read much more broadly to cover any person who “performs duties” or “exercises functions” that are regulated by law. This could cover all people communicating information on anything, in the course of their employment or outside of it.
Subsection (2) amplifies this ambiguity further still. It makes it an offence for a second person knowingly in possession of wrongly disclosed information to disseminate that information further. Apart from the ambiguity of Subsection (1) making it almost impossible to determine whether information has been wrongly disclosed or not, subsection (2) creates substantial uncertainty for the public, in particular for journalists and other social communicators, on what sources of information they can legitimately share or comment upon. That ambiguity is likely to have a severe chilling effect on the exercise of the right to freedom of expression, especially for information that is sensitive or adverse to the government or other power holders.
In relation to legitimately secret information held by public bodies, UN and regional experts on freedom of expression have emphasised that it is the responsibility of those public bodies to keep that information under their control. They stress that laws that subject other individuals, including journalists and civil society representatives, to criminal liability for further disseminating leaked information should be repealed.
2. Section 203A does not pursue a legitimate aim
It is difficult to discern from Section 203A what legitimate aim is pursued by the severe restrictions it places on the right to freedom of expression. The explanatory memorandum to the Bill offers only that the amendments are “targeted at organised criminal groups” without providing more detail. Following the passage of the bill in Parliament, government officials argued Section 203A was necessary to stop government leaks of confidential information.
The national security justification for Section 203A is contradicted by the inclusion of the new provision in Chapter XI of the Penal Code, which broadly concerns “false evidence and offences against public justice.” Section 203A does not appear to be tailored to protect the administration of justice, but would instead make more sense in Chapter VI “offences against the State” or Chapter IV “offences by or relating to public servants”.
International standards are clear that no person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure. A legitimate national security interest is one where the genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force.
Section 203A of the Penal Code fails to comply with these standards.
Firstly, the lack of any requirement for harm to be proven to a legitimate interest would allow the government to suppress the disclosure of any information on its own whim. Neither “secrecy” nor the absolute control over publicly-held information can be exerted as bases for withholding information or for imposing sanctions for disclosures or the reporting of disclosures.
Secondly, even if a harm to a legitimate aim were proven, there is no defence available for disclosures that are made in the public interest, for example to expose serious wrongdoing. None of the general defences available in the Penal Code apply to meet this shortcoming. The provision is therefore open to abuse, and could be used to prosecute whistleblowers or those that would report on or publicly discuss disclosed information that is embarrassing to the government.
3. Section 203A is not necessary in a democratic society
Such a broad restriction on the disclosure of information, without any requirement to prove harm to a legitimate interest and without any defence for public interest disclosures, is not necessary in a democratic society. The unfettered discretion it grants authorities to punish the sharing of information in relation to matters in the public interest makes the right to freedom of expression in Malaysia meaningless – instead entrenching secrecy and censorship as the standard rather than the exception.
If it is the intent of the amendment’s supporters to protect national security by specifically prohibiting the unauthorised disclosure of information harmful to legitimate national security interests, then the provision should be re-drafted, narrowly tailored to this objective. This should include a protection for good-faith disclosures of wrongdoing that are in the public interest.
Conclusion
ARTICLE 19 finds that Section 203A violates international human rights law, posing a serious threat to freedom of expression in Malaysia. We recommend that Section 203A is not gazetted, but is instead repealed in its entirety.
State and Federal governments in Malaysia should undertake concerted efforts to increase transparency of public bodies and foster a culture of accountability. This requires the enactment of Freedom of Information laws at the State and Federal level, and in States where those already laws exist, such as in Selanagor and Penang, they should be enacted and fully implemented.