Retention of Section 114A is against the freedom of expression guaranteed under the Federal Constitution

G Vinod | August 24, 2012
NGOs says they will continue to campaign against the new amendment until the government decides to review it.
PETALING JAYA: The government’s decision to retain Section 114A of the Evidence Act drew flak from various non-governmental organisations.

Lawyers for Liberty coordinator Fadiah Nadwa Fikri said the government’s defiance showed that it was against the freedom of expression guaranteed under the Federal Constitution.

“It’s a great disservice to democracy and shows that the government does not tolerate criticisms, especially when the general election could be called anytime soon,” said Fadiah.

Yesterday, Minister in the Prime Minister’s Department Nazri Aziz said the government will retain the amendment, claiming it protects public interest.

He said the Act could help thwart any attempt by certain elements wanting to harm the country.
“I did not hesitate to table the bill in Parliament in April because I thought that the amendment was necessary for the security of the country,” he told Bernama.

Fadiah said that the burden of proof under the amendement would now fall on the accused, which is opposed to the principle of “innocent till proven guilty”.

“Anyone can hack into your computer and post something defamatory but you will be charged instead of the perpetrator,” said Fadiah.
The only way now, said the lawyer-activist, was for the accused to approach the court to find out whether the law runs against the constitution.
“But it will be tricky because not many are confident in our judicial system. Our courts usually prefer to stick by the government’s decision,” said Fadiah.

Government needs to be sensitive
She added that Lawyers for Liberty would continue campaigning against the legislation until the government review it.
National Union of Journalists (NUJ) secretary-general V Anbalagan said that it was best for the courts to decide on the matter but the people may have to wait until someone is charged first.

“Right now, we have no locus standi to challenge the law. The person charged under the law can challenge it if it’s ultra vires the provisions in the Federal Constitution,” said Anbalagan.

Taking a swipe at Nazri, Anbalagan said the minister cannot go around justifying the law by saying the matter was brought to Parliament and was debated accordingly.

“The government must be sensitive to people’s aspirations. The law is not only affecting MPs but all of us. The government must consult the public before tabling a Bill, not bulldoze it through.
“Besides, there are more intelligent people outside than most MPs in the Parliament,” he said.

Campaign to continue
Centre for Independent Journalism (CIJ) executive director Masjaliza Hamzah said that the new amendment would affect businesses that rely on Internet.

“Their views were clearly voiced out during the Internet Blackout Day,” she said.
Since the government is adamant in wanting to retain the law, Masjaliza said that the Cabinet must inform the public on how the ministers voted during their discussion to review the law.

“The Cabinet said that they will always consult the rakyat for future legislations but yet maintain that this law is good despite all the flak,” said Masjaliza, who also vowed to campaign against it.

Meanwhile, Bar Council president Lim Chee Wee said they are in the midst of engaging the Attorney-General’s Chambers in sorting out issues of anonymous and offensive posting, which shifts the burden of proof to the potential accused.

“No other country has such a statutory presumption and reversal of burden. The law cannot be drafted so wide as to be open to abuse,” he said.

The amendment to Section 114A was gazetted in July this year.

Section 114A presumes 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 proven.

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