Section 114A and legal presumptions: Are they fair?

By Art Harun | August 15, 2012
The Malaysian Insider

AUG 15 ― Many may not realize this but the law does make many presumptions about the subject matter of its governance, namely, us.

The most famous (infamous?) and perhaps harshest presumption that our law makes is in respect of drug trafficking. Section 39B of the Dangerous Drugs Act 1952 stipulates that whoever is found guilty of drug trafficking shall be punished by death.

Making things a lot easy for the prosecution is a legal presumption imposed by Section 37 of that Act that any person who is found in possession of, among others, 15g or more of heroin or morphine or 200g or more of cannabis will be presumed to be a drug trafficker unless proven otherwise.

Without that legal presumption, the prosecution would, regardless of the quantity of the drug being in possession of the accused person, have to prove that he or she is a trafficker. That means, the prosecution would have to prove that the accused person has been doing any of the following acts, namely, “manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of the Act.”

Only after those facts are proven by the prosecution beyond any reasonable doubt can the accused be said to be a trafficker and convicted accordingly.

In any prosecution, the general rule is that the prosecution has to prove the charge beyond reasonable doubt. That is premised upon the maxim that a person is innocent until proven guilty. Apart from that it is thought that the prosecution represents the State and the State has all the powers, investigative authorities and resources to prove a charge and thus it is only fair that the burden of proof be discharged by the State prosecutors.

However, taking the drug trafficking offence as an example, it is thought that securing a conviction would really be a difficult task if we were to follow the said general rule. Hence, the presumption.

How does the presumption work, you may ask? In Court, in a drug trafficking case, the prosecution just needs to prove that the accused was caught having in his or her possession say, 18g of heroin. That is it. No further fact needs to be proven by the prosecution.

Upon those facts being proven, the law presumes that the accused person is a trafficker. The burden of proof than shifts to the accused person to prove his innocence, namely that he is not a trafficker.

How does he do that? Well he could say he wasn’t in possession. Or he could say that the drug was not heroin. Or that the heroin found was less than 15g. Or he could attempt to show that he is a hopeless drug addict who consumes 18g of heroin in a week and he was just stockpiling! IT may work.

It may not work. Either way, it is his duty to prove that he is not a trafficker. In other words, he is presumed guilty until he proves otherwise.

That is how it works.

There are many other instances where the laws make presumptions, rightly or wrongly. Fairly or unfairly. The most interesting legal presumption is contained in Section 113 of the Evidence Act 1950. Hold on to your seats, ladies.

That Section presumes that a boy of under 13 years of age is unable to commit rape. Unlike the drug trafficking presumption above, this presumption of inability to commit rape is irrefutable. Meaning, that presumption cannot in any circumstances be denied.

So we go to Court. A slender 42kg lady of, say, 18 years old, all of 5 ft 1 inch, describes to the Judge how this boy, of 12 years 10 months of age, 5 ft 5 inches, weighing 58kg pounced on her one night, with a knife in hand and started to molest her.

She was powerless to defend herself. He just pinned her and slashed her hand in the process. Then he penetrated her. She fought. She has got all the bruises and swollen eyes to show. Medical reports show that she was indeed raped. There were scars and lacerations all over. Trace of the boy’s semen could be found in her vagina. DNA testing proves that the boy was the person who raped her. In fact there was a video recording of the whole act because unknown to the boy, the girl had managed to leave her iPhone camera switched on for the duration of the attack.

Guess what? That boy cannot be convicted. Period!

Now, if we talk about the mother of all draconian laws in Malaysia, the erstwhile Internal Security Act, things would even get murkier. All it needs for you to languish in Kamuntingville for at least 2 years (which may be extended for a further period of two years over and over again till Kingdom Come) is a certificate signed by the home minister saying that you are a threat to national security.

That’s it. And BOOM, you are in Kamunting doing the squats. And Dr Mahathir Mohamad has ensured that you will not be able to challenge that certificate no matter how unreasonable, unfair, untrue and un-halal that minister’s certificate is by restricting the Court’s power to review that certificate.

The law prescribed that the Court can only review procedural non-compliance. That’s all. Meaning the Court can only see whether your name is wrongly spelt and things like that.

Thank God Prime Minister Najib Razak had opted to repeal the ISA. Of course Dr Mahathir now said that we need a strong government so that we can revive the ISA. Well, whatever it is, we shall presume that Dr Mahathir knows what he is talking about.

Apart from the above, there are many instances where the law presumes an intention to commit an offence.

Basically, in any crime, there are two elements, namely, the intention (in latin, the “mens rea”) and the act (in latin, the “actus reus”). Both elements must be proven by the prosecution beyond reasonable doubt. With either one, the charge is not proven and the accused cannot be found guilty.

However, there is a body of offences called “strict liability” offences. Here, the intention does not have to be proven.

For instance, when one is accused of being in possession of pornographic materials, the prosecution does not have to prove that he or she has the intention to possess pornographic material. All that is needed to be done is for the prosecution to show that the accused is in possession of the material in question and that would suffice.

Why is it like that? Because if intention needs to be proven, the accused (in fact all accused persons) would just say they never knew the material was pornographic and therefore they never intended to commit that offence.

Beating the traffic light is another instance. The prosecution just needs to show that the accused had beaten the light. Then the laws presume that he or she had intended to do so. Without that presumption, no case would end in a conviction because all accused persons would just say that they never intended to beat the traffic light. They would say they accidentally step on the accelerator for example. Or that their brakes were not working. Things like that.

All these presumptions may sound unfair. However, in passing such laws, the Parliament has to balance the interest of the society as a whole, taking into account the mischief that the law seeks to prevent and its impact on the society if is effectively prevented against the interests and rights of the accused person. It is not an easy thing to do, achieving this balance. And sometimes, any decision that is made in this respect reeks of a certain level of arbitrariness, which is inevitable.

That brings us to the latest legal presumption that saw netizens being up in arms over the last few days culminating in an internet black-out day yesterday, namely, the presumptions raised by Section 114A of the Evidence Act 1950.

This Section was passed by the Parliament, quite in haste, if I may say so, some weeks ago. No other than heavyweights from the ruling party itself, in the form of the Umno Youth Chief YB Khairy Jamaluddin and supreme council member Deputy Higher Education Minister Datuk Abdullah, had asked for this piece of law be reviewed and reconsidered. The reaction for cyber-space was almost inevitable and it would be entirely superfluous for me to state it here.

After the black-out day yesterday, or rather during it, the prime minister apparently tweeted from London saying that he had asked the Cabinet to review the said section.

Section 114A provides:

“(1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

(3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

(4) For the purpose of this section—

(a) “network service” and “network service provider” have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998[Act 588]; and

(b) “publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.”

While admittedly, offences involving publications and re-publications of offensive materials on the internet are difficult to prove and that may necessitate a certain level of legal presumption of guilt in order to achieve the balance which I’d written about above, it is the width and breadth of this section as it is presently worded that makes the presumptions rather disconcerting, if not offensive and repugnant to freedom of speech and freedom and liberty.

Under sub-section (1), anybody could be presumed to have published or republished offensive materials just because his or her name or even pseudonym appears in any publication on the internet! Even more, if his or her photograph appears with the publication, which could also invite a charge and a presumption that he or she is guilty.

So, imagine this. I decide to be naughty. I then publish an article that is seditious. I use your name and put your picture. That’s it. You are presumed guilty. And it is your duty to prove your innocence!

Sub-section 2 is even more worrying for those places with a shared network. I run an office for example. I have a network registered under my name. My staff uses the network to post some derogatory remark on a blog. I am presumed guilty. The same with those outlets that provide free Wi-Fi service.

The ridiculousness of sub-section 3 needs not be stated. I think everybody could see that sub-section 3 is so wide in its application that even internet café owners would now have to close down for fear of prosecution.

As I had stated earlier, the burden of proof rests on the prosecution and the State because the State is the one with the all the powers and investigative authorities and machineries. For the State to promulgate this kind of legal presumption gives new meaning to the word inefficiency and investigative disability.

By reversing the legal burden and shifting the burden of proving one’s innocence to him or herself, rather than discharging the burden of proof that should rightly rest with the State, the State is showing a wild disregard to its own function as a body with the all the investigative authorities and powers.

I have stated that in certain specific cases, legal presumptions may be a prudent way of prosecuting a criminal case in order to strike a balance between the interest of the society as a whole and the rights and interests of the accused person. However, Section 114A is hardly a showcase for such balance.

The call by the Honourable Prime Minister for his colleagues to review Section 114A could not thus come at more opportune a moment. ― art-harun.blogspot.com