Why Malaysian Evidence Act Section 114A should be repealed

Continued opposition to this piece of legislation may yet result in it being taken off the statute books.

THE recent amendment to the Evidence Act with the insertion of Section 114(A) basically presumes that a person who is depicted in a publication as owner or administrator is presumed to have published the contents.

This effectively means that those named in publications are presumed guilty of any offending content that may be posted, including those on the Internet where there is no licensing and it is easy to use some other person’s name, photograph and details as the originator.

This presumption of guilt, requiring the accused to prove his innocence, instead of the prosecution having to prove his guilt, is a strange reversal of the rule of law when the entire justice system is based on the assumption of innocence unless guilt is proven.

It is stranger still coming in the wake of moves to liberalise draconian laws such as the Internal Security Act which provided for detention without trial, and the Universities and University Colleges Act which severely curtailed the rights of students to participate in the political process.

When there is such liberalisation taking place, it is strange that the Government should be setting the clock back by introducing legislation that goes clearly against the grain of justice.

Yes, the Internet space is a raucous one and lots of stuff are pasted and posted, and people, including many in the Government, the Cabinet and the Opposition, are regularly blasted for things that they may or may not have done.

But there are laws to deal with them such as the defamation laws. And some of the victims have sought recourse to these with visible success, which includes Information, Communications and Culture Minister Datuk Seri Dr Rais Yatim.

Why, therefore, should a sledgehammer be given to prosecutors to bring a tonne of weight down indiscriminately on people who may not have committed the offence, but may have a tough time proving that they had not and may become involved in tangled knots with the law for a long time?

Conspiracy theorists, of whom a lot exist in this country due to the nature of the way things are, have immediately seen this as a move to limit criticism. That’s hardly a PR effort by the Government.

When the Centre for Independent Journalism organised an Internet blackout on Aug 14, it met with a tremendous response and many people just did not post anything on the Net during that particular day.

Such support must have had an effect on the decision of the Prime Minister to call upon the Cabinet to review its decision to pass the amendment to the relevant Act.

“Whatever we do we must put the people first,” the PM had tweeted, and who can disagree with that?

But unfortunately, the Cabinet stuck to its guns and backed its previous decision.

Dr Rais said the Cabinet discussed it exhaustively and decided not to make any changes because Parliament was represented by the ruling party and the Opposition and had debated it.

“Once it is officially passed, to do something now is an afterthought,” he said.

Dr Rais added that the Law Minister would explain further.

Later, Home Minister Datuk Seri Hishammuddin Hussein said the controversial amendment would be explained further by the Attorney-General.

“If explained properly, I believe right-thinking people will know why the amendment was tabled in Parliament and approved. If there still are fears, laws can also be tweaked, amended and abolished, but don’t get emotional about it,” he said.

Those interested will wait for the Government explanation, although Dr Rais had already said that presumption of fact was nothing new in law and there was still room for accused persons to defend themselves.

The converse position is that such a law can be abused.

Those who want to “fix” someone on the Net can post comments and claim that it came from that particular person. And that person will be tied up in knots trying to defend himself.

That is the main fear among Internet users and other publishers.

Inordinate power is in the hands of prosecutors who now don’t have to prove who the real publishers are.

The question is why grant them these additional powers under the amendment when the entire Internet is subject to the laws of the country?

The only difference is that there is no licensing of the Internet compared to conventional media such as print and broadcasting.

Thus, the new laws are seen as a move to bring the Internet under control more quickly than using existing laws, a move which the disinterested would oppose.

Policymakers may actually realise that. As seen by the quote from the Home Minister above, if there is continued strong opposition to the amendment, it could be repealed.

Perhaps it may need another tweet from the Prime Minister to make that happen, and this time he will be at that Cabinet meeting.

That should make a difference to what the Cabinet may think.

Question Time By P. Gunasegaram

> Like most people, P Gunasegaram can’t stand presumptuous people.

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Malaysian Internet users to become victims of Evidence Act ... 

Malaysian Constitutional posers for G. Election 13

Once Parliament is dissolved, a general election need not be held immediately. The Constitution permits a delay of 60 days from the date of dissolution.

A GENERAL election may be around the corner. So we need to brush up on our knowledge of the constitutional principles relating to elections.

No fixed term: Under Article 55(3) of our Constitution, the life of Parliament is stated to be five years from the date of its first meeting. As that date was April 28, 2008, the existing Parliament will automatically dissolve when the sun rises on April 28, 2013.

However, it is constitutionally permissible for the Prime Minister to advise the Yang di-Pertuan Agong to dissolve Parliament before the expiry of its term and thereby to give himself the advantage of choosing the most favourable time for the electoral contest.

This is in contrast with many Commonwealth countries including Britain which have enacted laws to have fixed term legislatures. Malaysia may wish to emulate this wholesome practice.

Early dissolution: Though the King is a constitutional monarch required to act on advice, in the matter of early dissolution, he has been explicitly vested by Article 40(2)(b) with a discretion to accept or reject his PM’s counsel. Conventionally, however, he always obliges though in exceptional circumstances he may not do so.

Elections: Once Parliament is dissolved, a general election need not be held immediately. Article 55(4) of the Constitution permits a delay of 60 days from the date of dissolution. This means that contrary to popular expectations of early polls, the next election can be held as late as the last part of June 2013!

One must note, however, that the timing is not for the PM to determine. The nomination date, the date of polling and the campaign period are in the hands of the Election Commission, which must act with independence and impartiality. The present law permits a campaign period of no less than seven days though news has it that for the next election, the EC will permit 10 days.

Interim period: Between the dissolution of one Parliament and the convening of the next, who steers the ship of state? The Constitution is gloriously silent on this important issue. For this reason, the British constitutional convention is adopted that the incumbent PM who called the election continues to remain in office in a caretaker capacity.

Powers of the caretaker PM: Leadership during interim periods poses problems of democratic legitimacy for the caretaker government. This is due to the fact that once Parliament is dissolved, the PM ceases to satisfy the twin requirements of Article 43(2).

These requirements are that the PM must belong to the House of Representatives and he must in the judgment of the King command the confidence of the majority of the members of the House. As the House ceases to exist, the legitimacy rug is pulled from under the PM’s feet.

For this reason there is worldwide debate about the need to impose clear curbs on the powers of interim governments.

In Australia, a Caretaker Conven­tion has been drafted to outline that the proper role of such a government is to be a night watchman, to hold the fort, not to initiate radical policies, not to dismiss or appoint new judges or undertake significant economic initiatives.

In India, the President has on several occasions vetoed caretaker governments’ measures because exercise of such powers may embarrass the government to be formed.

In the Malaysian case of PP v Mohd Amin Mohd Razali (2002) the court held that Article 40(1), which requires the monarch to act on advice, is not applicable if the advice is rendered by a caretaker government during the dissolution of Parliament.

Hung Parliament: If no single party or coalition emerges with an absolute (50% + 1) parliamentary majority, the new legislature will be referred to as a hung Parliament.

Such parliaments exist and function throughout the world but have never made an appearance in Malaysia at the federal level. Commentators are deeply divided about their demerits or merits.

Appointment of PM: Whatever one’s views on hung parliaments may be, it has to be conceded that they create massive problems for the Head of State on a number of issues, among them the critical one of who is to be trusted with the mantle of leadership. Several competing considerations are available.
First is the incumbency rule. If no one secures an absolute majority, the caretaker PM must be given the first chance to form the government.

Second, in Nepal there is a constitutional rule that in a hung Parliament, the first bite of the cherry must be offered to the leader of the largest party.

Third, if a viable coalition or a unity government can be hammered out, it should get the chance to lead the nation.

Fourth, if no coalition can be cobbled together, the Head of State should appoint a “minority government” that is capable of obtaining ad hoc support to pass the budget and other critical measures.

If the defeated PM asks the King for an immediate “double dissolution”, should His Majesty consent? It is submitted that Article 55(4) requires that after one dissolution the new parliament must be convened within 120 days.

The proper course of action would be for Parliament to meet, a vote of no-confidence to be taken and then only the House dissolved for a new election unless an alternative government can be put in place.

Caretaker’s tenure: If the ruling party fails at the general election, must the caretaker PM who took the country to the poll resign immediately? In England Gordon Brown refused to step down till he had (unsuccessfully) exhausted efforts to form the government.

If the caretaker PM refuses to step down, can the King dismiss him?

If the formation of a unity or coalition government takes a long time, must the defeated Prime Minster re-main in office till a new PM is appointed? Most amazingly, Belgium went 535 days with a caretaker government because the new government took time to be pieced together.

The permutations of politics are many and more than any other aspect of a nation’s political life, general elections throw up issues that test our wisdom to the fullest.

> Dr Shad Faruqi is Emeritus Professor of Law at UiTM

2012, a new year’s field of wishes

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A new year’s field of wishes

ON YOUR OWN by TAN THIAM HOCK

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GOVERNMENT TRANSFORMATION PROGRAMME

TODAY is the last day of 2011. Congrats for having survived another business year. Hope you have stayed healthy too.

As an entrepreneur, based on a scale of one to 10, have you had a good year? Moderate year? Or just another year that you would like to forget? What are your wishes for 2012 and beyond?

What if I start an entrepreneur wish list that I will send to our dear Prime Minister? Would you support me and write to me the one wish that you think should be included in the list? But please do not send me letters or post cards as I have no intention of physically delivering the sack loads to Putrajaya. It is bad for my poor back and also my golf swing which will then go from bad to worse.

And no long messages or long winded explanations either. He is a very busy man. If possible, keep it to one word. That should catch his attention.

If you are still uncertain on how to approach the one word, perhaps, I can be of some help. For instance, we will have an acronym eWISH1M which is one Malaysian entrepreneur wish. Then, from the dictionary, just pick one word and I am sure his circle of advisors and strategists will be able to analyse it from many different angles, some of which even you are not aware of. Here is an example:

To our dearest YAB PM eWISH1M “field”



If his super smart advisors interpret field as an expanse of open or cleared land suitable for pasture or tillage or playing, then he will recognise the wishes of the people to preserve the few green lungs and playing fields left in Klang Valley. Instruct the State Economic Development Corporations and and Government-Linked Companies to forego the development and profit potential and leave open fields alone.

Maybe one of the advisors will realise that fields like Rubber Research Institute of Malaysia, Sg Buloh should have been earmarked for low cost housing. Maybe it is possible to build three bedroom high rise apartments at a cost of RM 150,000 (no land cost) to cater to the needs of the poor.

What they deemed as valuable land should be used to house a valuable workforce that will feed the needs of the commercial capital of Malaysia. No poor man can afford a minimum RM400,000 house that will be built on this rubber field.

Malaysian entrepreneurs of all races are asking for a level playing field. Where opportunities are not hijacked by the privileged few. Why should a small retailer under the Economic Transformation Plan, have to borrow RM60,000 to revamp his store so that he can survive the onslaught of foreign hypermarkets when under the Government Transformation Programme (GTP), a very successful local multi millionaire retailer be given RM40mil to open retail stores? The GTP should be helping the needy, not the greedy.

On the field of expertise, the PM should be worried when the Employee's Provident Fund (EPF) second their chief investment officer (CIO) to manage a bank when the CIO should be managing our RM400bil savings. Like the other sovereign funds Khazanah Nasional Berhad and Permodalan Nasional Berhad, EPF should stick to their field of expertise which is fund investment and not fun management.

Even though it is quite intoxicating to act as powerful entrepreneurs when you are not, the supreme fund managers of our sovereign wealth and pension funds should realise that they are accountable to the citizens of Malaysia who are shareholders and stakeholders in the wealth of the nation.

In addition to fielding winnable candidates for the coming elections, the PM should appoint intelligent and capable field generals as ministers. Generals who can lead the nation into international economic battlefields not shrieking racial rhetorics in local fields. Generals who can field any MACC question and know what their family is up to. INTELLIGENT1Minister should be your next mission should you agree to accept your reappointment as PM-1.

Corporate Malaysia Inc operates like magnetic fields where greedy entrepreneurs are drawn to inept politicians and corrupt officials. Either you lead the field or you leave the field. Those in power reap the fields. Losers are sent to the killing fields.

And I will end my message to our dear PM with a plea Restore HONOUR1M.

Unfortunately, this might just be one word too many for his super smart advisors to comprehend. And wishful thinking on my part. Final reality check.

On a personal note, I have written on issues outside the field of entrepreneurship and as such will leave the field to the real writers.

It had started out as a challenge from the ever gracious CEO of Star Publications (M) Bhd and thanks to him, I now have a better appreciation of responsible journalism. And how not being able to write freely on issues close to your heart can be detrimental to your golf swing and your soul.

Many thanks to friends who texted and emailed their support. To those who wrote to me for all the right reasons, you kept me going week after week. Much appreciated.

To all eWannabes, Good luck.

To all entrepreneurs, Happy New Year.

The writer is an entrepreneur who hopes to shares his experience and insights with readers who want to take that giant leap into business but are not sure if they should. Email him at thtan@alliancecosmetics.com

Biz Talk 2011-12-17 Currency integration questioned (Video)

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