Two ways to repeal Section 114A of Evidence Act

The contentious Section 114A of the amended Evidence Act can be abolished via a constitutional challenge, said Bar Council president Lim Chee Wee.

In an email response, he said Articles 5(1) and 8(1) of the federal constitution state that ‘no person shall be deprived of his life or personal liberty save in accordance with law’, and that everyone has equal protection of the law.

Furthermore, under Article 11 of the Universal Declaration of Human Rights, every individual is innocent until proven guilty when charged with a penal offence.

“Our Federal Court (has) reiterated that our criminal justice system stands on the twin pillars of the burden of proof lying with the prosecution and the common law principle of presumption of innocence. (These) together safeguard the guarantee of the right to a fair trial,” Lim said.

He explained that the argument with Section 114A is that it goes against the presumption of innocence, and that it is harder to prove guilt in case of offences involving the Internet.

This is because of free access leaves the network host responsible any inappropriate action.

Another way of resolving the situation, Lim said, would be by asking Parliament and Attorney-General Abdul Gani Patail (right) to persuade the authorities and the government’s chief legal adviser to remove the amendment from the statute books.  

According the Star, the Bar Council had met Abdul Gani last Friday at his office in Putrajaya.

Section 114A was introduced as an amendment to the Evidence Act in April.

It presumes that any person or organisation whose name is carried together with any online publication is the author of that content.

If the person or organisation is not the author, it is up to them to prove innocence. The same applies to network owners whose Internet connectivity is used by others for ‘illegal’ activities.