— CPI
The Malaysian Insider
May 29, 2012

MAY 29 — The Evidence (Amendment) (No. 2) Act 2012 will come into operation in a few days on June 1. The impact of this hastily and stealthily rushed legislation could be devastating.

De facto law minister Nazri Abdul Aziz denies that amendments to the Evidence Act were a means for the government to curb online dissent by making Internet anonymity more difficult to maintain or ignorance to be used as an excuse.

Instead Nazri claims that the law was tightened because “we don’t want [anonymous or pseudonymous] people to slander or threaten others,” according to a report in the Sunday Star.

However opposition leaders such as DAP secretary-general Lim Guan Eng are unconvinced.

Lim said that the amendments, which were passed during the last sitting of the Dewan Rakyat and the Dewan Negara, “will make it easier for the government to launch selective prosecutions of members of the opposition and civil society”.

According to him, a person is traditionally presumed innocent until proven guilty but the Evidence Act 2012 reverses this truism. Lim illustrates with a personal example: “In other words, I am responsible for anything posted on my website and the burden is on me to prove my innocence, not on the prosecution to prove my guilt.”

Lim also believes that the BN government would practise double standards in exercising the provisions of this legislation.

His misgivings are not entirely without basis, bearing in mind the several occasions when Malaysian authorities have been accused of filtering politically sensitive sites and most recently interfering in the Astro rebroadcast of BBC and Al-Jazeera’s live coverage of the Bersih 3.0 rally.

Nazri’s statement, “Under the amended Act, we shift the burden to the owner of the laptop or account so that we can get to the source [of the slanderous or seditious comments]”, prompted the Malaysian Bar to also express concern with regard to the presumption of guilt contained in the Act.

Internet Society Malaysian Chapter chairman Julian Vincent has pointed out that the amendments could be open to abuse by the investigators.

“In the Internet environment where the websites even of the largest organisations are susceptible to hacking and manipulation, it is dangerous to have this presumption [of guilt] in place.

“The society expresses its hope that the Cabinet will revise the current text and work to address privacy considerations and protect citizens’ rights and civil liberties in any future cyber security legislation,” he said.

Internet users across the board have criticised the amendments as unfair, concurring with the expert views that websites and social networking accounts (Facebook, Myspace, etc) or even e-mail could be easily hacked to post defamatory comments.

Despite the assurances by Nazri, an outspoken minister in the Prime Minister’s Department, the Netizens active on chat forums — as well as those who frequently forward chain mail and are addicted to Facebook or Twitter — harbour deep reservations about this newly revised law.

As it is, bloggers, such as Mohd Nur Hanief Abdul Jalil and Chan Lilian (Lim Guan Eng’s aide), have not been spared investigation by state officers for lese majeste and sedition respectively.

The public unease plays against the backdrop of reader participation in the relatively more free-wheeling news portals as compared with traditional media which has been subjected to pervasive state control.

Centre for Independent Journalism executive officer Masjaliza Hamzah has termed the amendments as a threat to freedom of expression and media freedom.

“The amendments are clearly an indirect way to control online content as it makes online sites responsible for comments posted by readers; forget about disclaimers on the comment section.

“This may force some sites to stop the comment feature because having to vet comments themselves may become untenable, and if this happens, it has a huge impact on the interactive nature of online media favoured by readers,” she is reported to have said.

Furthermore, Malaysia suffers the ignominy of appearing on the list of countries under surveillance as Enemies of the Internet, i.e. where authoritarian governments have employed censorship or filtering circumvention methods as well as systematic repression of Internet users.

The international watchdog body, Reporters Without Borders, had rated Myanmar, China, Iran, North Korea, Saudi Arabia and seven other countries as Enemies of the Internet in its RSF 2012 report.

The bottomline is that any repressive piece of legislation which can be misused by the powers-that-be to prohibit or curtail legitimate freedom of expression by its opponents is, in essence, a bad law.

Should ever Pakatan Rakyat successfully occupy Putrajaya, they could just as easily turn the tables on Barisan Nasional politicians and supporters by abusing this same law.

A lawyer-cum-blogger-cum-Tweeter, Foong Cheng Leong, dissects the presumption of fact relating to criminally libellous or seditious publication, explaining why repercussions for Internet users are indeed grave.

On the controversy surrounding the Act, Foong writes:

“In summary, the new amendments force an innocent party to show that he is not the publisher. Victims of stolen identity or hacking would have a lot more problems to fix. Since computers can be easily manipulated and identity theft is quite rampant, it is dangerous to put the onus on Internet users. An Internet user will need to give an alibi that it wasn’t him. He needs to prove that he has no access to the computer at that time of publication and he needs to produce call witnesses to support his alibi.”

His article can be read in full at the Loyar Burok website.

Finally, it is necessary to ask the Prime Minister Najib Razak the question as to why he has reneged on his word. Only last year he had repeated the Mahathir era promise made when Cyberjaya and the Multimedia Super Corridor were launched — that Malaysia will never censor the Internet.