Government Clamping Down on Democracy: Amendment to Evidence Act

Joint NGO Press Statement, 1. June 2012

The signing NGOs condemn the amendment made to the Evidence Act 1950 passed in the last Parliament sitting. Despite the far-reaching repercussions the amendment was tabled without any known transparent process of consultation with the public and passed in Parliament without sufficient time allocated for debate.
The newly inserted Section 114A of the Evidence Act provides for the following:

  • Owners, hosts, administrators, editors or sub-editors of websites or social media accounts are deemed responsible for any content that has been published or re-published on their site whether by themselves, persons impersonating them or any other persons;
  • Subscribers of a network service which was used to publish or re-publish any content are deemed responsible for the publication; and
  • Owners or individuals in custody of an electronic device which was used to publish or re-publish any content are deemed responsible for the publication.

It is therefore, of great concern that the amendment subverts the universal rule of law that person is innocent until proven guilty but now any person charged under the amendment is considered guilty until proven otherwise.
Section 114A of the Evidence Act when coupled with repressive laws such as the Sedition Act 1948, Official Secrets Act 1972, Printing Press and Publications Act 1984 and the CommunicationsandMultimediaAct 1998, further restrict whatever remains of the constitutionalright to freedom of expression of all Malaysians. Not only does this law further intimidate citizens into practicing self-censorship, it also provides room for abuse by anyone with malicious intent to frame others of a crime under the aforementioned repressive laws. Instead of being a safeguard of justice, this law facilitates injustice.
In the context of elections, there is a large possibility where Section 114A of the Evidence Act may be wrongfully used by any individual to criminally implicate any political party or candidate. Any individual could be wrongfully accused of publishing a statement deemed offensive or seditious that he or she did not publish. Even the mere act of an anonymous person leaving comments on any site associated with a particular politician could lead to the politician being implicated for publishing material deemed as offensive or seditious. The amendment facilitates dirty politics, which is already a common practice before, during and after elections in Malaysia.
Freedom of expression is the cornerstone of democracy. In Malaysia, where access to information via the mass media is highly regulated by the government aided by repressive laws, Malaysians have increasingly resorted to using the Internet as a democratic space where they can exercise their right to freely express their opinions and to access information. The amendment to the Evidence Act reinforces that freedom of expression remains but an illusion enshrined in the Federal Constitution. When the government clamps down on the rakyat’s right to freedom of expression, the government clamps down on democracy.
The signatories call on the Malaysian Government to immediately withhold implementation of Section 114A of the Evidence Act and to repeal the amendment immediately.
There are also new provisions in the Criminal Procedure Code (Amendment) (No. 2) Act 2012 which will facilitate the police:-

  • to conduct search and seizures under various circumstances without
    a warrant, in relation to a security offence or organised crime;
  • to gain access to computerised data; and
  • to intercept communications,
  • and to use the evidence obtained in a subsequent trial of any person.

The manner in which such acts can be conducted permit violations in relation to personal confidentiality and privacy of an individual, without adequate safeguards against abuse of such powers.
The signatories calls on the Malaysian Government to take action to lift all restrictions on freedom of expression including amending the Printing Press and Publications Act 1984 and the CommunicationsandMultimediaAct 1998 to remove restrictions on content regulation; and repealing Sedition Act 1948 and Official Secrets Act 1972.
Signing NGOs
All Women’s Action Society (AWAM), Center for Independent Journalism (CIJ), Lawyers for Liberty (LFL), Persatuan Kesedaran Komuniti Selangor (Empower), Persatuan Masyarakat Selangor & Wilayah Persekutan (PERMAS), Pusat Komas (KOMAS), Saya Anak Bangsa Malaysia, SUARA, Tenaganita, Women’s Aid Organisation (WAO), Women’s Center for Change (WCC)