Section 114A violates freedom of expression and is flawed as it presumes one is guilty until proven innocent, says Suhakam chief Hasmy Agam.
āSection 114A 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).
āThe newly-introduced provision, which came into force on July 31, 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,ā said Suhakam chairman Hasmy Agam in a press statement.
The amendment enables law enforcement officials to hold publishers of websites accountable for seditious, defamatory or libellous postings even if they are not the actual authors of the content.
Those affected include people who own, administer or edit websites open to public contributors such as forums or blogs, people who provide web-hosting services on Internet access and people who own the computers or mobile devices used to publish content online.
Section 114A have been heavily criticised by Internet users and civil society groups that resulted in a day long protest campaign called Stop 114A organised by Centre for Independent Journalism on Aug 14.
However on Thursday, Minister in Prime Ministerās Department Nazri Aziz confirmed that Section 114A will be maintained on the grounds that it is necessary for national security.
Elaborating on the principle of innocent until proven guilty, Hasmy said that Section 114A would pose a challenge in civil cases by reversing burden to proof.
āWhile 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.
āWhile arguably Section 114A does not shift overall burden of proof in a civil action, it may have the effect of reversing the burden to the accused or the defendant, and violate a fundamental principle of law.
Hasmy also countered Nazriās argument for Section 114A to be maintained on the grounds of national security.
āLimitation of rights of an individual must be imposed solely for protecting a legitimate aim when it is absolutely necessary and must proportional
āThere must also be adequate safeguards to avoid any abuse of powers,ā he said.
Amended Evidence Act stays