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CIJ criticises government agency's interrogation of journalists

(CIJ/IFEX) - 1 July 2010 - The Centre for Independent Journalism (CIJ) views with grave concern the rounds of questioning that the Securities Commission (SC) has been conducting on three journalists since last week related to possible corporate misgovernance.

BK Sidhu, from "The Star" daily, Azlan Abu Bakar, from the business section of the "New Straits Times" daily, and Dalila Abu Bakar, from the business daily "The Malaysian Reserve", have been interrogated by the SC as part of the latter's investigations into volatile goings-on in the Kenmark furniture company. CIJ understands that more journalists may be called in.

While the SC may justify its actions as being within the boundaries of the law, CIJ's concerns are these:

One: The powers given to the Investigating Officer (IO) and the SC under Section 134 of the Securities Commission Act 1993 (SCA) are very broad and open to abuse. In addition, these provisions go against universal human rights principles.

- Under Section 134(2), a person brought in for questioning by the SC is legally bound to answer all questions. She cannot refuse to answer any question even on the grounds that it tends to incriminate her.

- Under Section 134(3), if the person brought in for questioning does not agree with the written statement, the IO can record the refusal and the reason for the refusal. While this is not problematic, under Section 134(4), any statement made and recorded under this Section shall be admissible as evidence in any proceedings in any court. This appears to render the refusal irrelevant.

- Under Section 134(5), if a person refuses to answer any questions, she shall be guilty of an offence and, if convicted, be punished with a fine of up to one million ringgit (approx. US$300,000) or up to five years' imprisonment, or both.

Two: Of particular concern to CIJ is the impact of the powers under section 134 on the role and responsibility of the media and journalists. The SCA should differentiate a journalist from an ordinary informant.

- Journalists gather information from their sources to report on matters of public interest. Some of the information may be background information which is not published. Some information may have been given in confidence owing to concern for the safety of the source. A journalist cannot be forced to reveal any information that may reveal her source. Only for the most compelling of reasons relating to an immediate and demonstrable direct threat to public safety can a journalist be compelled to provide information or reveal her sources, i.e. when the benefit of such disclosure is greater than the harm to media freedom.

- If journalists cannot protect their sources, it will be difficult to find people willing to speak to them. The protection of sources is a cardinal rule of journalism with good reason. If this trust is violated by journalists, the journalists would find it difficult to pursue stories of public interest.

Bearing in mind all the above concerns, these are some of the questions that need to be answered:

- Were the journalists informed that they could bring in legal counsel when they were requested to go to the SC office, however "friendly" the request may have been?

- Could the information sought by the SC be sourced through other means that will not infringe on media freedoms and responsibilities?

The manner in which the investigation was carried out showed that the SC did not recognise the responsibilities and duties of journalists - to provide information to the public on matters of public interest and to honour confidentiality agreements with sources. It is in the SC's interests to ensure that journalists can continue to write and highlight matters on corporate governance and responsibility. This incident shows yet another legal impediment to media freedom, underscoring the need for journalist protection under the law.

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