What #Stop114A supporters may not know
Apparently, it is #Stop114A internet blackout day in Malaysia today. The campaign represents an objection against a provision in an amendment to the Evidence Act 19501 passed by parliament in April. The amendment introduced a so-called “presumption of fact” in identifying the author of anonymously published web content.
It is fair to say that opposition against the amendment amongst Malaysian internet users came about rather late. The campaign had only gained traction after the amendment came into effect in July. Some of the loudest voices against the amendment have carelessly branded it as the local version of Stop Online Piracy Act (SOPA) in the US.
The truth is, s 114A of the 1950 Act does not even remotely resemble SOPA.
Unlike SOPA - which broadens the powers of federal law enforcement authorities to block websites potentially linking copyright infringing content - the Evidence Act provision deals with a specific judicial procedure. It allows the prosecutor in a legal trial to rely on the assumption that certain related parties to be the author of an anonymously published content on the web.
On closer examination, s 114A of the 1950 Act is not particularly about the state curbing free speech. There are a myriad of other laws the state can and will use to deny Malaysians their right to freedom of expression. While I can appreciate the growing scepticism of the state on the part of #Stop114A supporters, I feel that many of them have missed the bigger picture.
As many observers have rightly commented, s 114A goes against one fundamental legal principle that the burden of proof lies with the one who lays the charges, not the one being accused. The presumption of innocence (“innocent until proven guilty”) is a fundamental right enjoyed by the accused in a fair legal system. Unfortunately, thanks to the rapid expansion of the state, presumption of innocence is long dead.
Vocal opponents of s 114A of the 1950 Act should be as loud in rejecting similar provisions littered in the Dangerous Drugs, Anti-Corruption and Penal Code Acts, to name but a few. In practice, the burden of proof is with the accused the moment they enter trial. The erosion of the rights of the accused is not exclusive to Malaysia, it’s happening in any country where the state is prevalent.
Underneath it all, there is a greater problem which I believe Malaysians need to pay attention to.
More than half a century after its founding, the parliament is still shadowed by the attorney general’s chambers (AGC) - where most statute laws originate. The fact that Malaysian legislators are practically rubber-stamping almost all the bills presented before the parliament2 begs the question who actually make the laws in this country?
Considering that the AGC are both legislative draftsmen and public prosecutors, it is difficult not to think that they have an incentive to write the statutes to their own advantage. The legislature’s reliance on and the centralisation of power in the AGC pose a real threat to the freedom of private individuals in Malaysia.
Malaysian advocates of liberty and justice should not stop short at calling for the repeal of s 114A. They must reclaim the legislature and the legal system from the dominance of any branch of the state.
1. Apart from inserting s 114A, the amendment of the 1950 Act also updates the definition of “computer”. It is quite interesting how computer has been redefined. The original act defined it as “any device for recording, storing, processing, retrieving or producing any information or other matter, or for performing any one or more of those functions, by whatever name or description such device is called” and added that “where two or more computers carry out any one or more of those functions in combination or in succession or otherwise howsoever conjointly, they shall be treated as a single computer”.
2. In an interview with a Malaysian paper, renown constitutional scholar, Prof Shad Saleem Faruqi said, “Something like 80% of the bills over a period of five years from 1991 [until] 1995 were passed without [even] a comma or a fullstop being amended. About 15% of the bills were withdrawn by the government. Because of MPs’ input, or inputs by the NGOs, or international pressure, the government decided to withdraw and relook at the bill. Only 5% of the bills did parliament make any impact in terms of amendments, and these amendments are incorporated by the government. So, it is quite clear that the legislative process is basically an executive process, not a parliamentary process.” (‘The all-powerful executive’, The Sun Daily, 8 April 2011)
The statistics for more recent years can be seen in the AGC triennial report (the charts in this report may be misleading). Out of 135 bills tabled in parliament between 2007 and 2009, more 87% were passed, despite the fact more opposition MPs elected to the lower house after 2008 general election.
It is also worth noting that there is a staggering mismatched of investment between the AGC and the parliament. The Drafting Division of AGC employs more than 70 staff members while the parliamentary legal advisor’s office has less than 20 staff members, most of whom are parliamentary researchers working for all 292 members of parliament.