From Gobind Singh Deo, via e-mail
Attorney General Abdul Gani Patail says the amended Section 114A of the Evidence Act 1950 still holds the prosecution responsible for carrying out a comprehensive investigation before making charges.
He said no charge could be made against anyone, simply because that person’s name was linked to a published article.
The AG also said it was imperative to firstly, prove the article was offensive in nature, and secondly, that it was written or published by the person concerned.
With respect to the AG, if that were the case, why is there the need for S114A to begin with?
S114A provides for a presumption. The logic behind the need for presumptions is simple. It is where the facts which need proof are known only to the person that the law will require a shift of burden and provide that the person must prove those facts himself.
This is because only he will have knowledge of those facts. The prosecution would not be in a position to prove it. As such a presumption is invoked and the accused is required to rebut it.
An accused ordinarily has to only raise a reasonable doubt in order to secure an acquittal in a criminal trial. This is basic criminal law. The Federal Constitution guarantees equality of persons and that extends to equal application of law to persons in criminal trials.
Where a presumption is invoked against him, the standard placed on him to rebut it is higher. This is an exception to the norm. Unless absolutely necessary, such arbitrary presumptions would not only be unfair but also open to abuse.
Going by what the AG has said, the prosecution will prove those exact facts which S114A seeks to presume to exist. If you can and are going to prove it, why have a presumption? Why reverse the burden and make it more difficult for the person?
This goes to show the objections advanced against S114A of the Act are justified. The AG may want to assure us that it will not be abused by promising thorough investigations and so forth but that’s not the point.
The question is simply this. Is it necessary to have a provision which presumes something which you are going to prove anyway ?
With respect, I think the explanation of the AG provides all the more reason for S114A to be repealed instead.