KUALA LUMPUR, Aug 22 — The burden of proof is on Umno Youth to show that
it is not the publisher of controversial remarks suggesting that a vote
for Pakatan Rakyat (PR) will result in Christianity becoming the
country’s official religion, due of recent amendments to the Evidence
Act, lawyers have said.
Umno Youth has claimed that the person who put up the poster with the
controversial remarks was “unauthorised” to do so and that the page was
not its official Facebook page.
The poster, which was uploaded last Saturday and taken down the same
day, appeared to suggest that votes for federal opposition Pakatan
Rakyat (PR) will cause Islam to be replaced by Christianity as the
country’s official religion.
It had read: “Jika anda setuju untuk jadikan KRISTIAN sebagai agama
rasmi persekutuan Malaysia, teruskan sokongan anda kepada Pakatan
Rakyat. (If you agree to make CHRISTIANITY the official religion of the
federation of Malaysia, continue supporting Pakatan Rakyat.) ‘God bless
you my son’.”
If Umno Youth is brought to court over the “unauthorised” Facebook
post, it would be the test case for the newly-enforced Section 114A of
the Evidence Act that has already seen widespread opposition from the
public.
Section
114A makes even coffee shops offering free Wi-Fi services liable for
any defamatory or criminal acts of customers using computers at their
premises.
The new law creates a presumption that any registered user of network
services is presumed to be the publisher of a publication sent from a
computer linked to that network service, if he cannot show otherwise.
The Section also provides that any “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 re-published the contents of the publication unless the
contrary is proved.”
Civil liberties lawyer Syahredzan Johan told The Malaysian Insider
that Section 114A would impose a presumption that Umno Youth had
published the poster, but notes that “this factual presumption is not
tested in court” yet.
“But say, for whatever reason, Umno Youth is charged under the
Sedition Act for promoting ill will between the Muslim and Christian
communities, the factual presumption would operate,” Syahredzan said.
“All the prosecution would need to prove is that the Umno Youth is
stated to be the owner or administrator of the Facebook page,” he said,
noting that it is “quite easy to do so” as the page “represents itself
as Umno Youth’s”.
Once that is proven, Umno Youth would be “presumed to be the
publisher of the post” and would then need to “rebut this presumption”,
he added.
“This is a perfect example of the absurdity and injustice of Section 114A in operation.”
The prime minister had on Twitter last week said his Cabinet would
review the law after several organisations ― including the Malaysian Bar
― chose to black out their websites to signal their opposition to the
law.
A day later, however, Information, Communications and Culture
Minister Datuk Seri Dr Rais Yatim announced that the law will stay.
Foong Cheng Leong, the Kuala Lumpur Bar IT committee co-chair, agreed
with Syahredzan, saying that “if we follow (Section) 114A, looking at
subsection 1, it seems that the presumption of fact is that Umno Youth
is the publisher of the poster.”
He said there is an “impression that it’s a legitimate Pemuda Umno
page”, saying that the Facebook page, which has over 50,000 “likes”,
features Umno Youth’s logo and the party president Datuk Seri Najib
Razak’s photograph.
Foong said that Section 114A is unclear on a number of things, saying that it “does not say when the presumption is rebutted.”
“We don’t know if a police report is sufficient to rebut the
presumption,” he said, saying that “we’re left at the unknown stage.”
“Can the media go and tell everybody that Pemuda Umno is the
publisher of the poster? Can the media publish it as fact because in the
law it’s presumed as fact?” he asked.
When asked if there was any law for Umno Youth to fall back on in
court, the lawyer said there is “no exemption under (Section) 114A” and
“the only thing they can do is come out with proof it’s not them.”
Lawyer Faisal Moideen shared Foong’s view, saying that “making a
police report may not be enough because it seems to be a bare denial.”
However, he defended the law and stressed that it does not impose a
presumption of guilt but only the presumption of fact of publication.
“At the end of the day, it doesn’t mean they have committed a crime,”
he said, adding that “it takes more than just publication to make a
person guilty.”
Based on his reading of the law, he said “you don’t have to show who
did it, you have to show you didn’t publish it” to rebut the
presumption.
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