Suhakam said today the controversial section 114A of the Evidence Act 1950 violates the human rights principles of freedom of expression as enshrined in Article 19 of both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
The commission added that the newly-introduced provision, which came into force on 31 July 2012, also goes against a fundamental principle of law that a person is considered innocent until proven guilty as provided for under Article 11(1) of the UDHR.
“While the presumption of fact under the Section 114A is rebuttable, a person against whom the presumption is applied may lack the time, resources and more importantly, technical expertise in relation to the Internet environment, to prove the contrary in order to rebut the presumption,” the commission said today in a press statement. “In contrast, the prosecution, in criminal cases, may be better equipped to prove the guilt of the accused, as they are authorised to compel any of the potential witness to produce evidence, and has the technical expertise and resources to assist its investigation or prosecution,” it added.
The commission pointed out the new law may also discourage expression, dissemination and sharing of ideas, news and information, “thus limiting and impinging on the freedom of expression — an essential attribute of a full- functional democracy”.
It also detailed conditions of how any power or measure on the limitation of rights must be subjected according to human rights norms:
i. That the limitation of rights of an individual must be imposed solely for the purpose of protecting a legitimate aim (i.e. national security, rights or reputation of others, public health or morals) that is prescribed by international human rights principles;
ii. That the limitation of rights must be absolutely necessary for the protection of the legitimate aim;
iii. That the limitation of rights must be proportional to the protection of the legitimate aim. It must be remembered, however, that, there are some rights and freedoms that cannot be limited and they include the freedom from torture or other cruel, inhuman or degrading treatment or punishment; and
iv. That there must be adequate safeguards so as to avoid any abuse of powers. These conditions are important to strike a fair balance between public interests — legitimate national security concerns, on the one hand, and fundamental freedoms of an individual, on the other.
Suhakam reiterated that although national security is paramount to ensure peace and stability, Section 114A of the Evidence Act must be reviewed or repealed to protect and respect fundamental liberties and human rights to freedom of expression and the presumption of innocence until proven guilty.
“The Commission looks forward to engaging with the Attorney General’s Chambers and other stakeholders in the review of the Act, as well as in the drafting of any new law to ensure that they are consistent with universally accepted human rights principles,” it said. Review 114A, rights group demands accepted human rights principles,” it said.