— Michael Yap (loyarburok.com)
The Malaysian Insider
Aug 25, 2012

AUG 25 — I must admit that when the Evidence (Amendment) (No. 2) Act 2012 was given royal assent, it infuriated me so much that our new laws of Malaysia are nothing better than what we have had for the past 50 years. When every statute book of ours is filled with laws that are draconian, that respect no rule of law, that are harsh and cruel in punishment; and that work unfairly against the individual, the 2012 Act is certainly outrageous to the extent that no right-thinking Malaysian would ever believe what the law minister has professed to be the “legitimate aim” of the Act.

I too joined the Internet blackout day on August 14, and appreciated the fact that I was not alone, for thousands and millions of my peers echoed the same concerns on that very same day. It was — to me and to all Malaysians — a successful step in our battle against section 114A! It was truly momentous to see a united front in our cyberspace at that point.

However, having said that, it is alarming to see that not every Malaysian who opposed (and supported) section 114A are getting their facts (and contents) right. It is meaningless to see section 114A being repealed (or upheld) when the masses do not really understand what they are opposing (or supporting). Developments since August 14 have been vibrant as there are many more statements on the section being made by various stakeholders, plus increasing media reports over the subject matter, and not to mention the volume of comments on Facebook and Twitter.

I might not be well informed either on the issue of how many Malaysians truly understand the nature of section 114A and why we oppose it; there is neither empirical evidence nor statistics to reflect that. Perhaps those misinformed are just a minority or maybe I have inadvertently exaggerated such a phenomenon. But these are some of the errors that “might” be perceived amongst fellow Malaysians:

Firstly, section 114A is a provision in the Evidence Act 1950, not a provision in the Evidence (Amendment) (No. 2) Act 2012 (which merely inserted a new section 114A into the Evidence Act 1950), and there is no such thing as the Evidence Act 2012! I noticed these errors in one of our local papers (which I wouldn’t name), and this is disgraceful as it shows how our media can fail to accurately report a matter. Some might wonder — why so fussy about the short title of a piece of legislation? Well, to me, if one cannot name properly the subject of its opposition, what is the point of opposing? Such logic occurs every day in our courts, where defendants must be named properly or be denied a valid claim.

Secondly, although I don’t find our law minister to be favourable by any means, I do admit that what he said was true to some extent. Section 114A is merely a presumption of fact, not a “direct” presumption of guilt. Notwithstanding that presumption, the prosecution in a criminal case or a claimant in a civil case would still need to prove the other elements of the offence/claim. For example, if D is charged under section 4 (1) (b) of the Sedition Act 1948 of uttering a seditious statement found in an article signed by D, section 114A only presumes D made that statement (unless D proves to the contrary), not guilty of sedition. The prosecutor would still need to show that those words are “seditious” before D can be guilty of a “constituted” crime. If the prosecutor fails to show that those words are “seditious”, even if D has failed to show that he is not responsible for those words, he still walks free out of the courtroom.

The reason we oppose section 114A is because it derogates (or degrades) our presumption of innocence, in the sense that individuals are burdened by the law to establish something that should be within the province of prosecutors. It is not wrong in principle for such a shifting of burdens, which is present and acceptable in many legal systems; but what is wrong is that there should be no such shifting without a prior pressing need or strong justification for such. In my article to LoyarBurok, “The Implicit Message of s. 114A of Evidence Act 1950 to All Malaysians”, I wrote:

“Relating this back to section 114A, my question is what is the strong justification here? I would agree that most of us might have differing views of what is ‘pressingly needed’ in this country, but I am reserved in finding that it must be something to do with internet hacking.”

Now the question to the law minister is not the objectives of this Act, for we certainly know it’s either to tackle cyber-crimes (which is equivalent to “protecting the public”) or to suppress opposition. The question should be: “is there such a pressing need?” This is similar to what happens now in the UK as well; nobody denies the needs and virtues of reforming the elected upper chamber — the House of Lords — but the question is simply this (and it has been answered): is there such a pressing need for the time being? (Especially when the UK economy is at an all-time low, and many other legislative agendas should be prioritised.)

Thirdly, in the Umno Youth case, the law minister contends that section 114A doesn’t apply if the accused makes a police report as soon as possible. Though I can accept his point by saying (which I believe is what he truly means) the fact that the accused has lodged a police report as soon as possible “tends” to show that he is not responsible for the publication of those statements (thus making him/her probably innocent). However, it puzzles me as to why in the first place an innocent citizen — as presumed in law — need be burdened into showing their innocence, as in this case — unnecessarily lodging a police report when knowing themselves to be innocent?

Now let us make a comparison between the individual, who needs to lodge a police report whenever there is a seditious and defamatory statement appearing in their Facebook, and the state (with the help of numerous law enforcement agencies including the police force, the A-G’s Chamber, the Telecommunication and Multimedia Commission, etc.), who is supposed to investigate the alleged culprits who made those statements. Who is much more burdened in this sense? The individuals who normally would not trouble themselves to visit the police station or the state who is mandated in the investigation and enforcement of the law? To put it in another way, who has more means, both in terms of technology, manpower and resources to find the identity of the hacker who incriminates innocent individuals? The state admits that they need to shift the burden to individuals because “the cross-border nature of the Internet limits the law enforcers’ ability to look for the required evidence, especially when the accounts or publications or activities are overseas and beyond Malaysian jurisdiction”. My question is simple: if the authorities find it difficult, does the individual find it easier?

Fourthly, the police have stated that they will not probe seditious postings under section 114A. But in relation to the Umno Youth case, they would instead investigate it under section 233 of the Communications and Multimedia Act. This is however contradictory to what the law minister has described about the new provision: “the amendment is only a form of procedure” and is not an offence. Whatever our distaste may be to the new provision, we must admit that it is now law and has legal authority, and that it is not for the police to say whether they would apply or not. Until Parliament has repealed the provision, the police while investigating the Umno Youth Facebook post must still, by virtue of section 114A, presume that those statements are from Umno Youth until they have proved to the contrary in a court of law. The police have no authority to be above the law and the law minister should not have said that those who oppose the law do not understand it, upon failure to remind the police authorities that it is now in force.

Finally I can’t agree with what one minister has said in defending the provision: “Once it is officially passed, to do something now is an afterthought.” If that truly is a justification for the Act, then surely it is an “afterthought” to bring in the 1988 amendments to the Federal Constitution. Also, he should have advised against his boss in amending/repealing both section 27 of the Police Act 1967 and the Internal Security Act 1960, by telling him those Acts of Parliament are officially passed, and it would be an afterthought to amend/repeal them. Laws do change all the time to reflect new societal conditions, and errors made in draftsmanship must be rectified, just as any government policy, enterprise direction, construction project or even our homework. Sadly, it does not correct those recurring mistakes inherent in our law enforcement and judicial system and our citizen’s maturity over public affairs, up to this day.

It is perhaps right to oppose 114A, but before being enthusiastic and energetic in fighting ahead, there is no harm in stopping to think and reflect on what we and others have said about it. A better understanding of your “enemy” puts you in a better position. Since the government has made remarks of reviewing the provision, it may be wise for all Malaysians sharing the same view on abolishing the section to settle down and analyse the common mistakes we have always made and what logical fallacies that those who yield power have always claimed. — loyarburok.com