Press Statement by the DAP Secretary-General and MP for Bagan Lim Guan Eng, in Kuala Lumpur on 26 May 2012.
The Evidence (Amendment) (No. 2) Act 2012, which was passed in the last sitting of the Dewan Rakyat and the Dewan Negara, will make it easier for the Government to launch selective prosecutions of members of the opposition and civil society. BN and the AG has no track record of fairness and justice and may use this new law to facilitate selective prosecution of members of the opposition and civil society.
The Act, which inserted a new section 114A into the Evidence Act 1950, is part of a package of laws that includes the Security Offences (Special Measures) Act 2012, which replaces the hated ISA, together with the Penal Code (Amendment) Act 2012 and the Criminal Procedure Code (Amendment) (No. 2) Act 2012.
The new section 114A creates presumptions of fact, inter alia, that a person who is the subscriber of a network service is the publisher of anything that originates from his network, and that a person who owns or controls a computer is the publisher of anything that originates from his computer, in either case unless he proves otherwise. This means that a person can be found guilty for publishing anything that is posted by a hacker who breaks into his computer or his wifi network, unless he can prove his innocence.
This reverses the presumption of innocence, whereby a person is presumed innocent until proven by the prosecution to be guilty beyond all reasonable doubt. In other words, I am responsible for anything posted on my website and the burden is on me to prove my innocence, not on the prosecution to prove my guilt
The DAP has no problem with giving police and prosecutors the tools they need to prosecute cyber-criminals and terrorists. However, the Government and the Public Prosecutor have shown by their past actions that they are more interested in pursuing selective prosecutions against members of the opposition and civil society for political ends than in pursuing real criminals.
Opposition and civil society members are routinely investigated and prosecuted under the Sedition Act 1948 for innocuous statements of fact or opinion. Internet users have been prosecuted under the Communications and Multmedia Act 1998 simply on the basis of statements deemed "offensive" by the Government.
Yet no action is taken, despite the lodging of police reports, against UMNO Online and other BN-linked blogs that criminally defamed me and my 16-year-old son for political reasons in October last year, or against the false news and incitement to racial and religious hatred that is regularly published in the UMNO-linked media, such as Utusan Malaysia and Berita Harian.
Malaysians may rightly question whether the amendments to the Evidence Act 1950 now open the door for convictions against members of the opposition and members of civil society to be more easily obtained on the basis of posts that have been "planted" without the knowledge of the accused. Before public confidence in the public prosecution service can be restored, the unfettered discretion of the Public Prosecutor to pursue selective prosecutions must be abolished, and the role of Public Prosecutor given to someone who is separate from and independent of the politically-appointed Attorney-General.
The recent charges against Datuk Seri Anwar Ibrahim and Deputy President Azmin Ali under the Peaceful Assembly Act as well as court action for compensation againt 10 organizers of Bersih 3.0 including its co-Chair Datuk Ambiga Sreenevasan highlights the double-standards of the BN government. This is because no similar action is taken against those supporters of BN who organised weekly demonstrations against the Penang PR state government in Komtar in Penang as well as those who masquerade as petty traders demonstrating outside Datuk Ambiga private residence.
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