Section 114A: Spotlight trained on authorities

By Edwin Yapp August 27, 2012

Umno Youth alleged seditious posting on Facebook a test case of country’s newly amended Section 114A
Authorities must investigate impartially, in a transparent and just manner to avert perception of favoritism

Periscope by Edwin Yapp

BY now, most know that an offensive Facebook posting, ostensibly belonging to Umno Youth, was left on its page last week.

The post, which appeared last week, was a vile message and can only be described as seditious, untruthful and an incitement to hatred against Christians.

Many have noted that this scenario calls into question as to whether the newly amended Evidence (Amendment) (No 2) Act 2012, or Section 114A, would be used to bring to book those responsible for the post.

Going by the layman’s interpretation of wordings of Section 114A, the youth wing of the dominant party in the ruling coalition is presumed to be the publisher, and this makes it liable for any action taken under our country’s current defamation and sedition laws.

But before I go further, let’s recap the many major developments that have taken place since this news hit the fan, according to various media reports:

The youth wing of the dominant party in the ruling coalition has denied that this was an official posting, arguing that it doesn’t even have an official Facebook page, just an official website.

Umno Youth has since filed a police report and has denied the posting was put up by legitimate Umno representatives.

Information, Communications and Culture Minister Datuk Seri Rais Yatim suggested that Umno Youth could be probed under Section 114A.

Lawyers also weighed in on the issue saying the burden of proof is on Umno Youth to show that it is not the publisher of controversial remarks but noted that “this factual presumption is not tested in court” yet.

Meanwhile, Penang Chief Minister Lim Guan Eng has gone on record to question whether the federal government will prove they are not playing politics or applying double standards if it does not use the Section 114A against Umno Youth.

Umno Youth chief Khairy Jamaluddin has said he was willing to be subjected to Section 114A of the Evidence Act.

De facto law minister, Datuk Seri Nazri Aziz has said that Section 114A does not apply to the Umno Youth posting, while the police have said that they would not use said section to investigate the matter, noting that the probe will be instead be conducted under Section 233 of the Communication and Multimedia Act (CMA) 1998. It added that whether Section 114A, or other sections, were used or not is up to the Attorney General.

And finally, administrators of an Umno Youth fanpage yesterday apologized for its controversial posting on Facebook earlier this month, suggesting that a vote for Pakatan Rakyat (PR) will result in Christianity becoming the country’s official religion.

For the record, Khairy was not in favor of Section 114A and was vocal in calling for its review.

But while this might bode well for him in having personally objected to the amendment, it doesn’t solve the problem that he and his colleagues are now facing vis-à-vis this alleged Facebook posting by Umno Youth, who has said that it will leave it to the authorities to conduct their investigation.

Section 114A: Spotlight trained on authorities Let me make this unequivocally clear – my colleagues and I at Digital News Asia are opposed to Section 114A as we feel it’s a bad law that doesn’t serve the very purpose it was intended to address in the first place.

But while our objections are on record, Section 114A is nonetheless a law that is now enforceable by the authorities, and as such should be applied equitably to all.

Without being politically partisan about this issue, the fact remains that the Umno Youth scenario is not only a real test case for the ruling coalition but also the first high profile case that will set a precedent for other cases to follow.

Notwithstanding the fact that the Attorney-General as the country’s top lawyer has the prerogative whether to use this section to charge Umno Youth or not, I believe that several essential issues must still be addressed.

The first is that the authorities must go about their investigation fairly and make known their findings to the public, and not just Umno Youth, about exactly what happened.

These questions include how it happened in the first place, who were involved, why it happened, and how this will not be repeated in the future, among other questions. This process must be done transparently and information should be revealed as publicly as possible.

Authorities such as the police, the Attorney’s General office and other relevant agencies must then investigate and determine where the criminality lies, instead of just treating this whole debacle as mere allegations of mischief, and at worst, sweeping it under the carpet.

Following closely behind that will be the need to bring to book those who are accountable for putting up the posting in the first place.

As tricky as it may get for the authorities, they must not only adhere to the law but also be seen to be doing so.

Because if nothing comes out of the investigations, all that has been said about Section 114A will become moot and the government will be perceived to have engaged in spin doctoring to deflect the issues, especially at a time when the elections are round the corner.

Don’t get me wrong. I’m not for Section 114A to be used in such a manner in the first place. But now that the Government has made it law, proper follow-through must take place, as the Government cannot apply double standards, just because it involves the ruling coalition’s youth wing.

Put simply, the authorities have a chance to show that they can stand up and be counted.

The question is, will they?