Monday, August 20, 2012

Is The Fact That The Presumption Under S114A Evidence Act Merely A Presumption Of Fact, Any Cold Comfort?

This is not a legal discourse on the controversial amendment to section 114 of the Evidence 1950. It is a layman's view on the matter.

Section 114A makes a person liable for publishing any seditious, defamatory or libelous content online if it is traced back to one's username, electronic device and/or WiFi network.

This has obviously made many Malaysians uneasy and unhappy.

So, following the many expressions of support for the Internet Blackout Day on August 14 that was initiated by the Centre for Independent Journalism [CIJ] to protest against s114A, an MCA senator and Khairy Jamaluddin himself came out, in a move many perceive to be just wayang (a farcical motion, for where were they when the amendment was being passed in Parliament?) to call for a review of the controversial amendment.

Even Pm Najib himself then tweeted that the government would review the amendment and had asked the cabinet to look into the matter.

So when Information, Communications and Culture minister Rais Yatim came out to say that the cabinet (that met in the absence of Pm Najib who was then attending the OIC extraordinary summit in Mecca) has decided to retain s114A and that presumption of fact was not new in law. is it any cold comfort to concerned citizens?

What does the presumption of fact here mean? It simply means that if a person is unable to prove that an allegedly offending article is not somebody else's, than he is presumed to be the author. But this does NOT yet mean that he is guilty. The prosecution will still have to prove that the allegedly offensive article is a seditious, defamatory or libelous one.

But if the article is an obviously seditious, defamatory or libelous one, what cold comfort would it be to him or her that the presumption raised here is a presumption of fact and not one of guilt?

The question that needs be asked is why is the Najib administration trying to shift the burden of proving facts that are NOT beyond that of the state to prove and which are NOT within the knowledge of the accused?

Is the government trying to stifle freedom of expression in the cyberspace and to cow Malaysians and so prevent them from exposing corruption, abuse of power and other shenanigans on the part of the administration?

2 comments:

  1. then from a legal point of view, your opinion is terribly wrong, coz a person will not be liable for publishing any seditious, defamatory or libelous content online if it is traced back to one's username, electronic device and/or WiFi network under section 114a.

    the nature of 114a is fundamentally different from what we may get from your opinion because that wasnt that case at all . EVEN IN A LAYMAN's point of view

    ReplyDelete
    Replies
    1. sergeant_Roy. I think you misread and misunderstood what I wrote. s114A puts an ONEROUS BURDEN on the poor defendant to prove that he/she is not the the author of an offending article when that should be the job of the prosecution who has all the resources available to them vis-a-vis an ordinary fellow like you and I. Once an article is shown to be seditious, defamatory or libelous the poor defendant is finished if he/she is UNABLE to prove the the offending article was not posted by him/her and that it was in fact somebody else who had posted it! I appreciate your passing by and commenting. Thanks.

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