Controversial 114A

What is Section 114A?

Section 114A is the second of two amendments made to Malaysia’s Evidence Act 1950.

Law Minister Nazri Aziz tabled the second amendment, formally known as Evidence (Amendment) (No2) Act 2012, in Dewan Rakyat on 18 April. James Dawos Mamit supported the motion, and Section 114A was passed after the second and third reading. On 9 May, Dewan Negara passed the amendment.

The amendment was gazetted on 31 July 2012. This means the law is now operational.

How Section 114A of EA 1950 has violated the freedom of internet users in Malaysia?

What’s the effect of Section 114A?

This amendment will significantly impact the law governing internet publications by persons in Malaysia, including news reporting, blogging and interactions in the social media. The amendment will allow the prosecution or a plaintiff to rely on a presumption of fact to prove the identity of the person responsible for an internet publication. Essentially, the internet user identified in the amendment is deemed to be the publisher of content, unless the user proves otherwise. The burden of proof has shifted.

This amendment to the law of evidence in Malaysia has far reaching consequences for internet users. It will facilitate the proving of offences under the Communications and Multimedia Act 1998, the Computer Crimes Act 1997 and the Sedition Act 1948 against internet users. It will also ease the proving of defamation claims on internet publications. While the Malaysian government has defended the amendment as being necessary to protect the public interest, the internet community in Malaysia has reacted in an uproar.  

Exceptions to Hearsay.

The exceptions to the hearsay rule can be complex and difficult to understand. Especially thorny is the common law exception of the res gestae. It was once concerned with words uttered in the course of an offence. But it has now evolved into an exception covering words uttered in the heat of excitement of an event and in circumstance that render it improbable that the statement was false.[1]
 As a result of the injustice caused by the rigid framework of the hearsay rule, the inclusionary exception of the ‘res gestae’ was created at common law for statements so closely intertwined with the events in issue as to amount to part of what actually happened.[2]’Res gestae’ is a Latin phrase that literally means ‘remarks which relate to a particular act’. The res gestae exception provides that a statement is admissible if it accompanies and explains an act. The reasoning being, “that human action may be so interwoven with words that the significance of the action cannot be understood without the relevant words, and ignoring these words from the action would impede the discovery of the truth”. The rationale for preventing use of the hearsay inference is not because we value fairness more than truth.[1] There are many advantages of allowing the inclusionary rule, however there are also substantial grounds that question the justifying reasons for permitting such an exception.