|SUNDAY SPOTLIGHT: 'It makes the job of the prosecution easier'|
|Sunday, 01 July 2012 10:27am|
©The New Straits Times (Used by permission)
By Tan Choe Choe
Tan Choe Choe finds out from constitutional lawyer Syahredzan Johan what the amendment to the Evidence Act means
Question: How do you feel about this amendment?
Answer: All trials are now affected by this Evidence Act amendment. Why this amendment got through Parliament is because it was packaged together with the Security Offences (Special Measures) Bill (Sosma), the one new legislation that was introduced with three amendments to current laws; first is the Penal Code, then the Criminal Procedure Code, and third is the Evidence Act.
So, when packaged together, the assumption is that these amendments relate only to terrorism and security offences. But if you look at the fine print of the amendment bill, it actually concerns all types of trials because the Evidence Act doesn't just govern criminal trials, but also civil. So, it is not just concerning security offences, it's far wider than that.
Question: Under the law, it's usually you're innocent until proven guilty. Would this now mean that you're guilty until proven innocent?
Answer: Before this, the general rule is the party that asserts a fact must prove that fact. If I say that you have posted something seditious, I have to prove it. I have to prove that on such and such a date, a seditious statement was posted on Facebook (for example), I have to show that that comment has a seditious element, and I have to show that that comment came from this particular computer and at that computer you were actually posting at the time.
That was what I had to prove as a prosecutor. But now, with this amendment, if I have a WiFi network and there was a seditious posting on it, it is now a presumption that I am the one who actually posted it. All the prosecution needs to prove is that this posting came from this network and I subscribe to this network. It makes the job of the prosecution easier -- that's the main impact of this bill.
Question: So, it's just that if I trace it back to you, you are presumed the culprit?
Answer: Yes. Similarly, if I take your iPad and type something, the presumption is that you are the one who did it. Similarly, on Facebook, if something comes up under your account, you are presumed to have done it. So, you have to disprove it, like "my account has been hacked", "I wasn't there" or "I left it at the repair shop". There are basically 3 presumptions that have been created by the amendment and we can summarise them as such in layman's terms:
If there is a publication, regardless of online or offline, and it says that I am, for example, the author of that publication, it is a presumption that I am the author. Similarly, if it says I am the publisher, then it is a presumption that I am the publisher.
If there is a publication that came from a particular network and that network is traced back as belonging to me, then it is a presumption that I am the one who published that publication. Say if there is a comment on Facebook, sent through network of service provider A, which is subscribed by B, then B is presumed to have published it.
When there is a publication and that publication can be traced to computer A and computer A belongs to person B, then it is presumed that person B published it. So, if there is a defamatory tweet and somehow the tweet was found to have been sent from an iPad belonging to me, then it is presumed that I sent that tweet.
Question: If this amendment comes into force, how do you think it will impact Malaysians? Are we aware of the repercussions, to begin with?
Answer: No, not enough awareness. It's also because this issue is a rather technical one. I think that in order to safeguard ourselves now, we would really have to look at security measures. Meaning, companies would probably have to make sure they have put in place very comprehensive security measures to check their employees' use of the company computers and network. Because it's the same thing, if it's the company who owns the network, the presumption is that the company is the one who posted it.
Question: What about free WiFis in cafes and eateries?
Answer: They would have to bear all the consequences. But would they know? Would they realise? If I go to these networks and I posted something seditious, it goes back to them. And what about places where they actually provide the computers (such as cybercafes)? They would have to put disclaimers... all these things, there will be changes.
Question: If I buy a cheap 3G phone, hack into someone's network, post something defamatory, then throw away the device, you can't trace it back to me.
Answer: Of course I would want to get you, but through my investigations, I found out that it came out from account C, I sue C. I wouldn't know who you are, so C will have to fight my suit and say that he's innocent.
Question: It's so easy then if I want to frame someone.
Answer: Well, it is. Of course people can always say that you can always disprove (the allegation), but it's not easy to disprove.
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