Can and Should Internet Access Be a Constitutional Right?

Posted in Internet by on July 9, 2018

First and foremost, considering the former government’s track record in violating it, any reference to the Federal Constitution by the ruling government is refreshing and encouraging. Thus, the recent call by the Communications and Multimedia Minister Gobind Singh Deo to introduce a new constitutional right, the “right to internet access,” certainly deserves commendation.

Gobind’s call also appears to be in line with the resolution passed by the UN Human Rights Council in 2016 which declared internet access as a human right.

A little about the resolution: the resolution’s significant declarations include: “Affirms that the same rights that people have offline must also be protected online, in particular freedom of expression… Condemns unequivocally measures to intentionally prevent or disrupt access to or dissemination of information online …Calls upon all states to consider formulating, through transparent and inclusive processes with all stakeholders, and adopting national internet-related public policies that have the objective of universal access and enjoyment of human rights at their core.”

In simpler terms, by declaring internet access a human right, the UNHRC had called for equal protection of rights for activities done online as they were done offline, and that states should not disrupt access but facilitate access.

While the bold move is generally well-received, it was not without controversy. The common criticisms are, amongst others, that by declaring internet access a human right, it would mean that a “human right” has been deprived from humans prior to the invention of the internet, and countries who lack the technological means to provide internet can be said to be depriving their citizens a “human right.”

This does not fit well with how “human rights” have been understood; that is being universal, inalienable, and indivisible to human beings. Moreover, many have said that internet access is an enabler of rights, but not a right itself. The critics draw an analogy that humans may have a right to education but have no right to a school.

Therefore, the first question that the government has to ask itself, though an academic one, is whether access to internet should be seen as a ‘right’?

Moreover, our constitution does not lay out the rights that Malaysians are entitled to per se, but only “fundamental liberties” under Part 2 of the Federal Constitution.

The title itself indicates that these are freedoms, instead of entitlements; they are what known as negative rights, meaning the state does not have a duty to provide, but merely to ensure her people are not deprived from without reason.

In contrast, a ‘right to internet access’ could hardly be said a ‘liberty’ and would surely stick out if included in this part of the constitution. More importantly to do so risks diluting the status of our current fundamental liberties, which include freedom from torture and freedom of speech and more, which go to the core of our wellbeing and identity as citizens of Malaysia.

The second challenge that the government would face in making access to internet a constitutional right is of course, the delivery of such right.

Now, access to internet has to be understood from two perspectives. One is in terms of content, i.e., there should not be interference to what can be accessed on the internet; this would relate to issues such as censorship and criminalisation of content. The other, is in terms of infrastructure, i.e. getting access to internet itself.

While the former is more obvious, it nevertheless requires deep consideration when the constitutional clause is being drawn up.

Certainly, it must provide for reasonable restrictions, such as censorship on content that poses threat to national security and public order, for example content of terrorism organisations, and perhaps also content that contravenes our society’s moral values such as pornography.

Any restrictions for these objectives of course would have to be reasonable and proportionate, failing which our courts will step in and nullify.

The latter however, is trickier, and which forms the third challenge.

How can the government strike a balance between making internet access a constitutional right with the economic or financial requirement in providing access nationwide?

As stated earlier, unlike our fundamental liberties, access to internet is a positive right.

This means that it imposes an obligation on the government to ensure such right is given to all citizens of Malaysia. Is it financially possible for our current government to ensure internet access for residence of metropolitan Kuala Lumpur up to residence of deep rural Sarawak? Failure to ensure such universal access sure sounds like a violation of the constitution capable of an action in court.

Moreover, a constitutional right certainly does not sound like one I have to pay for, why should I be charged to exercise my constitutional right? While an argument can be made that even though our right to legal representation is secured under Article 5(3) of our constitution, it only guarantees that we cannot be denied legal representation but does not mean we are entitled to free legal representation.

Nevertheless, there are legal aid centres as well as the National Legal Aid Foundation to provides free legal representation to Malaysian citizens, which are paid for by taxpayers’ money. Does this mean part of our taxes will be used to provide free internet facilities (for example public wi-fi or public internet centres)?

In summary, making internet access a constitutional right is indeed an attractive idea, but more has to be studied and consultation with digital rights experts and advocates have to be held before we support this proposal.

No doubt, it is not impossible to amend the constitution, not only because it has been done before, but also the constitution should be a “living instrument” that keep up with the times. However just because we can, doesn’t mean we should.

Disclaimer: This article is written by Louis Liaw, a legal associate at RamRais & Partners. The original article can be found in https://www.malaysiakini.com/letters/432499

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