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The Securities Commission’s powers

“…if this sort of interrogation becomes a trend, the SC or other authorities might send the wrong signals as far as press freedom is concerned.”

The Malaysian Reserve associate editor Habhajan Singh, among other editors, responding to the manner in which the Securities Commission (SC) questioned The Star business journalist BK Sidhu for her reporting of trading irregularities by Kenmark Industrial Co (M) Sdn Bhd.

Securities Commission logo (source: www.sc.com.my)

SC officers questioned journalist Sidhu for eight hours, from about 12.15pm to about 8pm on 22 June 2010. While editors said they understood the SC’s right to question journalists as part of their investigations, they noted that journalists should be treated as witnesses, and not suspects. The SC also has to respect the journalists’ right to protect their sources, editors added. (Source: Journalists must keep ethics intact and SC must respect that, say editors, The Malay Mail, 30 June 2010)

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

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

“The manner in which the investigation was carried out showed that the SC did not recognise the responsibility and duty of journalists — to provide information to the public on matters of public interest and to honour confidentiality agreements with sources.”

Centre for Independent Journalism (CIJ) Malaysia executive officer Masjaliza Hamzah, highlighting the SC’s extensive legal powers which could affect the duty of the press to report on matters of public interest. The SCA legally binds a person being questioned to answer all questions. Refusal can be an offence punishable by a maximum fine of RM1 million or imprisonment, or both. Conversely, even the Penal Code allows for a person not to answer a question if by answering, it would incriminate him or her. CIJ notes that such SCA provisions impede journalists from gathering pertinent information as they would be unable to protect their sources. (Source: SC interrogation shows need for journalist protection, Centre for Independent Journalism, 29 June 2010)

“These notices can only be issued on the excuse of a criminal offence. Unless the SC has characterised the case as criminal, I have no idea what they want from me. …I came for the interview only as an observer, nothing more.”

Lawyer Tharminder Singh, who accompanied journalist Sidhu to the SC on 22 June, responding to being served a notice to appear before the SC. Tharminder was not allowed to interject or advise Sidhu during the SC’s questioning of her.

He refused to give his statement separately to the SC when asked. He said the SC’s notice on him was “odd” since he was only present as an observer. The Star obtained an interim stay order from the High Court to prevent the SC from questioning Tharminder on the grounds that the SC’s notice would jeopardise solicitor-client privilege. The paper later withdrew its leave application for a judicial review against the SC’s notice. (Source: The Star looks at other options in their ‘fight’ against Securities Commission, The Malay Mail, 30 June 201)

“Such conduct by the Securities Commission constitutes blatant intimidation.  It represents a severe encroachment upon the freedom of the press and the role of journalists…The Securities Commission’s actions are also tantamount to harassment of lawyers… such questioning makes a mockery of the fundamental principle of solicitor-client confidentiality by which lawyers are bound.”

Malaysian Bar vice-president Lim Chee Wee, in a press statement, expressing concern over the SC’s conduct. (Source: Securities Commission’s conduct of investigations constitutes intimidation of journalists and lawyers, The Malaysian Bar website, 6 July 2010)

“The procedures in the law are very clear, very certain and our investigation officers are well-trained and subjected to a code of conduct … We, the SC, have a statutory role to protect investors. We have to ensure that our market is fair, orderly and transparent to make sure that the level of confidence of investors in the market is high.”

SC chairperson Tan Sri Zarinah Anwar’s response to allegations that SC was too harsh on journalists. SC has called a total of 19 witnesses to investigate the Kenmark case. Four of the witnesses are journalists who reported on the company. Zarinah said the SC had questioned reporters in the past and did not receive any complaints until now. (Source: No pressure on journos over Kenmark scandal: SC, Malaysiakini, 1 July 2010)

However, the SCA’s restrictive powers on the media’s role was not addressed in her press conference and remains a side issue to the SC officers’ alleged bad treatment of The Star journalist.

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