More on Section 114A of the Evidence Act 1950

Latest Development

Datuk Seri Dr Rais Yatim, Minister of Information, Communications and Culture said that the Cabinet decided to maintain amendment on Evidence Act 1950.

According to Datuk Seri Nazri Aziz, Minister in the Prime Minister’s Department stated that Section 114A of the Evidence Act 1950 can only be invoked if a person is charged under other laws and the court is convinced to use it to shift the burden of proof to the accused. He further stated that this section is a procedure and alleged wrongdoers cannot be charged under the section. He also explained that the reason for the Cabinet to maintain the amendment is because there are more serious things like acts of terrorism, which will require it to protect the security of the country. He will hesitate if the amendment doesn’t serve the security of the country. Prof Datuk Husin Jazri, President of the Information Security Professional Association of Malaysia (ISPA) stated that the amendment on Evidence Act 1950 will help the law enforcers especially for the cases that are cross-border in nature which limits the law enforcers’ ability to look for the required evidence.

On the other hand, SUHAKAM has urged the government to review, amend or repeal the Section 114A Evidence(Amendment)(No. 2) Act 2012 because it is against the fundamental principal of law that is a person is considered innocent until proven guilty. Besides that, SUHAKAM chairman Tan Sri Hasmy Agam has stated that this section is violating Article 19 of Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) – freedom of expression.

From A Legal Viewpoint
Under this new amendment, the law presumes that the owner is guilty for the publication and ownership unless proven innocent. This new amendment has clearly shown that the burden of proof has shift to the accused and no longer lies on the Public Prosecutor. This will be burdensome to the accused as the accused might facing the technicality problem to prove himself is innocent. If the accused is unable to prove himself is innocent, the accused will be guilty for the publication and ownership even though the accused didn’t do it. Since the burden of proof has been shift to the accused, what is the duty of the Public Prosecutor in that case? How can they prosecute someone by presumption of fact? Even though the Section 114A Evidence(Amendment)(No. 2) Act 2012  is rebuttable, but what happens if the accused is unable to prove himself to be innocent, he will be guilty for the act that is committed by another person. This is unfair to the accused as he has not done anything wrong and held guilty for other people’s act.

This amendment will create troubles for the public. Everybody is using the Internet daily and with this new amendment, the public has to change the password for the network service and also social network site frequently to avoid being misuse by other people. Besides that, the café or restaurant that used to provide free wifi service may no longer provide the free wifi service to their customer. This will indirectly affect the business of the restaurant or café.
If we were to look at this issue from another point of view, the amendment is making the law enforcer’s life easier as there is presumption of fact that the accused is guilty. The law enforcers do not have to spend their time in finding evidence. In addition, they don’t face any difficulties in finding the evidence. This is because they just have to prosecute the owner of the network service or the user for the social network site.

Despite the critics from the public as regards to the new amendment, the government has decided to retain the amendment. The public has protested against the amendment by joining Internet Blackout Day on 14 August 2012 that is coordinated by the Centre Independent Journalism and also putting up pop ups and black banners.

By: The Lee & Chong Team