August 27, 2012
Message to Dato’ Seri Nazri Aziz: Why Section 114A should be repealed
Question Time (08-23-12)
By P. Gunasegaram@http://www.thestar.com.my
Continued opposition to this piece of legislation may yet result in it being taken off the statute books.
THE recent amendment to the Evidence Act with the insertion of Section 114(A) basically presumes that a person who is depicted in a publication as owner or administrator is presumed to have published the contents.
This effectively means that those named in publications are presumed guilty of any offending content that may be posted, including those on the Internet where there is no licensing and it is easy to use some other person’s name, photograph and details as the originator.
This presumption of guilt, requiring the accused to prove his innocence, instead of the prosecution having to prove his guilt, is a strange reversal of the rule of law when the entire justice system is based on the assumption of innocence unless guilt is proven.
It is stranger still coming in the wake of moves to liberalise draconian laws such as the Internal Security Act which provided for detention without trial, and the Universities and University Colleges Act which severely curtailed the rights of students to participate in the political process.
When there is such liberalisation taking place, it is strange that the Government should be setting the clock back by introducing legislation that goes clearly against the grain of justice.
Yes, the Internet space is a raucous one and lots of stuff are pasted and 
posted, and people, including many in the Government, the Cabinet and the Opposition, are regularly blasted for things that they may or may not have done.
But there are laws to deal with them such as the defamation laws. And some of the victims have sought recourse to these with visible success, which includes Information, Communications and Culture Minister Datuk Seri Dr Rais Yatim.
Why, therefore, should a sledgehammer be given to prosecutors to bring a tonne of weight down indiscriminately on people who may not have committed the offence, but may have a tough time proving that they had not and may become involved in tangled knots with the law for a long time?
Conspiracy theorists, of whom a lot exist in this country due to the nature of the way things are, have immediately seen this as a move to limit criticism. That’s hardly a PR effort by the Government.
When the Centre for Independent Journalism organised an Internet blackout on August 14, it met with a tremendous response and many people just did not post anything on the Net during that particular day.
Such support must have had an effect on the decision of the Prime Minister to call upon the Cabinet to review its decision to pass the amendment to the relevant Act.
“Whatever we do we must put the people first,” the Prime Minister had tweeted, and who can disagree with that?
But unfortunately, the Cabinet stuck to its guns and backed its previous decision. Dr Rais said the Cabinet discussed it exhaustively and decided not to make any changes because Parliament was represented by the ruling party and the Opposition and had debated it.
“Once it is officially passed, to do something now is an afterthought,” he said.
Dr Rais added that the Law Minister would explain further. Later, Home Minister Datuk Seri Hishammuddin Hussein said the controversial amendment would be explained further by the Attorney-General.
“If explained properly, I believe right-thinking people will know why the amendment was tabled in Parliament and approved. If there still are fears, laws can also be tweaked, amended and abolished, but don’t get emotional about it,” he said.
Those interested will wait for the Government explanation, although Dr Rais had already said that presumption of fact was nothing new in law and there was still room for accused persons to defend themselves.
The converse position is that such a law can be abused.Those who want to “fix” someone on the Net can post comments and claim that it came from that particular person. And that person will be tied up in knots trying to defend himself.
That is the main fear among Internet users and other publishers.Inordinate power is in the hands of prosecutors who now don’t have to prove who the real publishers are.
The question is why grant them these additional powers under the amendment when the entire Internet is subject to the laws of the country? The only difference is that there is no licensing of the Internet compared to conventional media such as print and broadcasting.
Thus, the new laws are seen as a move to bring the Internet under control 
more quickly than using existing laws, a move which the disinterested would oppose.
Policymakers may actually realise that. As seen by the quote from the Home Minister, if there is continued strong opposition to the amendment, it could be repealed.
Perhaps it may need another tweet from the Prime Minister to make that happen, and this time he will be at that Cabinet meeting. That should make a difference to what the Cabinet may think.
YB Dato Nazri,
I hope you or your assistants are reading this posting on my blog. I know you well and am confident enough to write this.
We cannot help you and your colleagues in the Cabinet led by Prime Minister Najib if all of you are scared of your own people. Let us recognise that Malaysians have matured over these year to think for themselves, thanks to the Internet. This is despite efforts by our government to use the education system to prevent them from thinking critically.
You know the fundamentals of the Law and I do not have to tell you what these are. We have always operated under the cardinal principle, “innocent unless proven guilty”. The prosecution must prove beyond reasonable doubt that someone is guilty. Why reverse that and violate our Constitution which safeguards our basic freedoms? –Din Merican
No not yet. Umno youth has to be the test case here. let it go on. Then when they have swallowed this bitter pill then they will have learnt their lesson. The bitter the medicine the better.
C’mon Umno Youth , try and prove your innocence under this repugnant law.
There are enough laws in Malysia to deal with different matters. yes defamation is one of them that can handle remarks that are unfounded and vicous and have the potential to destroy a persons reputation.
Dr Rais, who do you mean by ‘right minded people”? and err, who says we are emotional? We are expressing our opinion, does that make us emotional?
and further one day if this law is not rpepealed, when they are in Opposition and have legitimate concerns and use strong words online to oppose , these laws can be used against them too. For now they are Minsiters and are safe? Perhaps they need to think about that.
Din,
What makes you that nazri would read your article? If it does just like zaid Ibrahim would have resigned. Probably they may throw your articles into waste paper basket
Let me play Devil’s Advocate for a sec.
The presumpion of guilt is already in application in drug cases, rape cases, sexual harassment cases, racial discrimination cases to mention a few. If is found in the way laws are drafted and procedures followed.
For example, when you enter a supermarket with a plastic bag in hand in Malaysia, you are presumed to have the intent to steal and you are required by security to deposit your bag outside. Not elsewhere like in U.K. or U.S.
When you apply for a job, over here for example, you are required to give blood and urine sample. What is that for unless you are presumed to carry the burden of proof i.e. guilty until proven innocent.
In rape cases when only proof of sexual penetration is needed to prove guilt, the defendant would have to prove that the complainant was drunk, had given consent etc. What is that all about unless the accused has the burden of proof?
Then what about prior bad acts? These are prejudicial. Under certain circumstances, past convictions are allowed. What does that mean? If not the accused being presumed guilty until proven innocent. Laws in the U.K,. have been amended, are being amended to allow these.
When Kathy studied law in the U.K. before making Perth, Australia her domicile, she was told of the “Golden Thread” of English law i.e. that you are presumed innocent until proven guilty. That seems to have stuck with her ever since. Today it is never further from the truth as recent amendments in the law acknowledge that in some cases justice is better served if the burden is reversed because the accused has the information needed to prove his or her innocence rather than the prosecution.
So folks! It is not all that black and white to begin with but murky. Once you get your head around to the meaning of de jure presumptions of guilt like in situations when you are required to show proof why you should not be dismissed, I am confident you will get my drift. With the internet and all, we are not living in the time of Lord Sankey in the case of Woolmington v. DPP.
So there is a case for Sec. 114A. It is purportedly to keep abreast in development of the law as occured elsewhere. As to whether it is drafted too widely and will be abused that will have to be dealt with on a case by case basis. It is up to the country’s highest court, first to try to interpret the law and the intent of Parliament and if it cannot to then to send it back to the parliamentary draftsman for an amendment.
But repeal? Like ObamaCare it can only be repealed by both Houses of Parliament. Highly unlikely since BN is in control of both.
So my friend Randy Rais, my former partner in ‘crime’ of Bugis Street fame, can be randy all he wants. He still has that freedom.
Bean,
Bugis street fame, huh? Thats Nong Nong time ago. Those ahem resided somewhere in little India. That’s where you have mustafa shopping centre that practically sells almost everyday, 24 hours a day, seven days a week. Yes, bean just like in Harold’s London, you need to have all your belongings tucked into deposit books. Else mata2 from serangoon npp nearby would apprehend you. Hahaha!
Wah! Your good buddy got ready good time. Having fun in Bugis. Then chow at food court complex. And then if possible read some books in bras basah. That’s after some good time at beach road. Pick one Arab quarter or golden mile complex for Tomyam kong. If you guys got the leg powder can head on to orchard road open air food court. Those days, folks like parents who would use their abacus & scream. Wow! It’s f cheap in singapura.
Seriously on rape cases, you are right! Not too long ago, one Singapore scholar bought a house in sentosa aka pulau belakang mati quite some ago enjoy cohabitation with one china dolls for months if not years. One fine day, the girl found death floating on the pool. Guess what Singapore assume the cases. Me not law expert but if you care to google. Beyond reasonable doubt does not really apply in Singapore. As such it’s slightly easier that the suspect to be convicted. Anyway, the girl was found dead because she accidentally drop into the pool while she was dead drunk. Luckily that guy was exonerated. But then the price of his house drop at least 50% of the real value. Hahaha! Bean, moral of the story : don’t play play har. As for the beyond reasonable doubt thingy, no sure chan sek keong can rectify
Tok Cik,
Chan sek keong, yipoh Mari. Current Singapore chief justice. Aiyaa, another malaysian
Good narrative by Looes74 on the good times in the late ’60s in Singapore. Harry Lee must take the fall for bringing down Bugis St. Not a smart thing to do because of the loss in foreign exchange earnings for the island state. Today Singapore is the gay capital of Asia supassed only by San Francisco the world’s gay capital.
Why do you think Semper fi has his domicile in its neck of the woods??
Having said that care must be taken to differentiate between the legal burden of proof from the evidentiary burden of proof. The latter shifts like a football. But the former does not shift. If you can understand that then you’re on your way to becoming a hot shot lawyer.