The problem of Evidence Act 1950 section 114A

Criminal Laws and trials carries very serious consequences and hence should always be carefully and justly carried out.

Most nations apply the principle of Ei incumbit probatio qui dicit, non qui negat (the burden of proof lies with who declares, not who denies), whereby one is considered innocent until proven guilty. The burden of proof always lies on the prosecution to prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, then the accused is to be acquitted.

The opposite principle is called Presumptions of guilt. An example is Order to Show Cause as in the Anglo-Saxon law systems. Court orders are issued to one or more of the parties requiring him/them to a case to justify, explain, or prove something to the court.

As you can see below, The Evidence Act section 114A uses a different principle of jurisprudence, i.e. presumption of guilt unless the contrary is proven.

Anyway, for those who are interested, Presumption of Innocence and the right to defence has been affirmed by Article 48 of the Charter of Fundamental Rights of the European Union. What I can say is our MPs really lack the substance and depth when it comes to Law making. We seemed to be heading backward to the Old Age where basic human right is lacking. 

I will write out my suggestions for improvement on the next episode, touching on technicalities of network security. Stay tuned.

Written by: Steve Teoh Chee Hooi

_______________________________________________________________

Evidence (Amendment) (No. 2)

New section 114A

3. The principal Act is amended by inserting after section 114 the following section:

114A. “Presumption of fact in publication

(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.”

EXPLANATORY STATEMENT

This Bill seeks to amend the Evidence Act 1950 (“Act 56”).

2.  Clause 1 contains the short title and the power of the Minister to appoint the commencement date of the proposed Act.

3. Clause 2 seeks to amend section 3 of Act 56 to streamline the definition of “computer” with the definition of “computer” in the Computer Crimes Act 1997.

4.  Clause 3 seeks to introduce a new section 114A into Act 56 to provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet.