Section 114A violates freedom of expression and
is flawed as it presumes one is guilty until proven innocent, says
Suhakam chief Hasmy Agam.
PETALING
JAYA: Suhakam wants the government to repeal or amend Evidence
(Amendment) (No 2) Act 2012, otherwise known Section 114A.
“Section 114A violates the human rights principles of freedom of
expression as enshrined in Article 19 of both the Universal Declaration
of Human Rights (UDHR) and the International Covenant on Civil and
Political Rights (ICCPR).
“The newly-introduced provision, which came into force on July 31,
also goes against a fundamental principle of law that a person is
considered innocent until proven guilty as provided for under Article
11(1) of the UDHR,” said Suhakam chairman Hasmy Agam in a press
statement.
The amendment enables law enforcement officials to hold publishers of
websites accountable for seditious, defamatory or libellous postings
even if they are not the actual authors of the content.
Those affected include people who own, administer or edit websites
open to public contributors such as forums or blogs, people who provide
web-hosting services on Internet access and people who own the computers
or mobile devices used to publish content online.
Section 114A have been heavily criticised by Internet users and civil
society groups that resulted in a day long protest campaign called Stop
114A organised by Centre for Independent Journalism on Aug 14.
However on Thursday, Minister in Prime Minister’s Department Nazri
Aziz confirmed that Section 114A will be maintained on the grounds that
it is necessary for national security.
Elaborating on the principle of innocent until proven guilty, Hasmy
said that Section 114A would pose a challenge in civil cases by
reversing burden to proof.
“While the presumption of fact under the Section 114A is rebuttable, a
person against whom the presumption is applied may lack the time,
resources and more importantly, technical expertise in relation to the
Internet environment, to prove the contrary in order to rebut the
presumption.
“While arguably Section 114A does not shift overall burden of proof
in a civil action, it may have the effect of reversing the burden to the
accused or the defendant, and violate a fundamental principle of law.
Hasmy also countered Nazri’s argument for Section 114A to be maintained on the grounds of national security.
“Limitation of rights of an individual must be imposed solely for
protecting a legitimate aim when it is absolutely necessary and must
proportional
“There must also be adequate safeguards to avoid any abuse of powers,” he said.
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