Attorney-General has lost public confidence that he is a fair and impartial custodian of the law with his misuse of his discretionary powers, including the selective prosecution against the Opposition and NGOs


Speech (II) - Computer Crimes Bill 1997
by Lim Kit Siang

(Dewan Rakyat, Tuesday):Section 12 of the Bill provides that a prosecution under the Computer Crimes Act shall not be instituted except with the consent of the Public Prosecutor in writing.

It is no exaggeration to say that the Attorney-General, Datuk Mohtar Abdullah, who is the Public Prosecutor, has completely lost public confidence that he would be a fair, impartial and judicial custodian of the law in the series of highly controversial decisions he had made in pursuance of the exercise of his discretionary powers provided under Article 145(3) of the Federal Constitution to "institute, conduct or discontinue any proceedings for an offence".

This is because these decisions show a pattern of bias and even malice in the exercise of his discretionary powers to "institute, conduct or discontinue any proceedings for an offence".

The case of DAP MP for Kota Melaka, Lim Guan Eng, who faces disqualification after being fined RM10,000 for the offence under the Printing Presses and Publicatons Act for publishing "false news" and fined RM5,000 for the offence of sedition by the Malacca High Court, is the latest and a classic example.

I do not propose to touch on the judgement finding Guan Eng guilty of offences under the Printing Presses and Publications Act and the Sedition Act, although the imposition of the maximum RM5,000 fine for the offence of sedition and the RM10,000 fine for the offence of "false news" is very, very harsh under the circumstances.

What I question is the Attorney-Generalís bias and malice in the pattern of selective prosecution and victimisation of critics of the government, whether from the DAP like Lim Guan Eng or from NGOs like Irene Fernandez of Tenaganita.

This raises the question whether the Computer Crimes Bill, when it becomes law, with Section 8 criminalising the majority of computer users in the country and having the most severe penalties in the www (whole wide world) for the same offences of computer crimes,would become a new instrument of the Attorney-General to persecute and victimise Opposition leaders and critics of the government in his pattern of selective prosecutions.

Lim Guan Eng is the first person to be charged, convicted and sentenced for an offence under Section 8A of the Printing Presses and Publications Act for publishing "false news" to the extent of disqualifying him of his fundamental citizenship right to be a Member of Parliament and even to exercise his constitutional right to cast his vote for five years.

During the April 1995 general elections, the Prime Minister, Datuk Seri Dr. Mahathir Mohamad, had publicly, through both electronic and printed media, published the "false news" that I had challenged the Police to arrest me during the start of the DAP general elections campaign in Penang - with top police and government officers echoing the Prime Ministerís threat to arrest me during the general elections for provoking the police. Three Penang DAP leaders lodged police reports against Mahathir for publishing "false news" under the Printing Presses and Publications Act for repeatedly and falsely claiming that I had challenged the police to arrest me, but the Attorney-General had not deigned it important to demonstrate that his office does not operate double standards by prosecuting the Prime Minister for the offence of publishing "false news" under the Printing Presses and Publications Act.

It would appear that the offence of "false news" under the Printing Presses and Publications Act is specially meant to be used selectively against the Opposition and NGOs, as I have no doubt that if the Attorney-General had avoided double standards and applied the law equally to everyone, whether in government or Opposition, there would not be a single Minister in the Cabinet - as every one in the Cabinet, from the Prime Minister downwards, could be charged, convicted and sentenced for the offence of "false news" and disqualified not only as Member of Parliament, but as Cabinet Ministers as well as Prime Minister, going by the sentence that had been imposed on Lim Guan Eng for the offence yesterday!

Do we have one law for the Barisan Nasional leaders and another law for others in Malaysia?

There is a long catalogue of such bias and gross abuse of power by the Attorney-General in the exercise of his discretion to "institute, continue or discontinue any proceedings for any offence".

The Chief Minister of Sabah, Yong Teck Lee is one example. He was charged under the Police Act for the offence of unlawful assembly during nomination day in the 1990 general elections, which would entail his automatic disqualification to hold elective office, as the Police Act provides that "any person guilty of an offence under this section shall be liable on conviction to a fine of not less than two thousand ringgit and not more than ten thousand ringgit and imprisonment for a term not exceeding one year".

In 1990, Yong Teck Lee was in the PBS - an Opposition leader in Sabah. However, after defecting to the Barisan Nasional, and he was next-in-line to become Sabah Chief Minister under the system of rotation of the office of Sabah Chief Minister among the three racial groups, the Attorney-General withdrew the charge under the Police Act and substituted a charge under the Penal Code which would not entail mandatory disqualification as State Assemblyman on conviction - although the case had proceeded at some length after numerous adjournments.

There can be no question that the withdrawal of the charge against Yong Teck Lee under the Police Act and the substituion of a charge under the Penal Code was not prompted by any new facts adduced in the trial, but solely to avoid disqualifying Yong Teck Lee as an Assemblyman and forfeiting his chance to become Sabah Chief Minister.

These double standards in the exercise of the discretionary powers of the Attorney-General could also be seen in the case of Jeffrey Kitingan, who was charged with corruption when he was in the Opposition, but the charges were withdrawn when he defected to the Barisan Nasional. Are the "false news" offence and the offence of unlawful assembly under Police Act involving automatic disqualificaton of MP/Assemblymen on conviction to be used solely against Opposition and government critics?

Another example is the charging of UMNO Youth leaders who brought shame to Malaysiaís international reputation as a civil society by their lawless and gangsterish break-up of the Second Asia-Pacific Conference on East Timor (APCET) in Kuala Lumpur in November last year.

The Youth leaders were given the unheard-of privilege of a being charged under the Police Act - which would entail a mandatory minimum RM2,000 fine on conviction and automatic disqualification of a UMNO Assemblyman from Perak and the end of the political ambitions of all the other UMNO Youth leaders - with an alternative charge under the Penal Code without such a mandatory sentence involving automatic disqualification from holding elective office.

In the event, all the UMNO Youth leaders pounced on the alternative charge under the Penal Code and pleaded guilty, getting away with RM1,500 fine.

Many questions are raised here. Firstly, whether demonstrators breaking up a conference organised by the ruling parties, and resulting in a similar public fracas as the break-up of the APCET meeting, would have got off so lightly.

Secondly, would all political leaders and members who are to be charged in court for unlawful assembly under the Police Act in future be treated equally and be given an alternative charge of the same nature under the Penal Code for them to "choose between the charges", as stated by the magistrate, Juliana Mohamed in the trial of the UMNO Youth leaders?

Thirdly, the Deputy Home Minister, Datuk Megat Junid had said in Teluk Intan on 16th November that six members of the so-called Malaysian Peopleís Action Front who had rioted and broken up the APCET II Conference on 10th November 1996 would be charged in court as the police had completed their investigations. Why had the number dwindled from six to four as to those to be charged in court?

Here, we must ask whether the offence of unlawful assembly under Section 27A of the Police Act, involving mandatory minimum of RM2,000 fine on conviction and automatic disqualification as MP or Assemblymen, is another law like the "false news" offence under the Printing Presses and Publications Act to be used solely against the Opposition and government critics?

Rahim Tamby Cik is of course the most notorious of the examples of the Attorney-Generalís bias and gross abuse of powers in the exercise of his discretion - where the Attorney-General could decide to prosecute 14 persons for the offence of statutory rape on the uncorroborated evidence of the underaged girl concerned while Rahim Tamby Cik was given immunity although the underaged girl had given a similar statement to the police, and which was subsequently stated on oath in court, that Rahim Tamby Cik also had sexual relations with her! Why Lim Guan Engís case is regarded nationally and internationally as one of political persecution

It is because of this context of the bias and misuse of the Attorney-Generalís prosecutorial discretion that the trial, conviction and sentence of Lim Guan Eng is regarded as most unfair, not only by the Malaysian public, but also by the international community.

The Prime Minister, Datuk Seri Dr. Mahathir Mohamad, when asked by reporters what the Malacca High Court judgement would mean to the opposition following the verdict, had this reaction:

This was a very defensive response and failed to address the nub of the problem as to why Lim Guan Engís case is regarded nationally and internationally as a case of political persecution.

Mahathir implied that Guan Engís criticims which resulted in his being charged in court were politically motivated. He said: "Why is it that others who are not interested in politics do not make such comments? Thatís because they are not politicians"

Mahathir forgets that in the case of the scandal of Rahim Tamby Cik and the 14-year-old girl, even his daughter, Marina Mahathir had written an article in the Star on November 9, 1994 under the heading "Whither justice - Making a mockery of justice" expressing her outrage at the double standards meted out to the girl as compared to Rahim Tamby Cik.

I am not suggesting that Marina Mahathir should be charged in court under the Sedition Act and the Printing Presses and Publications Act, but to let the Prime Minister better understand why the public at large and the international community regard the trial of Lim Guan Eng as political persecution.

If MSC is to succeed, it is not enough to have good cyberlaws, it is even more important to have an IT-literate and IT-fluent population

In introducing the Computer Crimes Bill yesterday, the Minister for Energy, Telecommunications and Posts, Datuk Leo Moggie, said the cyberbills were meant for the Multimedia Super Corridor (MSC), which would be a test-bed for the governmentís information technology agenda to keep the country abreast of the latest in information technologies.

DAP supports the concept of a Multimedia Super Corridor but we want a balanced IT development so as not to create a new division of Malaysians into the "information-rich" and the "information-poor", or in this case, an oasis of information prosperity in the MSC against a national backdrop of comparative information backwardness or even poverty.

However, if the MSC is to succeed, it is not good enough to have good cyberlaws, even more important, Malaysia must have a IT-literate and IT-fluent population.

In this connection, I welcome the statement by the Information Minister, Datuk Mohammad Rahmat who announced that the Information Ministry would be launching a full-scale campaign to promote Information Technology. This is the first positive statement on IT which the Information Minister had made in the past two years, where he seems more interested in becoming the bete noire of Internet in Malaysia, focussing only on the negative aspects of Internet.

Last month, Mohamed Rahmat had to clarify that his Ministry would only "monitor" information and materials channelled to the MSC and denied that he had earlier said that his Ministry would "censor" such materials.

He hoped that his clarification would put to rest all confusion and allay fears from those planning to invest in the MSC and that the Prime Ministerís promise to foreign investors when promoting the MSC project that there would be "a free flow of information" stands.

Mohamad Rahmat has only himself to blame if his statements had created confusion and given rise to misinterpretations, particularly because of his reputation as a Minister more known for his "Internet-phobia" than for his understanding or support of the information technology revolution and the Information Superhighway and his previous strident calls for censorship of the Internet.

Even his clarification last month was not all that enlightening - as he has still to explain the mechanism his Ministry is going to use to "monitor" information and materials channelled to the MSC, as well as explaining whether the Information Ministry would nonetheless carry out a "censorship" of the Internet for the nation as a whole, though excluding the MSC.

The Prime Minister seems to have doubled up as Information Minister as far as popularising MSC and IT is concerned.

As Information Minister, one of Mohamad Rahmatís primary challenges in the past two years should have been to promote the popularisation of the advent of an Information Age and to raise a greater national awareness of how the information society will affect the peopleís lives in the future.

Instead of being the proponent par excellence for an Information Society, the Information Minister seems to find greater comfort in playing the role of the bete noire of Internet and an Information Society.

I hope the Information Minister will get into the mainstream of national efforts to promote IT and the Internet instead of being marginalised as the negative voice about doubts and fears about IT.

Mohamad Rahmat should head a nation-wide campaign to target 300,000 Internet subscribers by the end of 1997

For instance, the Information Ministry should play a leading role to raise IT-literacy and IT-fluency among Malaysians.

Two weeks ago, in answer to my question in Parliament, the Minister for Science, Technology and Environment, Datuk Law Hieng Ding, said that as of 1st March 1997, there were 80,927 Internet subscribers in Malaysia, made up of 55,472 with Jaring and 25,455 with TMnet.

This was a major shortfall from earlier forecast of the growth of Internet subscribers in Malaysia. As recent as April last year, a top government official had estimated that at the then rate of growth of Jaring subscribers, there would be 150,000 Internet subscribers by the end of 1996 and that the total would touch 500,000 by the end of 1997.

However, at the end of 1996, the total number of Internet subscribers did not reach 150,000 as forecast in April last year, but only 65,097, made up of 51,329 with Jaring and 13,768 with TMnet.

The actual total number of Internet subscribers is less than 65,097, as there are Jaring subscribers who also register with TMnet. There had been several reasons for this drastic shortfall in the rate of increase of Internet subscribers, the chief of which was the severe hike in telephone rates.

In my parliamentary question, I had also asked whether the government plans to launch a nation-wide campaign to achieve a higher Internet take-up rate in the country to prepare Malaysians to face the Information Era in the new millennium. In his reply, the Minister said that a major campaign would be launched in May to encourage Malaysians to hook up to the Internet once the installation of the 45 mbps leaseline between Malaysia and America has been finalised.

I propose that the Minister for Information should head a nation-wide drive to popularise Internet and Information Technology to achieve the involving all sectors of the nation to achieve the objective of "IT For All" to convince Malaysians of all ages that computers are nothing to be afraid of and to remove the social, educational and psychological barriers to people who would like to know more about using the information technologies.

This nation-wide drive should have as a second limb the mottor of "One Family, One Computer" so that Malaysians - whether adult or child - could use the latest information technology to develop their potential and enhance their lives and where businesses - large and small - could seize the opportunities offered by the latest technologies.

This nation-wide drive should encourage a higher Internet uptake among Malaysians and set the target of achieving 300,000 Internet subscribers by the end of 1997 - which is still far short of the previous estimate of 500,000 Internet subscribers only 12 months ago.

The MSC marks the nationís bold plan to leapfrog the Second Wave into the Third Wave, but every effort must be made to ensure that in this process, there are no Malaysians who are still left behind in the First Wave.

When the Government said that the MSC would be the test-bed for the latest IT technologies, it is vital that we ensure that the MSC is a test-bed for Malaysians and not just for foreigners.

If MSC is to become an internatonal IT hub, we must focus on what makes the Silicon Valley tick. The Silicon Valleyís great inherent strength to flourish well in the 21st century or perhaps beyond lies in its "awesome creative brainpower, the state-of-the-art research capability and its unrivalled high-tech know-how".

The convergence of computer and communications technologies has made possible the development and rapid growth of the Information Superhighway.

However, all the computers, telephones, scanners, printers, switches, routers, wires, cables, networks and satellites in the world will not create a successful Information Superhighway, if there is no content. What will drive the Information Superhighway is the content moving through it.

Will the cyberlaws we will be passing in the current meeting contribute towards the promotion of "awesome creative brainpower" among Malaysians to producd world- class content so that we can produce an informatized elite who are as computer accomplished, creative and innovative as their counterpart in the most advanced countries or are we stifling such creativity by legislating the most punitive computer crimes laws in the world as well as criminalising the majority of computer users in the country?

In his speech, the Minister referred to the seven flagship applications in the MSC, one of which is telemedicine, and this is why Telemedicine Bill is current beforer the House.

Telemedicine Bill - Can it provide cost-effective medical services within the reach of ordinary Malaysians?

"Telemedicine" refers to the use of electronic communication and information technologies to provide or support clinical care at a distance.

Telemedicine, in one form or another, has been practised for over thirty years. At the simplest level, a consultation over the telephone for a second opinion is telemedicine. Today, however, we think of telemedicine applications that employ advanced image as well as audio capabilities. These technologies can range from high resolution still images (e.g., x-rays) to sophisticated interactive teleconferencing systems.

I have been reading some materials on telemedicine in the United States. It has been described as having the potential to make a difference in the lives of many Americans. For example, telemedicine can improve the delivery of health care in Amercia by bringing a wider range of services such as radiology, mental health services and dermatology to communities and individuals in underserved urban and rural areas. In remote rural areas, where the distance between a patient and a health professional can be hundreds of miles, telemedicine can mean access to health care where little had been available before. In emergency cases, this access can mean the difference between life and death. In particular, in those cases where fast medical response time and specialty care are needed, telemedicine availability could be critical.

I believe a similar case for telemedicine can be made for Malaysia. However, there is a need for a nation-wide debate as to whether telemedicine is a viable health care delivery option for Malaysia at this stage of our development and whether it can provide cost-effective medical services within the reach of ordinary Malaysians.

Apart from the various technical, legal and medical issues of telemedicine including those of patient safety, quality of services and malpractice liability, which have to be addressed by all countries practising telemedicine, Malaysia has our own specific problems which must be dealt with first.

For instance, there is the question of trade-off between potential health benefits in terms of access, efficiency, speed of information transfer and the cost of infrastructure.

Simple "store and forward" equipment to transmit recorded images for later review by a specialist might require only standard telephone lines at normal transmission rates. The transmission of chest x-rays using digitized uncompressed images (2 new films, plus 2 old films for comparison) requires approximately 7 hours over a 14.4 kbps modem, 3.5 hours over a 28.8 kbps modem and only 40 minutes over a more costly ISDN line, but only 4 minutes over a T1 (at 1.5 mbps) line. Of course, Asynchronous Transfer Mode (ATM) using 155 mbps transmissions can provide very high resolution imaging together with rapid transfer of information suitable for applications that need very accurate and detailed imaging.

However, there is a major difference between the US and Malaysia in determining whether telemedicine is a viable health care delivery option, as in the United States, even in the most remotest rural areas, there are good telecommunications infrastructure where telephone services are quite ubiquitous. This is however not the case with Malaysia. In fact, there are 1,273 schools in the country without electricity supply or with only limited power supply. Furthermore, there is no steady quality electricity supply by Tenaga Nasional - which registers over 100,000 power interruptions in a good year!

Furthermore, the biggest healthcare problem in Malaysia is still on very elementary questions of basic medical and health services, with many hospitals without the minimum of beds, staff, hospitals or infrastructure - including telecommunications infrastructure which excludes the possibility of telemedicine as a viable option.

In these circumstances, there should be a nation-wide debate whether Malaysia should take to telemedicine in a big way or whether the country should be focussing on ensuring that all Malaysians, including those in the remotest rural areas, can have access to the most basic health and medical needs.

(29/4/97)


*Lim Kit Siang - Malaysian Parliamentary Opposition Leader, Democratic Action Party Secretary-General & Member of Parliament for Tanjong