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.

      Delete

Kluang's Little Bangsar

Kluang's Little Bangsar
Click To Visit

Kamini's Indian Wedding - Click To Visit

Kamini's Indian Wedding - Click To Visit
I attended my neighbour's daughter's Indian wedding dinner at the Sentul HGH Convention Centre. Click for a peek

Yasmin Ahmad - Click To Visit

Yasmin Ahmad - Click To Visit
Yasmin Ahmad was arguably Malaysia's best story-teller, filmmaker and advertiser. She was well known for her Petronas commercials and had won numerous international awards including the Golden Lion award for the 'Tan Ming Hong In Love' commercial. Her feature film Sepet not only garnered her several international awards including for Best Asian Film but also drew multi-racial audiences that rarely happens for a local film.

Genting Highlands - Click To Visit

Genting Highlands - Click To Visit
Genting Highlands Is A Popular Retreat With A Casino

Batu Caves - Click To Visit

Batu Caves - Click To Visit
Malaysia's Famous Landmark. Note The Statue Of Lord Muruga And The 272 Steps To The Temple Cave In The Background

Petronas Twin Towers And KLCC Park - Click To Visit

Petronas Twin Towers And KLCC Park - Click To Visit
Petronas Twin Towers Are Still The World's Tallest Twin Towers

Some Early Morning Views Of KL City Skyline - Click To Visit

Some Early Morning Views Of KL City Skyline - Click To Visit
Some early morning views of the KL city sykline I took from the 3rd floor of the KL Court with a low-pixel hand-phone camera

Kluang Town - Click To Visit

Kluang Town - Click To Visit
Kluang was a sleepy hollow, but is fast becoming a bustling town. You can't miss the bust-shaped gunung Lambak lording over the place and the town is well known for its tv brand coffee powder

Kluang RailCoffee

Kluang RailCoffee
The Kluang railway station coffee shop, now re-branded Kluang RailCoffee, is well known for its cuppa of coffee and the charcaol grilled piping hot buns oozing with butter and kaya...It used to attract standing-room only crowds. It still does, but the last time I was there it wasn't a good experience for me. The famous coffee had somewhat lost its oomph and even the buns...The shop has a long and noted history being first opened for business in 1938 and the place is now run by the 3rd generation LIm family. I hope the next time I return, the coffee would regain its oomph. Click to read more...