MALAYSIA : MEDIA LAW

Credits to the contributors from PR MassComm,
UiTM Shah Alam 2009 :
M.Abdullah Azam, Nur Hanis Che' Ismal & M.Iqram Marzuki

Malaysia Media System

According to Mohd. Safar Hashim in his book, Akhbar dan Kuasa; The British had a great influence on the development of print and broadcasting in Malaysia, as well as the laws related to its press. British interests introduced the press to Malaysia 200 years ago, and created a press system based on laws and regulations. The first newspaper, the Government Gazette, was published on March 1, 1806. Following the practice in the three East India Company presidencies in India, the editor had to submit their content to be check and approved by the officer before it is legally allowed to publish the circulation.

Media Law

Media law covers an area of law which involves media, and stretches over various legal fields. Media law is a legal field that refers to the following:

• Telecommunications
• Information Technology
• Defamation
• Broadcasting
• Copyright
• Advertising
• Confidentiality
• Contempt
• Privacy
• Censorship
• Firm law
• Freedom of information
• Internet & on-line services

Media Freedom

Media Freedom does exist in Malaysia, but in different form. Dr. Mahathir proclaims that freedom is necessary in any areas but it should come along with the limitation. This is in line with the Malaysia labeled as the govern-democratic country. Democracy means allowing the people to have the right and freedom to participate in action. But the rights and freedom should not be taken as free think rights. Instead, it should be balance between rights; freedom and responsibility are equal to an adequate democracy. The dilemma faced by our country is when they give too much press freedom will create unhealthy society but too much restriction will be against the principal of democratic country. Even though the government gives limited freedom to press, they still allowed them to give advice and critic to improve the government service for the public.

Introduction

According Mohd. Safar Hashim in his book, Mahathir dan Akhbar, in Print machine & Publishing Act 1984, there are two important document need to be owned by the printing and newspaper publisher in Malaysia, the owning license and keeping the printing machine, and the second is the permit to print and publish newspaper and magazine. This license requirement started ever since Prince of Wales Gazette (Government Gazette) was published by A.B.Bone in Penang (1806). The governor of Prince of Wales Island, Philip Dundas approved with some condition It stated that Mr.Bone is allowed to establish a printing and publishing if he allied with the government (gatekeeping and controlling), and under close supervision of the State Secretary which has the right to add or remove any information. This rooted when the press law are enforced at the three presidential area, under the authority of East India Company (Bengal, Madras,Bombay) in India.

Ruling Class

The term ruling class refers to the social class of a given society that decides upon and sets that society's political policy. According to Livingston, (1939) there are two classes of people appear, a class that rules and a class that is ruled. The first class always the less numerous, performs all political functions, monopolized power and enjoys the advantage that power brings whereas the second, the more numerous class is directed and controlled by the first in a manner that now more or less legal, now more or less arbitrary and violent and supplies the first.

The ruling class is a particular sector of the upper class that adheres to quite specific circumstances whereby it has both the most material wealth and the most widespread influence over all the other classes, and it chooses to actively exercise that power to shape the direction of a locality, a country, and the world. In Marxist political economics, the ruling class refers to that segment or class of society that has the most economic and political power. Under capitalism, the ruling class (the capitalists or bourgeoisie) consists of those who own and control the means of production and thus are able to dominate and exploit the working class, getting them to labor enough to produce surplus-value, the basis for profits, interest, and rent (property income). This property income can be used to accumulate more power, to extend class domination further.

Classical example of ruling power can be seen during the reign of the previous Malaysian Prime Minister, Tun Dr. Mahathir Mohamed. Whereby, the power was increasingly concentrated in the hand of executives bodies, ahead of the other estates. (legislative and judiciary). He succeeded the plan due to his knowledge and experience, which allow him to undisputedly govern the country for more than 23 years.

Narrowing the scope to the managing the youth to support the government aspiration, Tun Dr. Mahathir had imposed the Act called AUKU - ‘Akta Universiti dan Kolej Universiti’ (University and College University Act). According to Azizan Mat (1998) in his book ‘Akta Universiti dan Kolej Universiti: satu analisis terhadap persepsi dan pendapat masyarakat umum di Malaysia’.The law was introduced and geared by the great former prime minister Tun Mahathir Mohamed during his time as the Education Minister in the seventies.This is the long term planning of Dr. Mahathir to control the mentality of new generation. He worried that those graduates that are exposed to bad influence tend to go against government in the future. This act was then amended several times to suit the recent scenario. The motive for this act basically is to forbid university students from being radically involved in politics, with the concern that they can focus more on their studies.

But this AUKU does not stop us from being exposed to the politics. But with a great freedom comes a great limitation. If according to our federal constitution, article 10, gives us the power to the freedom of speech and expression, and at the same time provided by the provision in the federal constitution there are limitation to it. The law acts as a control mechanism to stop people from abusing their freedom and also protect other people. It forbids a person from causing havoc, so that other people who are not involved will not be hurt. This type of hegemony is using statutory prohibition to form the immunity of the ruling class (government). Around the year 2008, the minister in the Ministry Division, Datuk Seri Mohd. Nazri Aziz said that the AUKU is not anymore applicable among the higher institutions, thus appealing to the MT-‘Majlis Tertinggi’ (Supreme Council) to remove it.

Status Quo

Status quo is the notions of culture industry, of the productions and manipulations of needs and desire, of consuming subjects that are unable to define their needs, subjected to the powers that manipulate the public into acceptance of a static status quo. (by Gramsci in Holub R.,1992).

In a word, status quo tells about the owning of power in certain class (institution such as government, media, family, educational system) and the effort to maintain it. Concerning about status quo issue, it can be considered broad and differ, as the usage is varied depending on the situation context.

Hegemony

Hegemony is a term founded by Sir Antonio Gramsci (1971). It defines the power of dominant class to indirectly control the subordinates in terms of culture, politic and economy in their nation. Foundationally, it evolves around the alliance in classes, power bloc and unequal treatment (e.g: propaganda bias). Psychologically, the hegemony is a set of culture that help the upper ruling class to unite the subordinate to support and participate in their agenda. They properly inject the mentality by persuasion and not forcing. In other word, hegemony has the approach to turn class ideology into common sense. Thus, it does not seem like dictator but more to following the law and order. This is essential as the daily activities are organized according to hegemony to maintain stability and sovereignty. This will lead to another term called homeostasis, a process to maintain the normal situation. It tells about how a person’s played his role and represents his need the most.

Internal Security Act (ISA)

Case:
On October 1981 two journalists, Datuk Aziz Ahmad and Halim Mahmood were arrested under Internal Security Act (ISA). The second case happens in October 1987 when three local newspapers (The Star, Watan and Sin Chew Jit Poh) publication is being suspended under Internal Security Act (ISA) accusation. On 27 September 1986 the foreign reporter is affected, whereby the Wall Street Journal visa had been cancel and suspend by Malaysian government.

Implication:
the government had taken those precautious steps towards the accused due to some considerations. The idea of those deviants might have some sentiment that threats the country’s stability in terms of racial issue, social inequality or betraying the country. Thus, the government had foreseen the most appropriate action to hinder those efforts. The rapid plan will stop the issue from spreading to the constituencies and influencing their mentality to misjudge the government action. In addition, they will avoid more severe mislead controversy and tarnishing the country reputation in the global view.

Action Taken:
it is undeniable that the ruling class (government) needs to maintain their power and status quo. The existence of these kinds of threats will weaken their immunity, and so they apply the law as their effort to control the matters. Such law as Internal Security Act (ISA) is one ultimate power that is capable to isolate the perpetrator from inflicting the conspiracy to the public. This ISA is a solution which comes under the plan of repressive apparatus state. Whereby, it is the idea of the ruling class (government) to control the country away from trouble. This law enforcement also indirectly informs the people to respect the constitutional and government authorities.

Official Secret Act (OSA)

According to the book Akhbar & Kuasa by Mohd Safar Hashim, Official Secret Act or OSA in Malaysia was not the really a genuine one because it was adapted from British in 1911. The British started using OSA since 1889 and the first OSA was passed by the British parliament in the same year. The major objects of OSA were to provide stronger measures against the leakage of official information by civil servants. Another aim was too dealt with espionage or spying; “foreign agent” includes any person who is or has been or is reasonably suspected of being or having been employed by a foreign country or any organization within or without Malaysia either directly or indirectly for the purpose of committing the act.

There are six areas of information that is protected, which are:

1. intelligence
2. defense
3. International relationship
4. crime and investigatory powers
5. information resulting from unauthorized disclosure and
6. information entrusted in confidence to other state or international organizations.

The recent person charged under ISA
(RAJA PETRA RAJA KAMARUDDIN, the infamous blogger).

His current post was the Editor, Malaysia Today website blogger, this 49 years old guy had been married and own 5 childrens. He came from the Selangor royal family, as the nephew of the late Sultan Salahuddin Abdul Aziz Shah. He received an early education at Malay College Kuala Kangsar (MCKK) & Victoria Institution. Due to the surrounding exposure, he is said to be a proactive person who are interested in the local political arena and law. At his adult age, RPK is a very supportive member of Parti Keadilan Rakyat (PKR).


The chronology of the case :

11/04/2001 :
RPK was arrested under ISA for alleged plotting to overthrow then Prime Minister, Mahathir Mohamad and then he was released after 52 days.

23/07/2003 :
Muhammad Muhammad Taib, UMNO Information Chief, lodged a police report against Malaysia Today owner, Raja Petra Kamal. The blogger responded by releasing an article that insult the Yang Di Pertuan Agong, degrade Islam and incite hatred and violence between local ethnic groups.

06/05/2008 :
On this date, he was charged upon "Sedition Act 1948" over an article titled "Let’s send the Altantuya murderers to hell" which published in his blog on 25/04/2008, this will carries a maximum fine for RM5,000 or 3 years jail or both upon conviction.

09/05/2008 – but somehow, he was released with the bail of RM5,000

16/07/2009 :
Arrested and charged with criminal defamation linked to allegations in his statutory declaration on 16/06/2008 that implicated Datin Seri Rosmah Mansor and two others were Lt Col Aziz Buyong and wife Norhayati Hassan in the murder of Mongolian woman, Altantuya Shaariibuu and was bail by his wife amount RM2,000 - each charged under section 500 of the Penal Code which carries a maximum 2 years jail or fined or both on conviction.

12/09/2008 :
Finally, he was arrested under section 73(1) of ISA, police detained him on suspected of being involved in "activities which could threaten national security" and been send to Kem Kamunting for imprisonment.

From this case, it is affirmed that the ruling class had the authority to put off any person that try to pull them backwards. The ISA is the last resort to solve the matter once and for all without any hesitation. Moreover, the existence of borderless internet access (blog) had made the country’s security at risk. This is because the fraud had found this modus operand (internet) to be effectively reaching the society. The emergence of alternative media had diffused the hegemony structure in Malaysia towards a more aggressive mode. This had made the government aware of the threats and take prevention plan to counter this issue. Although there is no specific media law to charge the bloggers, but there were still other law (such as MCMC, ISA and OSA) that can affect the offender.

The Printing Presses and Publications Act

Referring to the book Akhbar & Kuasa by Mohd Safar Hashim, the legislation that affects the press the most in Malaysia is the Printing and Publications Act, 1984. This Act provides vast powers to the Home Minister to grant or to withdraw printing licenses. It was amended in 1987, adding further curbs on the freedom of the Press.

Section 22 – the authority of responsible minister towards press and publication, to restrain upon printing, publishing, selling, distributing and subversive document ownership.
Applications for all printing and publishing licenses are made yearly, and the Home Affair Minister has absolute power to suspend or revoke a license or permit, with no obligations to give a reason.

Furthermore, the suspension or revocation may not be challenged in the court. In addition, it gives power to the government to control the import of foreign publication that perceives as prejudicial to nation interest, public order and bilateral relations.
For example, in the year 2000, the series of crackdown on the media took place following Malay support for the opposition in the 1999 General Elections. The Malay magazines Detik, Ekslusif, and Al-Wasilah were in effect banned, through the non renewal of publication permit. Simultaneously, the publication of Harakah (PAS’s party organization) was reduced from eight issues per month to two issues.

Case:
The example of case falls under Printing, Presses and Publication Act was the newspaper Sarawak Tribune covered the news regarding a controversial issue of scrutinizing the Prophet. Originally, the issue started when a Danish Newspaper had come up with a caricature insulting the Prophet Muhammad, portraying him as a coward. This is the respond towards the labeling of Islam as terrorist and war issue.

Implication:
the Sarawak Tribune is well-established local newspaper, with good reputation. The controversial issue that they created can be viewed in a few perspectives. Technically, they are making a good coverage by reproducing the international issue to inform the local Malaysian. This is a great idea to stay ahead from other press regarding newsworthiness. On the other hand, evaluating it from ethical view, the publication of the news had offended the pride of Muslim in Malaysia. In a way, it had goes against the constitutional, whereby it is a must to respect the religion and sensitive issue.

Action Taken:
the government realized that the public already threw bundle of complaints, accusing that the regulatory body overlook in executing their censorship responsibility. As a resolution, the government representative had meet with the Sarawak Tribune editor to get an explanation and ask him to make public apologize. At the end, to satisfy the public, the government had decided to ban the publication of Sarawak Tribune Newspaper by pull back the permit.

Ideological State Apparatuses and Repressive State Apparatuses

The ideological state apparatuses define by Louis Althusser (by Antonio Gramsci in the book Hegemony and Power, R.Holub) is about the main concepts on the issues such as conditions of production, structures of society, the theory of the state, the role of individual, and the definitions and functions of ISA, which include the family, the media, religious organizations and, most importantly, the education system, as well as the received ideas they propagate. In other words in order to reproduce its productive power Althusser proposes a discussion on the relationship of the State and the subjects link between belief and action, for example Islam belief in God which is ALLAH by doing what is stated in the Al-Quran and follow the Prophet Nabi Muhammad. The next thesis posits that ideology does not exist in the form of "ideas" or conscious "representations" in the "minds" of individuals. Rather, ideology consists of the actions and behaviours of bodies governed by their disposition within material apparatuses.

The repressive state apparatus comes after the ideological state apparatuses. At times when individuals and groups pose a threat to the dominant order the state (ruling power) invokes Repressive State Apparatuses. The most compassionate of the RSAs are the systems of law and courts where putatively public contractual language is invoked in order to govern individual and collective behavior. As threats to the dominant order mount, the state turns to increasingly physical and severe measures: incarceration, police force and ultimately military intervention are used in response.

The Chemistry of Ruling Class, Hegemony & Status Quo

All the media law institution revolves around the manipulation of hegemony. It explains how the ruling class uses the law to maintain the existing status quo. In order to ensure that the society to obey them, at the initial stage, they will introduce their ideological state apparatus. This manifesto is the set of agenda that is instilled in the people’s mind through the media channels, all the time. Later on, this will construct the psychological state of the people to believe and put trust on them.

This will result to an accelerate application of the government plan (per se) and receive positive participation from citizen. But somehow, due to the information superhighway (internet), there will be minor group of people that enquire something beyond their rights. And due to the lack of substantial information, they tend to interpret it wrongly (most of the time) and break the law. These deviant wanted their opinion to be accepted, thus making effort to influence the people around them.

The government then will apply the Repressive State Apparatus, (tools to control the people), which in Malaysia are similar to Internal Security Act (ISA) and Official Secret Act (OSA). The act is closely related to media industry, and it has ultimate power granted from the constitution to the Ministry of Home Affairs. It owns an ultimate power to seized anybody that is accused, which have the intention to threaten the sovereignty of the country, without any warrant or court trial.


Book References

• Adam Watson, (2007) Hegemony & History, London: Routledge

• Azizan Mat, Akta Universiti & Kolej Universiti : Satu Analisis Terhadap Persepsi & Pendapat Masyarakat Umum di Malaysia

• Brian Shoup, (2008), Conflict & Cooperation in Multi-Ethnic States : Institutional Incentives, Myths & Counter-Balancing

• Chomsky,(2004), Hegemony or Survival : America's Quest for Global Dominance (first edition) Crows Nest, N.S. : Allen & Unw, 2003

• Edward H. Crane, (1985), Beyond the Status Quo, edited by David Boaz ,Washington: Cato Institute

• John Agnew,(2005), Hegemony : The New Shape of Global Power, Philadelphia: Temple University Press

• K. Umapathy Setty,(1977), Librarianship : Changes or Status Quo, New Delhi: Vikas

• Livingston, (1980), The Ruling Class: Elementi di Scienza Political, edited and revised with an introduction, New York: McGraw-Hill Book

• Mohd. Safar Hashim, (1996), Akhbar dan Kuasa, Utusan Publication and Distributor sdn. bhd.

• Mohd. Safar Hashim, (1996),Mahathir Dan Akhbar, Utusan Publication and Distributor sdn. bhd.

• Mohd. Safar Hashim, (2002), Mengenal Undang-Undang Media & Siber, Utusan Publication and Distributor sdn. bhd.

• Ray Kiely, (2007),The New Political Economy of Development : Globalization, Imperialism, Hegemony

• Renate Holub (1992), Antonio Gramsci : Beyond Marxism & Postmodernism, London : Routledge, 1992

( alamamry.blogspot.com )