Lawyers: Probe against whistleblower Asri Janggut seems excessive, ambiguity of law could spell bigger issue

Hot Burger Malaysia founder Mohd Asri Hamid or Asri Janggut (centre) is seen outside the Bukit Aman police headquarters in Kuala Lumpur August 14, 2020. — Bernama pic
Hot Burger Malaysia founder Mohd Asri Hamid or Asri Janggut (centre) is seen outside the Bukit Aman police headquarters in Kuala Lumpur August 14, 2020. — Bernama pic

KUALA LUMPUR, Aug 15 — The owner of Hot Burger Malaysia, Mohd Asri Hamid, went from being a protection racket whistleblower to being shunned by public and investigated by police after he made several controversial statements, all taking place within days of each other.

But for constitutional experts who spoke to Malay Mail, coming down hard on Mohd Asri for merely uttering statements, especially considering his previous exposé and having already issued an apology, could put police in a bad light and be perceived as them being excessive or even harsh.

For lawyer Fahri Azzat, initiating an investigation against Mohd Asri was already excessive and intimidatory in nature, considering there was already an apology made.

He said the investigation could also give off the connotation that anyone who exposes corrupt practices by enforcement agencies in the future would be liable to similar treatment by authorities.

“I wonder if it occurred to the police that the continued criminal investigations may be inconsistent with the attitude of mercy, forgiveness and search for truth that Islam encourages Muslims to do,” he told Malay Mail.

“What is more, if we consider Mohd Asri’s exposé about a week back, it does make one wonder whether these investigations are a kind of retaliation for his expose of corruption in enforcement agencies?

“After all, he potentially exposed the authorities’ shortcomings and now he is the one under investigation; that does not look appropriate to the public eye,” Fahri pointed out.

He said the perception that a complainant, after lifting the lid on possible abuses by the authorities, could still end up being the one investigated would not go down well within the public eye.

The man also called Asri Janggut was thrown into the spotlight when he alleged corrupt practices by the Shah Alam City Council (MBSA) after exposing gambling and illegal business activities involving foreigners in Sungai Buloh, Selangor, going on to claim these rogue enterprises were apparently protected by the authorities.

Since the exposé was broadcasted live by Mohd Asri on Facebook, the MBSA director and eight of its officers, most of whom were enforcement related personnel, and two other individuals believed to be traders of contraband items have since been arrested and remanded by the Malaysian Anti Corruption Commission (MACC).

However, the increased media attention around Mohd Asri eventually led to the demise of his overnight fame, when videos of him claiming poor prayer habits practiced by the police and military forces sparked a fresh round of criticism aimed directly towards the entrepreneur.

His controversial comments triggered police investigations when reports were lodged decrying his supposed disrespect towards the security forces, an investigation which has since led to Mohd Asri being summoned to record his statement at the federal police headquarters in Bukit Aman on Friday.

Concurring with Fahri was both academic director and senior law lecturer at the Advance Tertiary College, Daniel Abishegam, and known rights and criminal lawyer Rajsurian Pillai.

Both Abishegam and Rajsurian were on the same page when they described the actions of the police as borderline harsh, with the former saying that such conduct could even be seen as an attempt to stifle freedom of speech and demonising public opinion.

However, Abishegam conceded that Mohd Asri would have been better off if he had refrained from making those comments.

“Sweeping statements like what he made against the police, especially ones that cannot be objectively verified is wrong and should not have been made.

“The police should weigh what exactly, if any, harm was occasioned as a result of his statement and then only act. It does seem that there was no real harm as Malaysian online users generally criticised him for the statement and further he has apologised for the statement.

“If the police decide to go after everyone who has ever said anything against them regardless of any consideration of proportionality in their actions, this will be seen as an attempt to stifle valid criticism and may discourage future whistleblowing,” said the academic director.

Rajsurian then pointed out that despite appearing excessive, the police investigation on Mohd Asri are actions which are by the book and within their jurisdiction as enforcers of the law.

Criminal lawyer Rajsurian Pillai pointed out that despite appearing excessive, the police investigation of Mohd Asri are actions which were by the book and within their jurisdiction as enforcers of the law. ― Picture by Mukhriz Hazim
Criminal lawyer Rajsurian Pillai pointed out that despite appearing excessive, the police investigation of Mohd Asri are actions which were by the book and within their jurisdiction as enforcers of the law. ― Picture by Mukhriz Hazim

He suggested, however, that a possible outcome could see no charges eventually levelled against Mohd Asri since he had issued an apology, but said investigations would go on as usual like any other case up to the point when deciding to prosecute him or otherwise.

“We can’t stop them from doing so (investigating). Whether they should investigate such a case for criminal action is another matter. To me they probably should not.

“Perhaps after taking his statement for investigation purposes, the police can choose not to pursue a criminal case against him in court. Though, I agree, criminal investigations seems harsh on Mohd Asri,” he told Malay Mail.

Abishegam shared similar sentiments saying he felt that Mohd Asri would probably not end up not being charged in court for his statements.

“I think this investigation is just to shake him up a little and to make sure he understands what he did was wrong. I doubt he will go on to be charged,” he said, referring to the investigation.

What if he is charged in court?

Bukit Aman Criminal Investigation Department director Datuk Huzir Mohamed on Thursday revealed that police are investigating Mohd Asri for alleged offences under Section 505(b) and 505(c) of the Penal Code as well as Section 233 of the Communications and Multimedia Act (CMA) of Malaysia 1998.

Bukit Aman Criminal Investigation Department director Datuk Huzir Mohamed revealed that police are investigating Mohd Asri for alleged offences under Section 505(b) and 505(c) of the Penal Code as well as Section 233 of the Communications and Multimedia Act (CMA) of Malaysia 1998. — Bernama pic
Bukit Aman Criminal Investigation Department director Datuk Huzir Mohamed revealed that police are investigating Mohd Asri for alleged offences under Section 505(b) and 505(c) of the Penal Code as well as Section 233 of the Communications and Multimedia Act (CMA) of Malaysia 1998. — Bernama pic

The offence under Section 233 of the CMA relates to sharing of offensive and menacing content, which carries a maximum fine of RM50,000 or a jail term not exceeding one year, or both.

Sections 505(b) and (c) of the Penal Code addresses offences related to statements being made deemed as conducing to public mischief; Section 505(b) concerns statements made with the intention to cause fear or alarm to any section of the public or could have been induced to act in such a way.

Section 505(c) involves making a statement with the intention to incite, or a statement that is likely to incite any class or community to commit an offence against any other person, with each of these charges carrying a jail sentence of up to two years, or a fine or both.

However, an Exception exists within the Penal Code pertaining to Section 505 of the Act, where is states;

It does not amount to an offence within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it without any such intent as aforesaid.

For Fahri, this Exception included within the law would make all the difference should Mohd Asri be hauled to court.

“I think 505(c) Penal Code may not apply because of the Exception to that provision.

“Clearly he has reasonable grounds for believing and makes it with that intent,” he suggested.

Abishegam meanwhile points out the ambiguity of Section 505 should be something that is addressed by Parliament in the near future to avoid authorities abusing its provisions.

He however felt that it could spell trouble for Mohd Asri if he is charged, as the wording of the Section could see him caught within its wide dragnet, adding the inserted Exception would probably not make a difference.

“In the event that he is charged, I think the exception won’t be helping Mohd Asri much as it would be difficult for him to prove he had reasonable grounds to believe what he said was true.

“There are no statistics on whether the police pray or not and rumours and anecdotes won’t do.

“So because of the vague wording of the Section, they might just get him,” he said.

Rajsurian, who also agreed to the ambiguity of the Section, also conceded and suggested that Mohd Asri could be facing a lengthy legal battle if he is charged.

“Section 505(c) is ambiguous and widely drafted. So, considering what was said, he could indeed be caught by it,” he added.

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