June 18, 2012
Prosecution without resort to Section 114(a) of the Evidence Act 2012 possible
by Nigel Aw@http://www.malaysiakini.com
The conviction of an engineer this month for insulting the Perak Sultan via online comments is proof that prosecutors can succeed in such cases without resorting to the hotly-disputed Section 114(a) of the Evidence Act 2012.
“It’s been done before, look at the sedition case involving the Perak Sultan,” said human rights lawyer Edmund Bon (right) when contacted today.
The Butterworth Sessions Court had on June 1 sentenced Chan Hon Keong to a year’s jail and a RM50,000 fine, but he has obtained a stay pending appeal.
Bon said prosecutors were similarly able to pinpoint the origin of the text in Sri Muda assemblyperson Shuhaimi Shafiei’s sedition case.
The key, said Bon who is also a community mover for Pusat Rakyat with Loyar Burok, is for the Police and prosecutors to put more effort into investigation instead of taking the easy way out.
“The question is not about reversing the burden of proof but should instead be to enhance the professionalism of law enforcers,” he said.
Under the amendment passed by Dewan Negara last month but which has yet to be gazetted, prosecutors will no longer be required to prove that a particular online posting originates from a user.
Instead, it is automatically assumed that the owner of the machine or network on which the publication is posted is behind the article, unless he or she is able to prove otherwise.
If the publication carries a person’s photograph, pseudonym or name, it is also automatically assumed that person is responsible unless proven otherwise.
Possibility of wrongful conviction
While concurring that the amendment is procedural in nature and merely involves a particular step in proving a crime, Bon insists that the amendment is a significant one.
“It may just be one element in a charge but it is the most important element…it decides whether you get the right or wrong guy (for conviction).
“The state already has so many resources (at its disposal). And now an ordinary citizen presumed to be the origin of a publication has to disprove it. Not everyone has that kind of resources.”
Bon said the possibility of wrongful conviction cannot be ruled out as a result of this amendment.
He added that, based on the government’s track record, it also opens the possibility that this may be abused for political purposes.
This can be an election issue. It is rather surprising that the Opposition did not make a collective stand on free of expression when this legislation was being debated in Dewan Rakyat. You are now going to be guilty unless proven innocent. –Din Merican
“The conviction of an engineer this month for insulting the Perak Sultan via online comments is proof that prosecutors can succeed in such cases without resorting to the hotly-disputed Section 114(a) of the Evidence Act 2012.”
Is it too early to expect a written judgement by the trial judge in this case?? It would be interesting to read how his reasoing goes since this would be a test of the new legislation. This will be a test case and is likely to go up all the way up to the Supreme Court.
My guess is they don’t expect the decision to stand which is why they have introduced the amendment to Sec. 114 of the Evidence Act.
Gomen trying to silence the citizens. First tried employing the spooks and the gooks and now this. Malaysia should just join North Korea and isolate itself from the rest of the world and become a hermit nation.
” the professionalism of law enforcers “, huuh what’s that??? Never Was,Never Have, Never Will or maybe after GE13, can one????
If you want to ‘abdicate’ your responsibility, just pass it to the other fler. But nobody seems happy to abdicate his throne. Why don’t they just make it easier for the law enforcement, investigation and prosecution officers by shifting the burden of proof onto the accused? Then these flers can go meet up at the mamak stalls and have a jolly good time and let the poor accused sweat.
After all, what is a mere shifting of the burden of proof? Small matter, and it will make everybody more careful of what he does. Then we can tell the whole wide world that we have solved the age-old crime problem. And Cain can finally rest in peace, because there will be no criminal left to pin the curse on him. The 114 amendment is Cain’s legacy. And we must thank the the smart alecks we have for their genius, for thinking of Cain. Haha…
What did this guy say? It’s so hard nowadays. Even a mere criticism of the monarchy is considered an insult to them. They are just human but somehow some people treat them as gods.
This amendment is ludicrous. What if you can’t prove your innocence? Somethings aren’t so easy to prove. Who first proposes this amendment?
I’d played a prank on my cousin once and used his Facebook account to write something on his wall. If I had posted something offensive, how can he prove that he didn’t do it? Unless of course I come out to admit my guilt. But there are a lot of people who got their Facebook or blog accounts hacked so how can they prove their innocence?
I’m sure this will be abused by the government to shut their oppositions up,.
Didi,
You look at the IP address to know whose posting it is because it is tied to a phone number, a name and an address. Try asking the ISP the name and address of the subscriber over here. Verizon would be breaching its confidentiality agreement with subscribers by revealing the IP address without the consent of subscribers. Invasion of one’s privacy is a serious matter. You will need a court order for search and seizure and a warrant will not be issued unless there is probable cause. There will have to be affidavit in support and information from reliable sources and a warrant signed by a magistrate.
well that right did in a nutshell. You would have to TRY & prove your innocence till your blue in the face . as Malik Imtiaz has stated in the otherr thread, it is the intention of this amendment that we are worried about.
“In fairness, it appears that it is the ambiguity of the underlying intention that is fueling many of the concerns. The sociopolitical considerations are vastly different from the strictly legal ones I have attempted to highlight. The fact remains that a good many Malaysians do not have much faith in the “system” and think of the institutions of the state as having been politicised.” M. Imtiaz
This assumes of course that only you have sole access to the computer. That is not always the case. So where do we go from there??
The gomen haven’t heard of Cloud computing and cloud storage. All they know is out house storage, storing their brains in the outhouse.
Scarlet,
That’s in US. I don’t think companies in Malaysia care about invasion of privacy. For example, I suspected TV3 of giving my email address away so that Najib can spam me with his 1Malaysia nonsense. I can’t find any other way for him to find out about that email since that email is only used for me to watch TV3 online.
How can you prove somebody else used your computer? What a plan to reduce the burden of the accuser.
You can always lock your computer with a pass word, didi. But you’re right about Malaysia with no rule of law. If there is then they’ll take their breaches of the law seriously. Simple breach of contract claims take years to wind their way up before they could see the light of day in court, that businesses would insert arbitration clauses into the commercial contracts.
Invasion of privacy even in the U.S. is a relatively new tort. It helps especially the celebrities.
Please send me your email so I could also watch TV3 on line ! I never thought anybody could.