Monday, 28 May 2012

Malaysia: Land of presumed guilt? — Khairie Hisyam Aliman

MAY 28 — “Think of the victims. People who have been slandered or whose lives have been threatened,” said Malaysian Communications and Multimedia Commission chairman Datuk Mohamed Sharil Mohamed Tarmizi.

In an interview on the Dewan Rakyat’s adoption of the amendments to the Evidence Act last month, he lamented that cyber bullies escaped punishment due to lack of evidence and retorted that “owners of Internet accounts where hate messages had originated could easily rebut charges against them if they were innocent.”

The owners can find themselves in hot water if, among others, someone posts an offensive comment on their blogpost or Facebook wall; also, if someone uses the same Internet connection to post anything offensive online.

In a nutshell, the new section 114A assumes a person is guilty if any illegal material originates from his or her network or machine, until it can be proven otherwise.

Unfortunately, the Internet age is not that simple.

Given the fact that many bloggers do not use comment filtering, comments on their blog posts will be published before the blog owner even sees the comment or has a chance to assess it. I don’t restrict my friends from posting on my Facebook wall, but I’m not always on 24/7 to check what they’re posting for legality (nor am I inclined to, given my time commitments to my family, my job, and procrastinating on the Internet).

And not too long ago I was renting an apartment with a few housemates, with whom I shared the same Internet connection, for which we paid together. It appears that the government is now saying that I can be liable if an adult I am not responsible for slanders someone online.

Honestly, I feel it’s ridiculous. How did we become a nation that presumes guilt until innocence is proven? With such a vast room for sabotage in this day and age when it comes to technology, it should be the other way around.

It brings to mind a recent quote from Tan Sri Abu Zahar Ujang, the Dewan Negara president:

“As a lawyer myself, I agree that if a person is acquitted by the court, it does not mean he is not guilty. He is released because the prosecution could not prove beyond a reasonable doubt of the defendant’s guilt.”

I’ve always thought that Article 5(1) of our federal constitution, in saying that “[n]o person shall be deprived of his life or personal liberty save in accordance with law”, enshrined the principle of presumption of innocence, which is the bedrock of English common law. How sad it is to see that I’ve thought wrong. And I shudder to think what such wide-ranging powers could do in the wrong hands — with what constitutes “offensive” being subjective, how can anyone be sure that they won’t be persecuted for airing their opinions?

Granted, cyber bullying is a real issue and the authorities need proper tools at their disposal. But such a tool, inadvertently (or not) stifling the people’s voice, is not the right way forward. The potential for misuse is far too great a risk to allow.

As George Washington once said: “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.”

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