The Malaysian Bar - Groups happy with AG's assurance but concerned about limitations

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Groups happy with AG's assurance but concerned about limitations

Friday, 21 September 2012 08:30am

©Malay Mail (Used by permission)
by Meena Lakshana

WATCHDOGS are still concerned with Section 114A of the Evidence Act 1950, saying prosecution details provided by Attorney-General Tan Sri Abdul Gani Patail have their limitations.

Bar Council president Lim Chee Wee said yesterday that the details and assurance provided by Abdul Gani go 'some way' to allay fears of the legislation's possible abuse.

However, the fact remains that the law provides an advantage to the prosecution because the defendant will still have to prove his innocence, he added.

"Section 114A applies in criminal and civil proceedings to give rise to three different presumptions of fact regarding name, photograph or pseudonym, subscriber of a network service and control or custody of a computer, giving rise to a presumption of publication,' he said in an email to The Malay Mail.

"This presumption assists the prosecution with proof of one of the elements of an offence.

"This section, if abused, can have an enormous negative effect on the use of the Internet and freedom of speech, encouraging more anonymous postings instead of discouraging it (with cybercrime and Internet anonymity being the reason for the enacted section),' he added.

Lim said the Bar Council and Suhakam had given their recommendations on further safeguards in their meeting with Abdul Gani.

On Tuesday, Abdul Gani had attempted to assuage fears of the legislation's abuse by assuring no arbitrary charges can be made against individuals.

He had also provided details of the prosecution's duties before a charge under the section could be leveled against an individuals.

He said deputy public prosecutors must secure:

* strong oral evidence from witnesses,

* records from computer logs indicating the accused had signed in the online account when the offending posts were made,

* online transactions such as banking records,

* documents linking the accused to his or her computer,

* footage from a closed-circuit television camera showing the deed, and

* that the accused is the owner of the computer who has sole access to it.

Centre for Independent Journalism Malaysia executive officer Masjaliza Hamzah said the gathering of evidence is still in the hands of the prosecution and the onus would be on the accused to prove he or she is not the publisher of the defamatory article.

"If it is shown that the article comes from your network or WiFi account, you are the publisher," she said.

"What defense do you have?"

"The fact the AG has to come up with guidelines for prosecution after the amendment was passed in Parliament just shows there is something wrong with the legislation," she added.

Section 114A is a recent amendment made to the Evidence Act. It was passed in Parliament in April and gazetted on July 31.

It stipulates that a "person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved".

It also states that a "person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved".

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