Message to Dato’ Seri Nazri Aziz: Why Section 114A should be repealed

Question Time
By P. Gunasegaram(08-23-12)@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.