The newly inserted s. 114A of Evidence Act 1950 has sparkled controversies that need to be addressed. It should no longer be a matter of concern of journalists and those who are outspoken. It is a law that applies to all of you and might some day be applied to all of you.
The Evidence (Amendment) (No. 2) Act 2012 shouldn’t be a matter of concern only to journalists and human rights critics. It is nevertheless a law that applies to anyone and can be applied to anyone. To sum out the bits of pieces of this controversial insertion of s. 114A into the Evidence Act 1950, there are basically three types of situations where there would be a rebuttable presumption of fact in law:
(1) If your name, photograph or pseudonym appears in a publication, which depicts yourself to have some connection with the publication, either you as the owner, editor or etc., you are presumed to have published or re–published the contents of the publication;
(2) If a publication originates from a network service that you have registered and subscribed to, you are presumed to have published or re-published the contents of the publication; or
(3) If a publication originates from a computer which you have custody or control on it, you are presumed to have published or re-published the contents of the publication.
Before venturing further depth into the implication of this provision, it is necessary to understand two important principles that are at stake. Let us say A has made a statement telling you that you are not an honest person, well the first response we will have is to reply ‘why is that so?’ One wouldn’t disagree that A under these circumstances will have to explain why you are not an honest person. The legal phraseology ‘he who asserts must prove’ embodies this common sense, that a person has the burden to prove his/her case that he has brought forward. Let us imagine another situation, where you are brought before a magistrate and are charged with theft. In such a case the prosecutor (who accused you of committing the crime) must prove that you did commit the crime ‘beyond reasonable doubt’ and you are to remain innocent ‘until proven guilty’. From here we can see that the two principles, i.e. ‘he who asserts must prove’ and the presumption of innocence actually work hand-in-hand together, consistently and logically.
However, such a presumption of innocence is by no means absolute in the face of legislation. Parliament through a proper constitutional framework can always legislate to shift the burden of proof from the prosecution (or plaintiffs in civil cases) to the defendant. In law, we refer to these clauses that shift such a burden as ‘reverse onuses/burdens’. E.g., section 6 (2) of the Sedition Act 1948 states that ‘No person shall be convicted of any offence…if the person proves that the publication…was printed, published, sold, offered for sale, distributed, reproduced or imported without his authority, consent and knowledge and without any want of due care or caution on his part, or that he did not know and had no reason to believe that the publication had a seditious tendency.’ Also, the draconian section 37 of the Dangerous Drugs Act 1952 is of the same effect, which presumes a person to be in possession of drugs if he is found to have custody of drugs and also presumes a person to be trafficking drugs if he is found to have possession of drugs, unless proven to the contrary.
Now why is it so contentious since the defendant is given the opportunity to assert to the contrary? Isn’t this a true enshrinement of the right to a fair trial where each party is given the fair opportunity to present their case? The answer is simply not if we appreciate that there is only formal equality between the state/prosecution and the defence, but not substantive equality. As worded truthfully by Paul Roberts and Adrian Zuckerman, ‘in criminal proceedings…the adversarial expectation of “equality of arms” between the parties is hardly ever more than a transparent, and potentially pernicious, fiction’. Such inequality explains the rationale of the presumption of innocence and the high standard that the prosecution must prove, which are some the fundamental safeguards in the law of evidence that protects an individual from a powerful state. The effect of section 114A may or may not be effective in targeting cyber-crimes, but it is very likely to distort the default position and to deteriorate the already unequal position between an individual and the state.
Furthermore, as argued by David Hamer, both the presumption of innocence and reverse onuses protects different interests: the former protects the interest of the defendant not to be convicted innocently whereas the latter protects the interest of society in facilitating law enforcement. The issue here was what the justifications are, in every single case, to shift the burden from the other and to prioritize one’s interest to the other. Well clearly this amendment was promulgated by the government for the purpose of facilitating law enforcement, i.e. ‘the identification and proving of the identity of an anonymous person involved in publication through the internet’, as evident from the explanatory statement to the Bill. One could certainly argue that the welfare of the public should be prioritized over the individual, where utilitarianism, patriotism or communalism, whatever one may think of, demands it.
But one should never forget the famous words of an eminent jurist, William Blackstone who contends that ‘it is better to let ten guilty men go free than to convict one innocent’. Criminal denunciation is so severe and devastating in nature, that its ‘symbolic sting of censure may be more painful to an offender (whom might be innocent) than any hard treatment meted out to him as tangible punishment’. It is catastrophic to someone who is innocently convicted, for that person’s hard-earned reputation, self-esteem and moral standing will be publicly condemned and cruelly ruined. That is why justification to shift the burden and to remove the safeguards of the presumption of innocence must be judged and scrutinized in a robust manner. The highest court in UK in R v Lambert, was explicit in this point when Lord Steyn defined the standard that must be shown to justify a reverse onus to be ‘pressing necessity’. It is my submission that the Malaysian system should come to that standard.
Due to the Human Rights Act 1998, the UK courts have over the time ‘read down’ a number of reverse onuses to a lesser ‘evidential burden’*- to actually compromise both the presumption of innocence and parliamentary sovereignty. Now we must bear in mind that we do not practise parliamentary sovereignty in this country, but the supremacy of the Federal Constitution. It is certainly welcoming to see a country where Parliament is supreme to be engaging in healthy discussions, both in the academia and in the courts, on how to draw a fair balance between the presumption and reverse onuses; whereas it is disappointing to see a country to bring in more and more reverse onuses that are questionable, when we are actually ‘safeguarded’ by the Federal Constitution which contains our Bill of Rights. Relating this back to section 114A, my question is what is the strong justification here? I would agree that most of us might have differing views of what is ‘pressingly needed’ in this country, but I am reserved in finding that it must be something to do with internet hacking.
Now, if this law is applied in reality- the implicit message that it sends out is simple: all Malaysians will be seen as ‘liars (or deceivers, seditionists, defamers, etc) first, honest person next’, which is also similar to the message conveyed by any reverse onuses- ‘criminals first, citizens next’. The prosecution can easily end you up in jail, and to stigmatize you with harsh labels such as ‘defamers, deceivers, liars, and seditionists’ if you are unsuccessful in proving your innocence. The state with its abundant resources and manpower, from the police to the prosecuting authorities, will shed the might of the whole state against a weak individual that is safeguarded by no laws, but only by his conscience. Justice simply cannot be done if a person’s computer is hacked by somebody else as a means to spread seditious statement or if a villain simply put the name of a respectable and responsible writer on an unknown piece of defamatory article, and the law demands this helpless person and innocent writer to be further aggrieved in proving their innocence. Equality is further undermined, when now an individual that was presumed under section 114A will have a 50:50 chance of securing his acquittal (because he will have to prove his case based on a standard of balance of probabilities), rather than being convicted beyond reasonable doubt, as it should be if the onus of showing guilt lies on the prosecution.
If the imbalance between the state and the individual is further tipped in favour of the state by this section 114A, I fear that, in the present context, freedom of expression might one day seek the services of Rockwells.
* In the case of ‘evidential burden’, the defendant needs only to show sufficient evidence to raise an issue or a defence, but the burden to prove the defendant’s guilt will throughout lies on the prosecution, which is bound to negate that issue/defence that was raised by the defendant. E.g. in R v Lambert, section 28 (2) of the Misuse of Drugs Act 1971 was argued by the prosecution to have imposed a legal burden on the defendant to prove that he has no knowledge of the type of drug he has in possession. However, the highest court in UK has rejected this argument and ‘read down’ the section to bears only an ‘evidential burden’ on the defendant. Hence, the defendant needs only offer evidence sufficient enough to raise an issue that he might have no knowledge of the type of drug he has in possession, and the prosecution nevertheless bears the burden to prove the defendant’s guilt by negate his assertion that he has no knowledge beyond reasonable doubt.
Blackstone W, Commentaries on the Laws of England
Chun M., ‘Internet Users Cry Foul over Amendment to Evidence Act’, The Sunday Mail (20 May 2012) < http://www.thesundaily.my/news/383833> accessed 28 July 2012Hamer D., ‘The Presumption of Innocence and Reverse Burdens: A Balancing Act’ (2007) 66 Cambridge Law Journal 142
Roberts P. & Zuckerman A., Criminal Evidence (2nd ed, OUP 2010)
Yapp E., ‘Evidence Act Amendments, A Slippery Slope’, Digital News Asia (24 May 2012) < http://www.digitalnewsasia.com/node/165> accessed 28 July 2012
Dangerous Drugs Act 1952, s. 37
Evidence Act 1950, s. 114A
Evidence (Amendment) (No. 2) Act 2012, s. 3
Human Rights Act 1998
Evidence (Amendment) (No. 2) Bill 2012, explanatory statement
Misuse of Drugs Act 1971, s. 28 (2)
Sedition Act 1948, s. 6 (2)
R v Lambert  2 AC 545,