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Malaysia, Covid-19, And The New Fake News Ordinance: Is There A Reason To Be Apprehensive?

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coronavirus people

Authors: Harsh Mahaseth and Gursimran*

On 11 March, 2021, the Emergency (Essential Powers) (on disseminating misinformation No. 2) Ordinance 2021 (“The Ordinance”) was issued on the basis of Article 150 (2B) of the Federal Constitution  (“Constitution”) by the Malaysian King (“Yang di-Pertuan Agong”). The Ordinance seeks to regulate misinformation on COVID-19 through the re-enactment of the Anti-Fake News Act 2018 (“AFNA 2018”), while the country is in a nationwide state of emergency. Malaysia is a Parliamentary democracy with a Constitutional monarchy, but the Constitution does not guarantee the right to freedom of information. With the suspension of the democratic system, these authoritarian tactics erode the leftover scrutiny and accountability that is expected from the Government.

Earlier, the AFNA 2018 was repealed through the Anti-Fake News (Repeal) Bill 2019 because the Government was satisfied that there were enough laws to penalise fake news, such as the Penal Code[Act 574], the Printing Presses and Publications Act 1984 [Act 301](“PPPA 1984”) and the Communications and Multimedia Act 1998 [Act 588]. Despite reiterating similar positions in the recent past, it re-enacted the law with amendments that are detrimental to media freedoms and jeopardised constitutional guarantees such as Article 10(1)(a) of the Constitution on the right to freedom of speech and expression not violating the three Rs namely, Race, Religion, and Royalty.

The new law defines ‘fake news’ as “any news, information, data, and reports, which is or are wholly or partly false relating to COVID-19 or the proclamation of emergency, whether in the forms of features, visuals or audio recordings or in any other form capable of suggesting words or ideas.

While this definition is narrower than its previous one because the objective is to curb fake news relating to the pandemic, the Government has failed to explain how and when can a piece of news can be categorised as false. The punishment for its violation is a fine of 100,000 Ringgit ($24,120) or imprisonment for 3 years or both. The threshold of criminal liability has been lowered from ‘maliciously’ to the ‘likelihood of fear or alarm’ that the dissemination of fake news will cause in public (Article 4).

Moreover, the authorised officer is supposed to communicate to the violator that he must remove the information within 24 hours. But there is no clarity on whether the person must have actual or constructive knowledge on the dissemination. This is detrimental to media freedoms. The right to media freedom has no explicit mention in the Constitution. However,  in Mkini Dotcom Sdn Bhd v. Home Minister and Ors., the High Court recognised free press as a constitutional right and not a privilege under Article 10 of the Constitution. It observed that the Deputy Minister decision of rejecting the publication permit under the PPPA 1984 without the want of reason is a perverse decision, illegal and unreasonable in nature.

There are high chances that the Ordinance, especially during a state of emergency, can be misused to target political parties and postpone general elections. The Government has already postponed the implementation of the Undi-18, which jeopardises the right of universal adult suffrage of more than 1.2 million youths. The Undi-18 was allowed through the Constitution (Amendment) Act 2019 in July 2019 to reduce the voting age eligibility from 21 to 18 years by amending Article 119(1)(a) of the Constitution. Recently, a judicial review application has been filed in the High Court against the Prime Minister and the Election Commissioner challenging the unnecessary postponement of Undi-18.

Malaysia has also been engulfed in political instability for a long time after the abrupt resignation of PM Mahathir Mohamad of the Pakatan Harapan coalition. The historic collapse of the Pakatan and the appointment of PM Muhyiddin Yassin without the public mandate is a reason why the Government would want to stay in power no matter what. There is a general distrust in the public as they have been deprived of a stable and accountable Government from time to time.

Although the Ordinance reflects the structural issues within the Government, it targets institutions by criminalising any kind of direct or indirect financial assistance (Article 5). Also, during this pandemic, there is a need for accurate information to be released, and that too in a manner that can be easily understood by the entire population. But, there is the hazard of seeing fake news being mixed with what is real, something that the citizens have not found easy to discern difference. It proves detrimental for rural people who find it difficult to identify and verify the news sources, according to Dr Serina Rahman, Visiting Fellow at the Malaysia Studies Programme. Hence, they might violate the law even without knowing about it. The Ordinance considers the self-incriminating statement of the accused, including the documents seized from him before or after his arrest, as admissible in evidence (Article 12 & 13). The rule against self-incrimination is widely protected in most of the Constitutions around the world.

Moreover, they may also then be punished without the right to a hearing because the Court has the power to issue an order for the removal of the publication on an ex parte application. But the Court cannot set aside an order if the Government orders them to do so (Article 8.3). Malaysia also uses its colonial-era Sedition Act 1948 religiously, which criminalises hatred, contempt, or excites disaffection towards the members of the Royal family to target free speech. These measures certainly fail to live up to the international standards of freedom of speech and expression. It unequivocally protects the right to seek and impart information such as Article 19 of the Universal Declaration of Human Rights 1948 and International Covenant on Civil and Political Rights 1966, respectively.

Malaysia is one of the founding members of the Association of Southeast Asian Nations alongside Singapore, Thailand, and others, which also has a Human Rights Declaration 2012. The Declaration under Article 23 protects the right to information, speech-free, and media freedoms. Despite the existence of regional non-binding human rights instrument, Singapore and Thailand have also failed to protect this right. Singapore’s Protection from Online Falsehood and Manipulation Act 2019 gives a minister of the Government overreaching powers to declare the information posted online as false. The violator is required to either publish a “correction order” of the Government on their platform or simply remove the post in the public interest. Despite the fact that the Act has a very broad and vague definition of ‘public interest’ (Article 4), which could almost encompass everything said by the Government, the High Court has upheld its constitutionality. Whereas the Government of Thailand is managing disinformation through its Anti-Fake News Centre, Vietnam has introduced fines, and Indonesia is still battling falsehood despite its enhanced digital infrastructure.

With a rise of measures that aim to stifle freedom of speech and free press, it is the need of an hour to adopt a mechanism to fact-check information circulating online. In such unprecedented times, it is also up to the respective officials to help clarify the measures taken by the Government and also try to discern the fake news. Such a step could help in strengthening the Government’s position within the public. With the proper hindsight, amendments to the Ordinance, and a mechanism to disseminate authentic information, there is a possibility to use the fake news law to build confidence among the public rather than what it looks like right now.

*Gursimran is a final year student at the National University of Study and Research in Law, Ranchi.

Harsh Mahaseth is an Assistant Lecturer at Jindal Global Law School, and a Research Analyst at the Center for Southeast Asian Studies, Jindal School of International Affairs, O.P. Jindal Global University. He is also the Co-Founder of UPeksha Eduservices and the Director of the UPeksha Mentorship Programme which focuses on enhancing law students' legal research, writing, editing, public speaking skills, and professional development.

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Southeast Asia

Transforming Social Protection Delivery in the Philippines through PhilSys

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Social protection helps the poor and vulnerable in a country, especially in times of crises and shocks that may threaten the well-being of families. When COVID-19 hit and quarantines began, the Philippines needed a massive expansion of social protection coverage to mitigate the impacts of the pandemic. Countries that already had good and inclusive digital infrastructure (including internet connectivity, digital identification, digital payments and integrated data ecosystems) were better equipped to quickly adapt their social protection programs to meet urgent needs. They also fared better in maintaining continuity of services when in-person interactions could be moved online.

For the Philippines, it presented a challenge, and strain was felt in the delivery of social assistance under the Bayanihan acts.

Fortunately, the country is moving to address digital infrastructure gaps, including through the development of the Philippine Identification System (PhilSys). PhilSys is one of the most complex – but also game-changing – projects undertaken in the country.

The Philippines is one of only 23 countries without a national ID system. As a result, Filipinos need to present multiple IDs (and often specific IDs that many do not have) when transacting, including with government, creating barriers to services for the most vulnerable among the population. Information across government databases is often inconsistent. These undermine the Philippines’ transition to a digital economy, society and government. The PhilSys will help address this by providing all Filipinos with a unique and verifiable digital ID (and not just a card), while also adopting innovative and practical data protection and privacy-by-design measures.

The new partnership agreement between the Philippine Statistics Authority (PSA) and the Department of Social Welfare and Development (DSWD) for DSWD’s adoption of the PhilSys is a milestone for the Philippines’ social protection and digital transformation journeys. DSWD will be the first agency to utilize the secure biometric and SMS-based identity authentication offered by the PhilSys to uniquely identify and verify its beneficiaries. Pilots with the Pantawid Pamilyang Pilipino Program (4Ps) and Assistance to Individuals in Crisis Situations (AICS) program will begin within the next few months, before PhilSys is used by all DSWD programs.

Adopting PhilSys will enable DSWD to further accelerate its digital transformation. By automating verification and business processes for its programs and services, DSWD will be able to improve the impact while reducing the costs of social protection programs. PhilSys will assist with identifying and removing ghost, duplicate and deceased beneficiaries to address leakages, fraud and corruption, and thus boost transparency and public trust. The unified beneficiary database that DSWD is developing with the help of PhilSys will contain up-to-date and consistent beneficiary information across all programs.

The World Bank is supporting these DSWD initiatives through the Beneficiary FIRST (standing for Fast, Innovative and Responsive Service Transformation) social protection project.

Importantly, these changes will translate to benefits for Filipinos.

Those who interact with the DSWD will face less paperwork, queues, hassle, costs and time. With their PhilSys ID, they will also have better access to a bank or e-money account where they can potentially receive payments directly in the future, promoting financial inclusion. Indeed, more than 5 million low-income Filipinos have already opened bank accounts during PhilSys registration. And the resources that DSWD saves can be redirected to addressing the needs of beneficiaries who live in remote areas without easy access to internet and social protection programs.

Beyond the advantages for social protection, the digital transformation PhilSys will catalyze in the public and private sectors can be fundamental to the Philippines’ pivot to reviving the economy and getting poverty eradication back on track. Success in utilizing PhilSys for social protection will have a significant demonstration effect in accelerating digital transformation by other government agencies as well as the private sector.

But digital transformation is not easy. It is not about simply digitizing things. It is about re-imagining how things can be done for the better, with technology as an enabler. Digitizing bad systems or processes just leads to bad systems or processes digitalized. Digital transformation therefore depends on and can only be as fast as process re-engineering and institutional and bureaucratic changes to overcome inertia.

Digital transformation must also be inclusive to avoid exacerbating digital divides or creating new ones.

The effort will be worth it. And the World Bank is firmly committed to scale up our support to the Philippines’ digital transformation agenda. A digital Philippines will not only be more resilient to future shocks – whether they are natural disasters or pandemics – but also be poised to take advantage of the opportunities brought by COVID-19 (shift of activities online) and those that lie ahead in the post COVID-19 world.
 first published in The Philippine Star, via World Bank

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Southeast Asia

Bringing “the people” back in: Forest Resources Conservation with Dr. Apichart Pattaratuma

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With a lifetime dedicated to forest conservation, Dr. Apichart Pattaratuma reflected back on his career and what forest management means to Thailand. In the year 1978, he received the prestigious United Nations and Ananda Mahidol Foundation Scholarship to attain higher education at the College of Forest Resources, University of Washington, Seattle, USA. After graduating in the year 1985, he returned to Thailand with a commitment to teach and research at the Department of Forest Management, Faculty of Forestry, Kasetsart University until his retirement with full professor position. The excerpts below encapsulated a conversation between Dr. Pattaratuma and Dr. Rattana Lao on forest conservation.

Beyond the classroom: An anthropological perspective

I dedicated my life to study the anthropological aspect of forest management to His Majesty King Bhumibol Aduyadej of Thailand. I studied cultural dimensions of forest management in many areas of Thailand. I began with Huay Hin Dam with Karen hill tribe (Pra-ka-ker -yor) Suphanburi Province. I tried to review the international literature on land use and combine it with in-depth interviews with the hill tribes to understand the cultural dimensions of their livelihoods. I observed how they built their houses and how their managed their forest. There are three characteristics of the Karen tribe. Firstly, they lived on small plots of lands and their houses are very small. Secondly, they conserve their forest land with water resources. Thirdly, they refrain from using pesticides. Culturally, there is a clear division of labor amongst men and women. While men will clear the lands, women will cultivate agricultural goods such as papaya, guava and banana. There is limited drugs use.

It’s liberating to do research beyond the classrooms. To observe real live, real changes. I learnt more than I set out to do and they are all interrelated to a bigger picture.

Intersectionality between culture, migration and forest management

Karen hill tribes migrate in a cluster. There are more than 3 families migrating together to the new fertile forest land. They will migrate together when land is exhausted. This is most evident in the borderland between Thailand and Myanmar. Back then they did not have official documentation but slowly they do. There has been an influx of hill tribes from Myanmar to Thailand due to political conflicts from Myanmar. From my observation, they are very conscious about forest conservation and resources management. They said: “no forest, no water”. They are compelled to protect the forest from pesticides in order to keep the water clean and their health well. They are very logical. Although they grow rice, it’s very subsistent and only for household consumption. They don’t grow rice for commercial purpose. This is the land use for Karen hill tribe.

I also studied in Kampeangpetch, Nan, Chiang Rai, Phrae and Lumphun. Each place is diverse and the situation is really different. Some local tribes are preserving of the forests, others are more detrimental. We need an in-depth study to understand the cultural dimension of land use for each tribe.

The heart of forest management

People. It’s the people. People must particulate in the forest management. Otherwise, it is very difficult. When we go into each location, we must approach people and bring them into the conversation. I have tried to do all my life. Civil servants must approach people, not other way around. People are looking up to our action. They look into our sincerity and commitment. If they see that we are committed to study about their livelihood, they will share the right information and they will help.

Indonesia is a good example of successful forest management. The state get people involved. In every kilometer, there are four actors involved in protecting the forest: soldiers, policemen, villager and forester. They help each other protecting the wildlife and forest resources.

Can legal change help the people?

Legal relaxation can help lessen the pressure between man and forest. Before the legal requirement was very strict. Any kind of forest intrusion would be caught including small hunters gatherers. I think that is too strict. That put people against the law. People should be able to go into the forest and pick up some mushroom and bamboo and some wild products to lessen their poverty and hunger.

As long as people are still hungry, it’s very hard to manage the forest. There must be a way to balance the two: people livelihood and forest management.

Capitalists invasion

Much of the legal attention is paid to small farmers use of the forests. However, the real issue is big corporations invade the forest. This is very significant. Deforestation happens mostly from large scale corporation rather than small scale farmers. There are many loopholes in the system that lead to systemic corruption and mismanagement of land use. Many wealthy houses are built on large scale timber to exemplify wealth and status. It saddens me.

Would the next generation get to see large tree in the forest?

Less likely.

What can we do to protect the forest?

There are many organizations that responsible for the forest protection such as Royal Forest Department, Department of National Parks, Wildlife and Plant Conservation and Department of Marine and Coastal Resources. But the manpower are not sufficient to cover the large area of forest in Thailand. There are not enough permanent manpower to go on the ground and protect forest resources, while the intruders to National Parks are equipped with more advanced weaponry.

To protect the forest, the state must be committed and the people must participate in the process.

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Southeast Asia

Possibilities for a Multilateral Initiative between ASEAN-Bangladesh-India-Japan in the Indo-Pacific

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In the Indo-Pacific context, there are multiple partners all aiming for economic fulfillment along with maritime security and safety. Countries ranging from the Indian Ocean to the South China Sea seem to be more worried about the freedom of navigation and overflight as Chinese aggressiveness is rampant and expansionist is a scary idea. The region from India to Bangladesh has a huge potential of interconnectedness and if connected to the Southeast Asian countries, it would also help in India’s Act East Policy and India’s neighbourhood first policy and further help out in strengthening relations to the far East as in Japan. All these countries combined can create an interconnected chain of mutual and common interests with balanced ideas of economic, military, social, political and people to people exchanges which would in turn help develop a multilateral.

Who can lead this Multilateral Initiative and Why?

Japan can be the prime crusader for this multilateral as it has excellent relations with all the parties and is the pioneer of the free and open Indo-Pacific. Japan has excellent diplomatic, economic and infrastructural relations with all the possible partners as it provides ODA loans, aid and assistance. Japan being the pioneer of Free and Open Indo-Pacific can be guiding force for this multilateral in the maritime domain which would help create a new regional grouping consisting of South Asia and Southeast Asia primarily based on maritime. Japan is the only developed country among all the other players and with its expertise, it can surely guide, help, support and take along all the countries. Japan most importantly is a non-aggressive nation and believes in mutual respect unlike China. Japan has no dept trap issue unlike China. Japan is known for quality in infrastructural development and with their expertise in science, technology and innovation can well lead these countries. Japan’s reputation of honesty, no corruption and extreme detailed paper work is commendable.

What are the benefits from this Multilateral Initiative?

This multilateral would help connect the Indian Ocean (India) to Bay of Bengal (Bangladesh) to the South China Sea (ASEAN) and the East China Sea (Japan)- would help in the creation of water interconnected network from South Asia to Southeast Asia. This could be the first regional maritime grouping covering South Asia to Southeast Asia. This maritime grouping can create a network of ports which could also become an economic hub and intersecting points of investment and infrastructural development (already Japan is investing in a big way in all these countries). India’s Northeast would get a greater economic, infrastructural and people-to-people exchange as it would connect India to Bangladesh and Myanmar. Mekong Ganga Economic Corridor already exists and could pave the way for Bangladesh and Kolkata greater port exchange which could be developed as nodal points in Bay of Bengal and would help in easy and cheaper freight. These countries can also aim for the strengthening of defence and security relations in the domain of maritime and can also aim for a logistics support agreement and a network from Indian Ocean to Bay of Bengal to South China Sea to East China Sea and would help tackle Chinese aggressiveness and China has been mapping the waters in all these waters and so, to protect one’s territorial sovereignty and integrity, defence relations must be build.

An ecosystem based on Digitalization, Science, technology and Innovation can be formed which would help create a united cyber security law and all this could ultimately lead to the 4th Industrial Revolution. South Asia and Southeast Asia would be lucrative markets and labour distribution and generation of employment can be done through the ports, logistics network, economic and trade exchanges and interactions. This multilateral would form a resilient supply chain in the region of South Asia and Southeast Asia in the domain of Indo-Pacific. Marine economy can be a major factor of this multilateral initiative as it would be a major success in the maritime domain. This multilateral can also work on vaccine diplomacy and work on future health hazards mechanisms.

Why Bangladesh must think of adopting the Indo-Pacific Strategy?

Bangladesh must adopt the Indo-Pacific strategy and create its own objects and call it the SAMODHRO NITI. Bangladesh has the capability of being an excellent maritime power and it is a major leader in the Bay of Bengal and to be an effective part of this multilateral. The Bay of Bengal Industrial Growth Belt (BIG-B) would be a key binder. Bangladesh must realise that China by building dams on the Brahmaputra River would actually create issues for Bangladesh’s fishery catchment areas as it would get inundated with salt water and to stop that Bangladesh must work to strengthen its position to tackle China. Also, China could also create water issues for Bangladesh and Bangladesh must look at ways to safe guard its water resources. Thereby, Bangladesh must work towards countries who face similar issues with China. The Indo-Pacific Economic Corridor is an excellent example of cooperation but this Multilateral if formed can be a stronger initiative and Bangladesh benefits from it as being a hub of textile, leather and pharmaceuticals and this Multilateral has all the efficiency of becoming an economic hub which would benefit Bangladesh too. If Bangladesh adopts an Indo-Pacific Policy, then its market in Japan, the US and Europe would become stronger due to shared interests and can also sign a Free Trade Agreement with EU like Vietnam did.

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