|SUNDAY SPOTLIGHT: When it's guilty until proven innocent|
|Sunday, 01 July 2012 10:19am|
©The New Straits Times (Used by permission)
By Aniza Damis
DILEMMA: During the last sitting of Parliament, an amendment to the Evidence Act was passed by lawmakers, the implications of which are only now beginning to be understood. Section 114A presumes ownership or responsibility over any print or online medium if the person's name, photograph or pseudonym and claim of ownership appears on the publication; and presumes publication upon the owner, host or custodian of the medium if he publishes, facilitates or re-publishes the contents of the publication. Effectively, this shifts the burden of proof onto the accused person. The amendment has drawn concern, and recently, Rembau member of Parliament Khairy Jamaluddin called for it to be revoked. The MP tells Aniza Damis why he is speaking out against the law he voted in
Question: With the Peaceful Assembly Act 2012, you said you had the dilemma of voting against your conscience. But you also said the gap between the conscience and the party line was...
Answer: Was not so big. And I'd rather vote for it than not, because it's much better than what was before.
Question: What about with the Evidence Act amendment?
Answer: In this case, I had no choice; again, because of the whip (party directive). Personally, I was against it. And my protestations to Datuk Seri Nazri (Aziz) and (Attorney-General) Tan Sri Gani Patail did not take place after the bill was approved; some people say "Ah, you can say that after the fact", but I'd said it before the voting.
Question: So you were aware of it (that the amendment shifted the burden of proof)?
Answer: I was aware. I told the A-G and Datuk Nazri.
Question: Were you the only MP?
Answer: No. Myself and (two other Barisan Nasional MPs). The three of us said we are against this amendment because the burden of proof was shifted towards the accused, and not the accuser, which flies against the face of natural justice.
Question: But this isn't the first Act where the burden of proof is shifted to the accused. For instance, the Dangerous Drugs Act 1952, and Firearms (Increased Penalties) Act 1971.
Answer: Yes, but these are for capital offences.
Question: But, isn't that even worse, because the offence and penalty is even greater?
Answer: No, I would argue to the counter. Even though it is an alleged crime, because of the gravity of the crime, I think it's okay to shift the burden of proof. But this (publication offences) is a much, much smaller offence. So, I think it's unfair to shift the burden.
Question: Does it make sense for you to have voted and therefore observed the whip, and then call for the amendment to be revoked?
Answer: We've done it before. We agreed on the Election Offences amendment, and then it was pulled. So, it's been done before. So, why can't I say, "Yes, I was compelled to vote by the party whip, but my private conscience told me otherwise." There's nothing wrong with me to say that.
Actually, I take back what I said about the more serious offences. The burden of proof cannot be shifted in any case whether it is a serious case or otherwise and the Evidence Act amendment is just another example of that.
Question: If the government does decide to revoke this based on the public's concern on the shifting of the burden of proof -- or as some people call it, "presumption of guilt" -- does that mean that with the Dangerous Drugs Act and the Firearms Act should also be revoked?
Answer: That's a different discussion altogether. But, I would assume a similar principle should hold.
With this one (Evidence Act amendment), in terms of the people involved, there are a lot more people involved and susceptible to the presumption of guilt, because a lot of people use the Internet. With firearms or drugs, it's a small amount of people. So, this is a public interest case that involves a lot of people. Every day. And it involves normal people. Normal people don't have firearms.
Question: So, what can you, as a legislator, do?
Answer: Nothing much. Theoretically, I am speaking after the fact.
Question: The first clause applies to print publication as well.
Answer: All of it. All of it should be revoked.
Question: With previous votes, you had private objections; now you've come out publicly with a public objection. What has been the response that you've had?
Answer: Nobody said anything to me.
Question: Do you think that members of parliament should be given a certain number of occasions, say, three instances, where they can vote according to their conscience, like in the United Kingdom, Australia,
and New Zealand?
Answer: No, I think the present system is okay. But I think because of the rush, and because of the fact that the day that we were briefed, when we were engaged with the A-G and Datuk Nazri on the Evidence Act amendment, there were also a number of important bills we had to deal with. There was an overload; everyone was exhausted.
There doesn't have to be three opportunities for you to vote according to your conscience if, on all legislation, we are allowed enough time to review it, and then to engage with the government; as has happened in the past.
Question: But if the three-lin e whip has been called?
Answer: Then, we assume that a decision has been made and we accept it. But in this case, I choose to speak out because I believe the engagement was not enough, not sufficient.
|< Prev||Next >|