Wake-Up Middle Malaysia: You’re guilty until proven innocent

June 7, 2012

Wake Up Middle Malaysia: You’re guilty until proven innocent


PODCAST For the 15th Middle Malaysia podcast, media consultant Oon Yeoh speaks to Foong Cheng Leong, co-chair of the KL Bar IT Committee, about the new amendments to the Evidence Act.

It was Foong who first broke the news about the new amendments through an article on the LoyarBurok blog.

He says the article at first didn’t garner much attention. That all changed when theSun published a front-page article based on it. Now, everyone’s talking about the serious implications of the new amendments.

Foong (right) gives a broad overview of what the new law is all about and explains why it should be of grave concern for all those who use the Internet.

He also gives his opinion on different social media scenarios where the Evidence Act could be applied.Foong’s concerns, however, are not just on how this new law could affect criminal and politically-charged cases but also civil cases.

He shows how this law could affect cases concerning election offences and gives a real-life example of a past case that probably would have turned out very differently had the new law been in place then.

Foong, who often comments about IT issues, is totally against this law and is working towards having it repealed. Listen to Foong in this 12-minute podcast.


Recent Amendments to Evidence Act Passed without Debate!!

The recent amendments to the Evidence Act passed without debate at Parliament last Thursday on May  19, 2012 clearly signals the government’s intention to increase censorship on the Internet.

The amended act is deeply problematic at several levels and directly counters fundamental democratic principles. This does not bode well for democracy in Malaysia, and voting Malaysians should take heed of such a move as a further sign of things to come, if the government persists in dismantling safeguards to our civil liberties and fundamental human rights.

Innocent until proven guilty

At the most basic level, the newly introduced Section 114(A) to the Evidence (Amendment) (No 2) Act 2012* has the impact of removing the critical presumption of innocence principle, which is at the cornerstone of our criminal justice system. This principle protects individuals against wrongful conviction, by ensuring that everyone has access to a fair trial. It also upholds the ideal that every person is a law abiding citizen until proven otherwise, and provides an important safeguard against abuse of power by the government to persecute individuals by requiring any allegations to be proven beyond reasonable doubt.

If this amended law were to take effect, all 17 million internet users in Malaysia who post anything online – from emails to comments to status updates – will exist in a state of presumed illegality. Instead of being law abiding citizens, we are all instead assumed to be criminals unless we can prove otherwise. A law that seeks to remove such a fundamental protection to our civil liberties cannot be made under the arguments of expediency, and definitely without extensive and well-considered debate which takes into account public interest and participation.

Punishing the victims

Datuk Seri Nazri Abdul Aziz from the Prime Minister’s Department justified the need for such an amendment to overcome the difficulty of anonymity and pseudonyms in cybercrime cases. First of all, it is important to clarify what is meant by cyber crime. Under the Computer Crimes Act 1997, the offences cited are unauthorised access to computers (for example, hacking into someone’s computer or account), including for the purposes of committing another offence (e.g. fraud), unauthorised modification of content (e.g. installing spyware or changing any kind of data) and wrongful communication of passwords. It is clear from here that the main forms of cyber crimes involve someone else taking control of your equipment and making changes to your content, programmes or data.

So who does the amendment protect in cases of cyber crime? These  amendments, in fact, allow hackers and cyber criminals to go scot-free by making the person – whose computer or account is hacked – liable for any content which might have been altered. Given that more than 600,000 Facebook accounts are hacked daily, this Act not only disproportionately impinges upon a large majority of internet users in Malaysia, it is also inherently flawed in logic and provides for a serious miscarriage of justice.

When injustice becomes law, resistance becomes duty

Photo republished under Creative Commons licence, original photo by Stringberd on Flickr

For example, in the increasingly familiar cases of online harassment – where women and girls find their names and images being posted on sites under fake accounts created by stalkers and harassers – the newly amended Evidence Act does not help them in attaining redress or justice. In fact, it places an additional burden on them to prove their innocence and re-victimises the actual victims of cybercrimes.

In fact, the more skilled you are at hacking, the more the law protects you by assuming that the party you hacked is guilty of the offence.  For example, if I want an easy way to give trouble to someone I dislike, I can simply create an account in his or her name, and post all kinds of problematic content – like hate speech, or threats to bomb the Parliament, for example. Under the new section in the amended act, this person would be automatically held liable and – provided I’m smart enough to hide my actual IP address – I can actually get away scot-free. It does not address the issue of anonymity, and it only acts to punish potential victims.

Anonymity a key principle of an open internet

Freedom from surveillance and protection of an individual’s right to privacy is one of the grounding principles of a free and open internet framed on fundamental human rights. This includes the ability to be anonymous online, and to use encryption software should one choose to do so. In many instances, anonymity is an important safeguard for vulnerable or marginalised individuals. For example, women who are in situations of domestic violence need to be able to post calls for support without putting themselves at further risk by publishing their name or other identifiable information. It also promotes transparency and accountability in democratic governance by protecting whistleblowers against persecution by authorities for bringing to attention abuses of power.

If the government of Malaysia is committed to democratic deliberations, transparency and accountability, any proposed measure to remove the principle of anonymity online needs to be examined and debated critically, and potential violations to our human rights cannot be simply waved aside to make the job of police authorities easier.

Violating fundamental human rights

Finally, as a member of the Human Rights Council (HRC), Malaysia has an obligation to (a) “to uphold the highest standards in the promotion and protection of human rights” and (b) to “fully cooperate with the Council.” At the May 2011 Human Rights Council session, the Special Rapporteur on Freedom of Expression and Opinion, Mr Frank La Rue, presented a report on the internet which states that, “The Internet is one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information, and for facilitating active citizen participation in building democratic societies. As such, facilitating access to the Internet for all individuals, with as little restriction to online content as possible, should be a priority for all States.”

He further recommends against the criminalisation of legitimate expression, and making internet intermediaries (including parties that provide online community forums, blogging and hosting services) liable for content that is published through its services. This is because such measures will result in a “chilling effect”, encouraging self-censorship and surveillance practices.

The amendments to the Evidence Act clearly run against these recommendations by placing blanket assumptions of criminal liability upon all internet users who use the internet for information exchange and expression, including those who host websites which  allow for interaction with users, e.g. comment boxes. This law will promote a feeling of fear amongst internet users and result in occurrences such as website owners removing comment functions – which is a key characteristic of the internet today as a vibrant, interactive public space for democratic deliberations.

As a member of the HRC, the government has an obligation to develop measures to promote free and open access and use of the internet for expression, information exchange and democratic participation and debate. Not enact laws that will place undue and disproportionate burdens on the ordinary Malaysian public from engaging with the space.

The newly amended Evidence Act is bad law. It adds to the string of other recently passed Acts such as the Peaceful Assembly Act – which only acts to remove critical safeguards to civil liberties. If the government of Malaysia is truly committed to principles of democracy, justice, due process and fundamental human rights, it needs to demonstrate this clearly by immediately taking steps to ensure that these laws do not become an everyday battle for us Malaysians to contend with, in the exercise of our citizenship rights.

* The newly included Section 114A provides that:

– a person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

– a person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

– Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved. (Computer here means any data processing device, including tablets, laptops and mobile phones.)

From The Sun news report, “Internet Users cry foul over Amendment to Evidence Act“,  May 21, 2012


To my commenters and readers, we are all in danger if we are not circumspect and careful with what we write on http://www.dinmerican.wordpress.com.

Remember, we are living in Malaysia where dissent, let alone democracy, is not tolerated.  Sad but that is reality.

So I have chosen to moderate all comments which appear on the blog. This Bill which was rushed through during the “last” session of Parliament on May 19, 2012, is unusual in that we are guilty until proven innocent. And if it becomes law, God Forbid, we have all lost our cherished freedom of expression. –Din Merican

28 thoughts on “Wake-Up Middle Malaysia: You’re guilty until proven innocent

  1. Guilty, unless proven otherwise

    Wednesday June 6, 2012

    “The newly-inserted Section 114A of the Evidence Act is another example of a law that was rushed through Parliament without much debate and discussion, to the detriment of us all.

    AS often happens, e-mails pop up in my inbox with interesting headlines. While I usually save them to read later, I had to open this particular e-mail immediately because it had my name in it.

    To my horror, I found an article purportedly written by me being circulated to much salutary praise.

    Normally, I would either ignore it or leave it to readers to judge whether I really wrote such an article.

    It would be obvious, I thought, to those who have followed my columns all these years that the style in that article, the photo byline notwithstanding, was definitely very different from mine.”

    Read more here: http://thestar.com.my/columnists/story.asp?file=/2012/6/6/columnists/musings/11415707&sec=musings

  2. Marina,

    Talk to your dad. He has plenty of clout. All your dad need to do is say that this piece of legislation should be flushed down the toilet, and Najib and ilk will shiver in their pants… and that Nazri, “the village idiot of 2007 and 2008” will have his little marbles shrunk in his pants.

    Talk to your dad… forget about your brother, he is hopelessly unpopular with the UMNO grassroots.

    Talk to your dad…. if he doesn’t listen to himself all these years, he should at least listen to you.

    Talk to your dad.

  3. (civilised) country called Australia.-anakrakyat

    Rubbish…. White australia has a black history. The only country which said that the continent was “terra nullius” before the arrival of the white man.

  4. And they think they can scare the ra’ayat with these amendments !

    Unlike them, the ra’ayat is inventive , innovative and really looking forward to change . Hence , they will , insteaded of being cowed , they will re-invent themselves to achieve the change that they seek .

  5. I really don’t think that’s gonna change anything.
    After all the Sedition Act, OSA, all sorts of by-laws and in-laws have already been used willy-nilly to persecute detractors of the regime. The important thing is to make sure that we don’t violate the cyberspace with spurious accusations; specious or fallacious rantings and predictions. Your blog Dato, has so far been free of such drivel and has proven to be one of the most informed, mature and free-wheeling. With the exception of a few near-misses, most of us here know the limits of our comments.

    There must be a certain decorum as well reasoned arguments. But most importantly, let us look at these attempts at command and control with humor.. Thank God for You-Tube!

  6. Do you guys not know that we already have such laws that reverse the evidentiary burden of proof on to the accused? The presumption of innocence is only an evidentiary rule. It does not make you guilty of crimes you are accused of. It only reverses the evidentiary burden of proof. The legal burden of proof is still on the accuser.

    Now here’s the deal. There is no need to go into the gamut of cybercrimes that comes with the internet. Not to mention old ones like fraud, theft etc. Popular use of the internet only started in the ’80s and only now we have different countries and the different agencies coming out with their legislation targetted at combating such crimes, new legislation being introduced and old ones being amended to keep abreast with changes in technology. Needless to say there are serious constitutional issues like when our right to privacy is being invaded. You no longer need to go ‘goyang your teloq’ the old fashion way along Jalan Setiakasih Satu to be guilty of invasion of privacy. You can read someone’s e-mail without leaving the comfort of your basement and stalk and harass another using fb.

    The said amendments to the Evidence Act may be overly broad ( I say just maybe and we will have to see how it gets implemented). There are constitutional issues involved e.g. we don’t need to give evidence against ourselves. That’s the old fashion prohibition against self-incrimination made available to us through the English common law which India had it codified and Malaysia then copied it. The Malaysian government has been ripping off pages of legislation from other jurisdictions and make the law their own. This is just one more instance. Don’t think it is original.

    My greatest worry is that with the same legislation our case law may take us in a different direction.

  7. “A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.”

    It is only a presumption and like all presumptions are not irrebuttable. It is NOT proof. Can’t follow that one? Maybe you ought to have a talk with Dato’s sidekick Goolbatok Singh who is a lawyer by training. Good luck to you.

    If you have a licensed Glock in your drawer at home which has the fresh acrid smell of burnt powder, is it an invasion of privacy if I ask you when you last fired it. It is after all yours and you are supposed to have possession of it at all times. If it has left your possession who else would know?? Duh … !!

    You guys got a better idea?

  8. Over here, the police can come to your house to remove your computer and subject your hard drive to an exhaustive forensics examination. They will need a search warrant to do that and to have a search warrant issued and signed by a magistrate, the police will need a probable cause (that a crime has been committed). Otherwise it is a violation of the search and seizure clause of the Fourth Amendment and is not admissible into evidence. Even Muthu knows that from watching police stories on TV.

    In Malaysia the police doesn’t need a search warrant. They can come over to your house and plant evidence like drugs and then have you arrested for possession. Since it is your house it is imputed that the drug found in your room is yours. You have control and you have knowledge of its use. Innocent until proven guilty?? Heard that one before?

  9. Yup. It’s not the Law itself which as usual, had to be plagiarized, cut and pasted, but the implementation proper.

    The cybersphere is by it’s very architecture and virtuosity – anarchic and uninhibited. The utility of this Law seems to be pretty limited, except for the purpose of selective persecution.

  10. So we’re being subjected to another toe the line gag order or else Mr. R the change mode man and his possie of mode changes will be knocking at our doors.. Could be worst , Mr. change mode man could without the hustle and bustle of parliamentary debate decide to delete the internet altogether… This piece of legislature will undoubtedly have a genuine malaysian flare , originality and the world reknown Land of The Boleh trademark written all over it… If this happens , then walaa we’re back to the dark ages….

  11. Looks like Kathy rode off with Sir Lancelot – never to return. She’s very sensitive. Didi too has been moderated out.
    Kathy is tired of the nonsense in Malaysia. –Din Merican

  12. Hi Dato’ & Mr Bean, I am here and Dato as usual is right. We cannot even have a decent conversation and a constructive one without Big Brother telling us we are worng to think and express our point of view.

  13. Eh … Dato is not always right. Sometimes he gets left behind by his kerbau because he rides back to front and knows not his right from his left. In the old days he used to be a conservative right winger Today he’s a little left of center. Is that right Dato?
    I have become a civi society person. Is that a little left of center? –Din Merican

  14. Crazy…we are all in deep trouble….How do we prove a Negative fact like having to say ” I did not do it ” ?

    Its like moving forward in motion, but in the Reverse gear, or whilst airborne in the reverse throttle ?
    What a Reversal defying all physical or scientific laws ?

  15. In politics the center is always in a constant state of flux and is moving, never stationary. Today you may be left of center, tomorrow you may find yourself to the right. So you gotta keep moving. making constant adjustments on the key issues.

    To Kathy:

    You came on this blog not too long ago, swinging. You took a swing at me. You’re one fiesty woman. Both Dato and I have been round the block more times that you have.. But do not be afraid to take a swing at Dato now and then. But don’t let it be below the belt.

  16. Mr Bean, your legal expertise needed here on the following,’

    Under this stupid legislation which is more likely to be passed in a Stalinist state, how far does this apply to those Malaysian bloggers who live overseas and who post articles which appear to contravene the Evidence Act.

    That is, does the hand of the law reaches out to overseas Malaysian-bloggers (irrespective if they are PR or not) who post articles about Malaysia contravening the Act, in their own blogs?

    Can Malaysia issue a warrant of arrest in absentia, say, hypothetically, for Kathy who lives in Oz, and who post articles in her blog ( the service provider located in Oz or USA) appearing to contravening the Act?

  17. We cannot even have a decent conversation and a constructive one without Big Brother telling us we are worng to think and express our point of view.-Kathy

    Why you worry? Big Bully is in Kuala Lumpur but you are somewhere in an urban bushland of Oz.

    Big Bully can’t touch you unless you decide to come home to Big Bully’s den, or unless Najib and his ilk can get pass through Julia Gillard’s pants (Read again, I said pants, NOT panties, since Julia Gillard rarely or never wears a skirt)..

  18. “Can Malaysia issue a warrant of arrest in absentia, say, hypothetically, for Kathy who lives in Oz, and who post articles in her blog ( the service provider located in Oz or USA) appearing to contravening the Act?” — Uncle Frank

    To have control over the party said to have committed the offence, the Malaysian courts will need to have personal jurisdiction over him or her – referred to as in personam jurisdiction. Also the alleged crime is not a crime in the jurisdiction it was alleged to have been committed i.e. down under in BushyLand. Malaysian courts have no subject matter jurisdiction to begin with. Kathy will have to return to Malaysia and make the same comment.

  19. Then there is the issue of sovereignty. The Aussies won’t be too happy if all sorts of pretenders come over to their territory to serve legal process on their residents. The Malaysian government has no jurisdiction over Malaysians on foreign soil. Kathy can show them the finger – or more if she wants to.

  20. “Can Malaysia issue a warrant of arrest in absentia, say, hypothetically, for Kathy who lives in Oz,” — Uncle Flank

    What good is an arrest warrant if you cannot serve? It has to be served and it has to be properly served.

    If you are a New York resident and your estranged wife is looking to serve a summons on you for failing to pay child support but you have escaped to Alaska to avoid jurisdiction of the New York courts, attorneys here can rely on the long arm jurisdiction if you have enough ties to the state of New York; or they can lure you with an invitation to a free dinner and a lap dance at one of the exotic clubs here so they can serve process on you. The idea is so that the court in New York can have in personam jurisdiction over you.

  21. Thank you, Mr Bean. That was very educative.

    So, Kathy dear, you can show your middle finger to Big Brother in Kuala Lumpur. Or you can ask Tean the Monk to do it for you. Tean run into the Buddhist temple in Tumpat Kelantan to hidfe so the arm of the law in Kuala Lumpur cannot get to him. PAS will protect him. If not, Tean the Monk can always swim across the Golok River to Takbai and join up with the Patani fighters to show the middle finger at Kuala Lumpur.

  22. Gosh I feel so secure. Thanks Mr Bean. ( and frank). Was I swinging? Well am still not afraid I tell you to tell them a thing or two.

    Middle finger from middle Malaysia. And actually my comment was for the Malaysians. They cannot even speak constructively on wrong policies without Big Brother telling them off and worse finding them guilty with a reverse burden of proof. Only drug laws, drink driving laws in Victoria does that . In very strict circumstances can you ever do that. But the biggest revelation is Malaysia is no longer a democratic country is it?

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