Lawyers cry foul over ‘guilty until proven innocent’

LAWYERS are crying foul over the recent amendments to the Evidence Act particularly a provision which allows owners of Wi-Fi accounts to be held liable if a derogatory statement is published through their network.

Lawyer Art Harun told The Malay Mail that the provision, provided through the insertion of Section 114A into the Act which was recently bulldozed through both houses of Parliament in its last meeting without debate, is unfair.

He also said the biggest losers following the amendments are coffee shop and restaurant owners who provide free Wi-Fi in their outlets to attract more customers.

“If you are a restaurant owner who provides free Wi-Fi and a person walks into your restaurant and uses the Wi-Fi services to post a comment that is deemed illegal, you would be held responsible for the act. That is unfair.

“If these coffee shop owners were to understand the law better, they would stop providing free Wi-Fi altogether.”

Section 114A, which explains presumption of fact in publication, states 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 republished 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.

Furthermore, it states that any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

Art Harun said the amendments had also shifted the burden of proof from the prosecution to the accused in that the accused has to prove that he is not guilty.

“With the amendments to the Evidence Act, it reverses the burden. For example if someone posted a wrongful comment in my blog, I will have the burden to prove that I am not guilty of it because the presumption under the new law is that I was the maker of the statement.”

Another lawyer Datuk Jahaberdeen Mohamed Yunoos said the amendments to the Evidence Act is bound to be a failure because it appears as if little thought was put into it.

“The amendment goes against the principle of innocent until proven guilty.

…more
Lawyers cry foul over ‘guilty until proven innocent’
July 04, 2012 – Malay Mail

Govt stealthily gazettes Evidence Act amendment

THE Malaysian Government has gone ahead to gazette a controversial amendment to the Evidence Act 1950 despite the objections and concerns of the online community and civil advocates, who have said it would have a chilling effect on freedom of expression.

Section 114A to the Evidence Act was gazetted by de facto Law Minister Mohamed Nazri Abdul Aziz and has been in operation since July 31, according to a notification on the Attorney-General’s Chambers website. (Click here for the PDF documentation).

“The law can be enforced now,” said Masjaliza Hamzah, executive director of Center of Independent Journalism (CIJ) in Malaysia, which has been spearheading efforts to see the legislation revoked.

However, she noted that even if a law has been gazetted, it may be impossible to enforce it if those who are responsible for it are not trained and are not ready to implement it. “This was the case with the Domestic Violence Act which was passed and gazetted in 1994, but was not implemented until 1996 after women’s groups campaigned to put pressure for that to happen,” she added.

Law Minister Nazri gazetted the law despite his own deputy Datuk V.K. Liew conceding in June that more discussions were needed after the CIJ had handed him a petition with more than 3,000 signatures.

“Sometimes, laws can be gazetted quietly — unnoticed, you could argue it’s almost by stealth — and we only know they exist when they are implemented,” Masjaliza told Digital News Asia by email.

“Many people in Selangor and Federal Territory did not know that Muslim women cannot contest in beauty pageants under the Syariah Criminal Offences (SCO) laws until five young women were arrested for taking part in a Miss Petite contest.

“The fatwa banning this was gazetted and therefore can be enforced under the law and these women were arrested for breaching a fatwa. It was only at that point that people heard that there was the SCO Enactment in Selangor and the SCO Act in the Federal Territory, and that they apply to Muslims in those states,” she added.

Section 114A, otherwise known as Evidence (Amendment) (No. 2) Act 2012, was passed by the Dewan Rakyat and Dewan Negara in April.

Under Section 114A, an Internet user is deemed the publisher of any online content unless proven otherwise. It also makes individuals and those who administer, operate or provide spaces for online community forums, blogging and hosting services, liable for content published through their services.

“This presumption of guilt goes against a fundamental principle of justice – innocent until proven guilty — and disproportionately burdens the average person who may not have the resources to defend himself in court,” the CIJ has said.

“The amendment’s wide reach will affect all Internet users, websites which provide space for online comments, and any business premises which give free Wi-Fi access to their customers.

“In addition, the new amendment was passed despite the fact that existing laws — including the Computer Crimes Act 1997, Sedition Act 1948, Defamation Act 1957, and Section 233 of the Communications and Multimedia Act 1998 — have been used to arrest and charge in court those who commit defamation, criminal defamation, fraud and sedition online,” it said.

…more
Govt stealthily gazettes Evidence Act amendment, law is now in operation
A. Asohan
Aug 08, 2012 – digitalnewsasia.com

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