Section 114A: ‘No abuse’ pledge is nonsense

September 05, 2012

By Gobind Singh Deo

SEPT 5 — The government has pledged not to abuse Section 114A of the Evidence Act in the hope that this would soothe criticisms made against it of late.

It is somewhat strange but, ordinarily, such a pledge is unnecessary. All laws are not to be abused. That would be illegal. There is no need for the government to say it. That is the law.

Datuk Seri Nazri Aziz is also in no position to make such a pledge. He has no role to play in the investigative process leading to criminal prosecutions. Neither does he have a say in how cases are to be prosecuted. Neither does the government.

So, how do they enforce such a pledge?

The culture of passing laws that are accepted as capable of being abused and followed by pledges of non abuse makes a mockery of Parliament and the legislative process. It cannot and must not be condoned.

History has shown that laws have been enacted in Malaysia with such assurances only to be abused later.

A search on Wikipedia reveals the following of and concerning the Internal Security Act (ISA).

“The stated purpose of the ISA was to deter communist activity in Malaysia during the Malayan Emergency and afterwards. The first Prime Minister of Malaysia, Tunku Abdul Rahman, defined the purpose of the act as to ‘be used solely against the communists. My colleagues and I gave a solemn promise to Parliament and the nation that the immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silence lawful dissent’. The third Prime Minister, Tun Hussein Onn, stated at the same time that his administration had enforced the act only with a view to curbing communist activity, and not to repress ‘lawful political opposition and democratic citizen activity’.”

It is common knowledge that the ISA was used over and above what it was intended for. It was abused. And this became the basis for which it was later repealed.

It is appalling to note that despite our having learnt that such pledges and promises have in the past proven futile, we still find the government of day, in desperation, making them.

The fact that such an assurance has to be given indicates an acknowledgment that the section is open to abuse.

This is enough for the government to bring the matter back to Parliament so as to put matters right.

This is a matter that Parliament — and not anybody else — should decide.

* Gobind Singh Deo is the member of parliament for Puchong

Source: http://www.themalaysianinsider.com/sideviews/article/section-114a-no-abuse-pledge-is-nonsense-gobind-singh-deo/

Umno Youth fanpage apologises for provocative Facebook post

By Lisa J. Ariffin

August 26, 2012

A screen capture of the posting before it was taken down last Saturday evening.

KUALA LUMPUR, Aug 26 — Administrators of an Umno Youth fanpage today apologised for its controversial posting on Facebook earlier this month, suggesting that a vote for Pakatan Rakyat (PR) will result in Christianity becoming the country’s official religion.

The fanpage on the popular social networking site had featured a poster that had read: “Jika anda setuju untuk jadikan KRISTIAN sebagai agama rasmi persekutuan Malaysia, teruskan sokongan anda kepada Pakatan Rakyat. God bless you my son.”

[Translation: If you agree to make CHRISTIANITY the official religion of the federation of Malaysia, continue supporting Pakatan Rakyat. God bless you my son.]

“Kami minta maaf secara terbuka kepada semua rakyat atas kesilapan mengeluarkan gambar yang tidak patut pada 17/18 Aug 2012. Admin itu sudah dikeluarkan dari fanpage,” the page’s administrators wrote in a posting late last night, just hours after Umno Youth chief Khairy Jamaluddin told the media that he was closing in on the culprit behind the poster.

[Translation: We publicly apologise to all Malaysians over our mistake in publishing inappropriate content on August 17/18. The admin involved has been removed from the fanpage.]

The post, however, was met with mockery from netizens, who saw the apology as a contradiction to Khairy’s statement last week that the wing did not have an official Facebook page.

Khairy had even lodged a police report, claiming that the person who put up the poster with the controversial remarks was “unauthorised” to do so and that the page was not the youth wing’s official Facebook page.

“Khairy cakap akaun palsu... Rupanya akaun betul la nih. Siap buat report polis bagai akaun palsu. Senang-senang je nak bodoh-bodohkan kami ye... Siapa admin yg kena remove tuh?? Cepat dedahkan siapa... Memburukan imej Pemuda Umno...,” Nur Miba commented on the post.

[Translation: Khairy said this is a false account... When in actual fact it is a real account. He even made a police report as though it was a fake account. Think it’s so easy to fool us... Who is the admin who was removed? Reveal him immediately... This tarnishes the image of Umno Youth...]

“Hampeh betul la korang ni. Monyusahkan… tak mengaku, lepas tu mengaku. Bangang,” said Shauqie Kharip.

[Translation: You are all so unreliable. Troublesome... Don’t admit it, then admit it. Stupid.]

If Umno Youth is brought to court over the “unauthorised” Facebook post, it would be a test case for the newly enforced Section 114A of the Evidence Act that has already seen widespread opposition from the public.

Section 114A makes even coffee shops offering a free Wi-Fi service liable for any defamatory or criminal acts of customers using computers on their premises.

The new law creates a presumption that any registered user of network services is presumed to be the publisher of a publication sent from a computer linked to that network service, if he cannot show otherwise.

The Section also provides that any “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.”

The controversial Facebook post had appeared to suggest that a vote for Pakatan Rakyat (PR) will catapult Christianity into Islam’s unquestioned position as Malaysia’s dominant religion, showing that faith is still being used to scare off the crucial Malay-Muslim vote in the run-up to national polls.

The picture is a reminder of Malay daily Utusan Malaysia, which last year placed on its front page an unsubstantiated report suggesting that the DAP was conspiring with the Church to install a Christian as prime minister and create a Christian Malaysian state.

It triggered an uproar on the popular social network with some cyber citizens, supporting the statement and others condemning Umno Youth for attempting to fan emotions and religious sentiments between Christians and Muslims on the eve of Aidilfitri, one of the biggest holidays in multicultural Malaysia’s calendar.

PR opposition leaders have also slammed Umno Youth for the incendiary message and demanded that party president and Prime Minister Datuk Seri Najib Razak take action to rein in the wing.

The provocative posting was taken down about 6.30pm last Saturday, after drawing nearly 300 comments on the Facebook page.

Source: http://www.themalaysianinsider.com/malaysia/article/umno-youth-fanpage-apologises-for-provocative-facebook-post/

Review 114A, rights group demands

By Lisa J. Ariffin

August 26, 2012

KUALA LUMPUR, Aug 26 — The Human Rights Commission of Malaysia (Suhakam) today urged Putrajaya to review or even repeal the new law that threatens to curb freedom of expression on the Internet as it violates basic human rights principles. 

Suhakam said today the controversial section 114A of the Evidence Act 1950 violates the human rights principles of freedom of expression as enshrined in Article 19 of both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). 

The commission added that the newly-introduced provision, which came into force on 31 July 2012, also goes against a fundamental principle of law that a person is considered innocent until proven guilty as provided for under Article 11(1) of the UDHR. 

“While the presumption of fact under the Section 114A is rebuttable, a person against whom the presumption is applied may lack the time, resources and more importantly, technical expertise in relation to the Internet environment, to prove the contrary in order to rebut the presumption,” the commission said today in a press statement. “In contrast, the prosecution, in criminal cases, may be better equipped to prove the guilt of the accused, as they are authorised to compel any of the potential witness to produce evidence, and has the technical expertise and resources to assist its investigation or prosecution,” it added. 

The commission pointed out the new law may also discourage expression, dissemination and sharing of ideas, news and information, “thus limiting and impinging on the freedom of expression — an essential attribute of a full- functional democracy”. 

It also detailed conditions of how any power or measure on the limitation of rights must be subjected according to human rights norms: 

i. That the limitation of rights of an individual must be imposed solely for the purpose of protecting a legitimate aim (i.e. national security, rights or reputation of others, public health or morals) that is prescribed by international human rights principles; 

ii. That the limitation of rights must be absolutely necessary for the protection of the legitimate aim;

iii. That the limitation of rights must be proportional to the protection of the legitimate aim. It must be remembered, however, that, there are some rights and freedoms that cannot be limited and they include the freedom from torture or other cruel, inhuman or degrading treatment or punishment; and

iv. That there must be adequate safeguards so as to avoid any abuse of powers. These conditions are important to strike a fair balance between public interests — legitimate national security concerns, on the one hand, and fundamental freedoms of an individual, on the other. 

Suhakam reiterated that although national security is paramount to ensure peace and stability, Section 114A of the Evidence Act must be reviewed or repealed to protect and respect fundamental liberties and human rights to freedom of expression and the presumption of innocence until proven guilty. 

“The Commission looks forward to engaging with the Attorney General’s Chambers and other stakeholders in the review of the Act, as well as in the drafting of any new law to ensure that they are consistent with universally accepted human rights principles,” it said. Review 114A, rights group demands accepted human rights principles,” it said.

Source: http://www.themalaysianinsider.com/malaysia/article/review-114a-rights-group-demands/

BN must take full responsibility for Evidence Act amendment

By Gobind Singh Deo

August 15, 2012

AUG 15 ― Barisan Nasional must accept and acknowledge that the amendments to Section 114A of the Evidence Act were a mistake.

The prime minister has in a tweet said he has asked the Cabinet to discuss Section 114A. He said, “whatever we do, the people must come first”.

With respect to the prime minister, whilst the voice of the people plays a significant role in the matter and must be given due regard and respect, he should also reflect upon why and how it is, if the people came first, his government allowed this law to be passed in the first place.

The Bill was debated in Parliament and it was none other than Datuk Seri Nazri Aziz who responded to concerns raised by members of parliament.

Datuk Seri Nazri Aziz is himself a lawyer. He is said to be the de facto law minister.

The concerns over reversal of burden were put by me and other MP’s squarely to him during the debate. He was made well aware of the problem but chose to do nothing about it.

As BN parliamentary whip, he could have stopped it, but as in the case of all other Bills, it was pushed through.

And now when there is public outrage, we see BN MP’s, including the PM, joining in the call for reviews. This is good but, really, and with the greatest of respect to them, it makes a complete mockery of Parliament.

What we see is a failure on part of BN to understand and properly acknowledge issues when debating bills in Parliament, a failure on part of BN to respect and take seriously the views and concerns of  members of parliament.

Perhaps we ought to reconsider pushing through Bills in the middle of the night, stopping the clock, and relying on the might of Parliamentary majority to pass anything tabled, whatsoever it is.

The Attorney-General should advise the Cabinet properly this time.

The rationale behind presumptions ought to be re-evaluated.

It is where the facts that need proof are within the knowledge of the accused and beyond that of the state that presumptions are applied.

So where the information is within the personal knowledge of the accused, the presumption will be invoked and it would be upon the accused to provide proof of facts showing he is not guilty of the offence.

This is what we call the reversal of burden as the burden of proof is ordinarily on the part of the prosecution in criminal prosecutions.

The state has all the resources and information required to prove those matters sought to be presumed under Section 114A. As such, Section 114A loses its purpose. There is really, therefore, no need to depart from the norm here. There is no need for a reversal of burden.

Its existence, on the other hand, opens very many innocent persons to prosecution.

It is, to my mind, unfair and unnecessary and must therefore be repealed as soon as possible.

* Gobind Singh Deo is the member of parliament for Puchong

Source: http://www.themalaysianinsider.com/sideviews/article/bn-must-take-full-responsibility-for-evidence-act-amendment-gobind-singh-deo/

Evidence law review reflects PM, parliament’s weaknesses

By Hafidz Baharom

August 15, 2012

KUALA LUMPUR, Aug 15 —  Datuk Seri Najib Tun Razak's decision to review a controversial amendment that could curb freedom of expression on the Internet shows his and the parliamentary system's weakness in deliberating laws, Pakatan Rakyat (PR) said today.

PR secretariat members Nurul Izzah Anwar, Liew Chin Tong and Dr Hatta Ramli also mocked the decision to review the amendment to Section 114A of Evidence Act 1950 after a number of organisations and people in Malaysian cyberspace  dimmed their websites to protest the law.

"The decision to review the law showed the Prime Minister's weakness since he only announced it after the blackout was over," said Nurul Izzah, who is also PKR vice-president and Lembah Pantai MP in a press conference today.

She was referring to the Centre for Independent Journalism's (CIJ) Internet Blackout Day event yesterday protesting the amendment which gained support of politicians, popular websites and online personalities alike.

Izzah said PKR has always fought for reform in the parliament system so that laws would go through a specialised committee before being debated.

PAS treasurer Dr Hatta said the Prime Minister's "flip-flopping" action was due to a rush to approve legislation which showed that the government's efforts brash and insincere.

DAP lawmaker Liew said that the Section 114A amendment was one of the eight bills that were bulldozed through on the last day of parliament.

"This current situation shows that the parliamentary system is weak because there is no prior discussion of the bills with us or the stakeholders before they are tabled," he added.

The amendment was passed by the Dewan Rakyat and Dewan Negara in April this year and was gazetted on  July 31 by de facto law Minister Datuk Seri Nazri Aziz.

Critics have pointed out that Section 114A is too broad and contains several weaknesses, such as assuming that an administrator of a website, or an owner of a computer, is the publisher of the content unless it can be proven otherwise.

Source: http://www.themalaysianinsider.com/malaysia/article/evidence-law-review-reflects-pm-parliaments-weaknesses-says-pakatan/

Repeal ‘guilty until proven innocent’ law, Bar Council tells government

August 13, 2012

The amendment shifts the burden of proof onto the accused, and goes against the rules of natural justice. — Reuters pic

KUALA LUMPUR, Aug 13 ― The Bar Council wants the government to repeal a law that makes even coffee shops offering free Wi-Fi services liable for any defamatory or criminal acts of customers using computers at their premises.

It said that while it recognised that people could exploit a false persona to incite racial hatred, organise violent hate crimes and commit fraud, the recently introduced Section 114A of the Evidence Act of 1950, which came into force on July 31, was not the answer to these problems.

The new law creates a presumption that any registered user of network services is presumed to be the publisher of a publication sent from a computer linked to that network service, unless the contrary is proved.

The Section also provides that any “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.”

“Suitable replacement legislation can be enacted later, if necessary, but only after full consultation with all stakeholders,” the Bar Council said in a statement today.

“Such a section would therefore create a presumption that is so wide that even the owner of a coffee shop that offered a free Wi-Fi facility could be presumed to have published an online publication originating from a computer using the Wi-Fi facility.

“Although it is true that the presumption enacted is merely a rebuttable presumption, dragging such persons into court in the first place, and the embarrassment, cost and inconvenience that an ordinary layperson could be subjected to, cannot be compensated for by any eventual victory.”

Deputy Higher Education Minister Datuk Saifuddin Abdullah and Umno Youth chief Khairy Jamaluddin have added their backing to a growing chorus of protest against the new law.

“We urge members of parliament from both sides of the divide to make a bipartisan approach to the Government to take immediate steps to repeal Section 114A.

“In formulating a replacement to section 114A, we urge the government to embrace an open and transparent process for drafting suitable legislation to address the problems of anonymous cybercrimes by having public consultations with all relevant stakeholders,” the Bar Council said.

 The campaign against the new law that threatens to curtail freedom of expression online here has widened with more organisations promising to take down their websites in the Internet Blackout Day tomorrow.

The Centre for Independent Journalism Malaysia (CIJ) said the Bar Council has confirmed they will be taking down their website to support this while the DAP is also shutting down all its websites on August 14.

Tech-savvy DAP leader Lim Kit Siang and human rights lawyer Edmund Bon have pledged to go offline for 24 hours while others will support a pop-up to promote the Stop 114A campaign. They include Datin Paduka Marina Mahathir, Hishamuddin Rais (Tukar Tiub), Uppercaise, Nat Tan, Niki Cheong, Anil Netto, Juana Jaafar, Sarawak Bloggers, Fahmi Fadzil and myasylum.

The Internet Blackout Day initiative is aimed to create awareness among Internet users about the negative impact of the amendment on online expression and takes its cue from similar efforts in the United States and New Zealand in support of internet

CIJ said internet users who visit participating websites tomorrow will see a pop-up window that will contain the message of the campaign. In addition, Netizens may change their profile pictures/avatar on Twitter and Facebook to black or use downloadable images provided by CIJ.

The new law was passed by the Dewan Rakyat and Dewan Negara in April this year and was gazetted on  July 31 by de facto law Minister Datuk Seri Nazri Aziz.

Source: http://www.themalaysianinsider.com/malaysia/article/repeal-guilty-until-proven-innocent-law-bar-council-tells-government/

114A 广东话是 “日日死”

反对114A条文 马来西亚黑色网络日: 8月14日

1. 在马来西亚使用互联网，你需要了解这条法律将对你构成的威胁...
2. 请支持：一百万马来西亚人，反对 114A 条文运动

由: Centre for Independent Journalism
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