By Nigel Aw
The conviction of an engineer this month for insulting the Perak sultan via online comments is proof that prosecutors can succeed in such cases without resorting to the hotly-disputed Section 114(a) of the Evidence Act 2012.
“It’s been done before, look at the sedition case involving the Perak sultan,” said human rights lawyer Edmund Bon (right) when contacted today.
The Butterworth Sessions Court had on June 1 sentenced Chan Hon Keong to a year’s jail and a RM50,000 fine, but he has obtained a stay pending appeal.
Bon said prosecutors were similarly able to pinpoint the origin of the text in Sri Muda assemblyperson Shuhaimi Shafiei’s sedition case.
The key, said Bon who is also a community mover for Pusat Rakyat with Loyar Burok, is for the police and prosecutors to put more effort into investigation instead of taking the easy way out.
“The question is not about reversing the burden of proof but should instead be to enhance the professionalism of law enforcers,” he said.
Under the amendment passed by Dewan Negara last month but which has yet to be gazetted, prosecutors will no longer be required to prove that a particular online posting originates from a user.
Instead, it is automatically assumed that the owner of the machine or network on which the publication is posted is behind the article, unless he or she is able to prove otherwise.
If the publication carries a person’s photograph, pseudonym or name, it is also automatically assumed that person is responsible unless proven otherwise.
Possibility of wrongful conviction
While concurring that the amendment is procedural in nature and merely involves a particular step in proving a crime, Bon insists that the amendment is a significant one.
“It may just be one element in a charge but it is the most important element…it decides whether you get the right or wrong guy (for conviction).
“The state already has so many resources (at its disposal). And now an ordinary citizen presumed to be the origin of a publication has to disprove it. Not everyone has that kind of resources.”
Bon said the possibility of wrongful conviction cannot be ruled out as a result of this amendment.
He added that, based on the government’s track record, it also opens the possibility that this may be abused for political purposes. – Mkini