Lawyers cry foul over 'guilty until proven innocent'

Malay Mail
by T.K. Letchumy Tamboo

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.

"It places an unfair presumption on account holders forgetting that technology is so complex and things like hacking can happen easily. Even the Pentagon was hacked, what more an online account," he said.

Criminal lawyer Salim Bashir also said the amendments contradict the principle that one is presumed innocent until proven guilty.

"With the amendment, it is now guilty until proven innocent.

"The burden of truth always rests with the prosecution. The lawmakers should have consulted all stakeholders such as the Bar Council, Attorney General and the police before amending it because it affects the public at large."