IF I understand the law correctly, much of the Evidence Act focuses on the due process and material basis on which evidence has to be adduced to establish a matter before the courts.
The controversy surrounding it is the doctrine of “innocent until proven guilty!”
Unlike the French doctrine, and perhaps the Chinese doctrine, the alternative systems define one as ‘guilty as charged’ by the public prosecutor, until the defending lawyers can establish evidence to dismiss the charge.
Therefore, before we get into the debate of whether this new insertion into the Evidence Act is “necessary or otherwise,” my question to the Attorney General (AG) is: “Since when has our doctrine of ‘innocent until proven guilty’ been turned upside down for the sake of the convenience of the lawmakers and law-enforcement agencies?”
Does the AG and all Parliamentarians, who acceded to the amendment of our doctrine of jurisprudence, realise that we are taking the nation on a slippery slope, empowering all enforcement agencies with a hammer to kill an ant?
In the internet-worked world one of the foundational lessons we teach all lawmakers is the principle of how do you know that the “person at the other end of the internet is not a monkey?”
You see, theoretically, any person or a monkey, or a two year old child can randomly type any message on the internet (what with i-Pads today)? And who would be the wiser?
Therefore, how is it possible to ensure that the person on the other end of the internet, in all cases, is the same person that he or she claims to be?”
It is for this explicit purpose that the government passed many cyber laws to enable the fruition of the internet-worked world. And, if credit has to be given, this regulatory enablement and the promise of zero internet censorship, plus the creation of many cyber agencies (like Multimedia Commission and Cyber Security Malaysia) was the best way to ensure that our democratic and civilising society can grow and mature into a true and better democracy.
So, I have a fundamental problem with the so-called amendment of the Evidence Act. How can a website owner be “presumed to be guilty the moment one of his readers post any “illegall” message?” The writer can be held liable for his or her or its own writing (in case of a monkey) but how can the platform owner simply be held liable or guilty of wrong-doing?
Our legal doctrine of “innocent until proven guilty” has created an entire system of jurisprudence which is designed and developed entirely upon the “transferring the burden of proof for the accusation and assertion to the public prosecutor, or in civil cases to the Plaintiff.
So then, how can we simply flip it all the other way? Or, worse still how can we use industrial logic to transplant physical process assumptions into the cyber world?
In the physical world, there is always an editor, and then a complier or composer, who usually sits at the same operations as the editor, and finally the publisher to whom the editor is always fully responsible. Under such linear and time chronology process of building contents, it is conceivable that one can hold the editor or the publisher responsible for content displayed or published.
But, if we are not ignorant of the workflow and process of operations of the internet-worked world, co-production and co-publishing is very much the order of the day.
That is the brilliance of the internet-worked world!
For example, I am also a columnist with Malaysiakini.
Of course, since it is an internet-based news medium, they too ‘edit’ before they publish. In this instance, either holding me as the writer or them as the publish or for any misdemeanour is reasonable.
But, there is also a feedback feature in the Malaysiakini write-up wherein persons, including in anonymous forms, can write what they want as feedback.
These are instantly uploaded electronically with no human oversight, and often with no more than 100 words. How can Malaysiakini be held liable for these postings, even if it is from paying subscribers?
If there is a serious case of libellous or seditious violations, there can easily be a due process of investigation.
Even Malaysiakini will be able to “reveal who the offending anonymous or pennamed person is!” But, the current version of Section 114A of Evidence Amendment (No 2) Act 2012 ignores all such due process and instead holds Malaysiakini, as editors and publishers liable as “guilty even before the evidence is adduced.”
The burden of proof is passed to the editors to “establish that the subscriber had some malicious intent in the publication!” How ridiculous!
Finally, the AG has obvious selective memory. There was one case of “rumour mongering” in early 2000 when a couple of students used the internet to “spark a rumour about racial riots in downtown KL.” I remember writing about it, as the rumour had reached my then 17-year-old son and 15-year-old daughter; and they were genuinely scarred as both parents were not at home.
I believe the couple were charged for rumour mongering but there was no conclusive evidence on who actually typed the message and therefore who committed the crime. The couple was acquitted for lack of evidence.
Dear AG, please respect the laws of Malaysia already enshrined in our Constitution; our Document of Destiny, as your lecturer would put it. More importantly please honour and respect the spirit and values already encapsulated within our Constitution. One of the most fundamental ones is the doctrine of “innocent until proven guilty” Please do not try to reverse this by entering through the back door! That is part and parcel of the close-one-eye culture!
Remember, you can only fool some people some of the time; but never all the people and all of the time!