Why Malaysian Evidence Act Section 114A should be repealed

Continued opposition to this piece of legislation may yet result in it being taken off the statute books.

THE recent amendment to the Evidence Act with the insertion of Section 114(A) basically presumes that a person who is depicted in a publication as owner or administrator is presumed to have published the contents.

This effectively means that those named in publications are presumed guilty of any offending content that may be posted, including those on the Internet where there is no licensing and it is easy to use some other person’s name, photograph and details as the originator.

This presumption of guilt, requiring the accused to prove his innocence, instead of the prosecution having to prove his guilt, is a strange reversal of the rule of law when the entire justice system is based on the assumption of innocence unless guilt is proven.

It is stranger still coming in the wake of moves to liberalise draconian laws such as the Internal Security Act which provided for detention without trial, and the Universities and University Colleges Act which severely curtailed the rights of students to participate in the political process.

When there is such liberalisation taking place, it is strange that the Government should be setting the clock back by introducing legislation that goes clearly against the grain of justice.

Yes, the Internet space is a raucous one and lots of stuff are pasted and posted, and people, including many in the Government, the Cabinet and the Opposition, are regularly blasted for things that they may or may not have done.

But there are laws to deal with them such as the defamation laws. And some of the victims have sought recourse to these with visible success, which includes Information, Communications and Culture Minister Datuk Seri Dr Rais Yatim.

Why, therefore, should a sledgehammer be given to prosecutors to bring a tonne of weight down indiscriminately on people who may not have committed the offence, but may have a tough time proving that they had not and may become involved in tangled knots with the law for a long time?

Conspiracy theorists, of whom a lot exist in this country due to the nature of the way things are, have immediately seen this as a move to limit criticism. That’s hardly a PR effort by the Government.

When the Centre for Independent Journalism organised an Internet blackout on Aug 14, it met with a tremendous response and many people just did not post anything on the Net during that particular day.

Such support must have had an effect on the decision of the Prime Minister to call upon the Cabinet to review its decision to pass the amendment to the relevant Act.

“Whatever we do we must put the people first,” the PM had tweeted, and who can disagree with that?

But unfortunately, the Cabinet stuck to its guns and backed its previous decision.

Dr Rais said the Cabinet discussed it exhaustively and decided not to make any changes because Parliament was represented by the ruling party and the Opposition and had debated it.

“Once it is officially passed, to do something now is an afterthought,” he said.

Dr Rais added that the Law Minister would explain further.

Later, Home Minister Datuk Seri Hishammuddin Hussein said the controversial amendment would be explained further by the Attorney-General.

“If explained properly, I believe right-thinking people will know why the amendment was tabled in Parliament and approved. If there still are fears, laws can also be tweaked, amended and abolished, but don’t get emotional about it,” he said.

Those interested will wait for the Government explanation, although Dr Rais had already said that presumption of fact was nothing new in law and there was still room for accused persons to defend themselves.

The converse position is that such a law can be abused.

Those who want to “fix” someone on the Net can post comments and claim that it came from that particular person. And that person will be tied up in knots trying to defend himself.

That is the main fear among Internet users and other publishers.

Inordinate power is in the hands of prosecutors who now don’t have to prove who the real publishers are.

The question is why grant them these additional powers under the amendment when the entire Internet is subject to the laws of the country?

The only difference is that there is no licensing of the Internet compared to conventional media such as print and broadcasting.

Thus, the new laws are seen as a move to bring the Internet under control more quickly than using existing laws, a move which the disinterested would oppose.

Policymakers may actually realise that. As seen by the quote from the Home Minister above, if there is continued strong opposition to the amendment, it could be repealed.

Perhaps it may need another tweet from the Prime Minister to make that happen, and this time he will be at that Cabinet meeting.

That should make a difference to what the Cabinet may think.

Question Time By P. Gunasegaram

> Like most people, P Gunasegaram can’t stand presumptuous people.

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Astro Astro to revise rates despite being urged to review price hike; Boycott threat looms!

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Astro to go ahead with plans to revise rates from Monday

By RISEN JAYASEELAN and EUGENE MAHALINGAM starbiz@thestar.com.my  Friday July 8, 2011

PETALING JAYA: Despite all the brouhaha that has arisen following Astro's planned revision of its rates, indications are it will take effect this Monday as planned.

This is according to industry sources. Astro has yet to reply to e-mail questions on this at the time of writing.

Industry experts also said the Communications and Multimedia Act 1998 (CMA) did not prevent Astro from carrying out its price revisions.

Corporate lawyers familiar with the CMA pointed out that companies operating under the Act did not need the prior approval of the Malaysian Communications and Multimedia Commission (MCMC) for price revisions.
 

“The same applies to all broadcasters and telecommunications operators. The Act doesn't require them to seek approval for any price changes.

“Telco's change their rates all the time as it is a dynamic industry. It would also not be feasible for these operators to seek the commission's approval for price changes every time,” a lawyer explained.

Another lawyer said that while the minister in charge had the right to intervene in the determination of rates of companies licensed under the CMA, as provided for by section 199 of the Act, that section should be read in the full context of the CMA.

“In particular, reference must be made to section 198, which determines the general guidelines for licensees to determine rates,” he said.

Section 198 of the CMA states among other things that rates must be fair and not unreasonably discriminatory and should be based on costs of the operator. It also states that rates should be structured at levels “set to attract” investment into the communications and multimedia industry.

In an advertorial published in major newspapers yesterday, Astro clarified that its price adjustment was in essence “a rationalisation of its existing packages, with the specific intention of creating more value for the customer.”

“Under the previous structure, prices were based on an add-on rate. Under the revised price structure, the more packs purchased, the greater the discount.

“Depending on the choice of package, customers could either save, experience a price increase or remain unaffected by the new price revision,” Astro said.

Astro also said the rationale for the new price structure was due to escalating global and local content costs.

“In 2007, our total content cost was at RM760mil and this figure escalated to a staggering RM1.3bil this year. Where premium content is concerned, the increase has been as high as 300% with every renewal of content rights.

“While Astro has absorbed escalating content costs over the years, it can no longer do so without compromising on the quality of its services,” it said.

Meanwhile, an analyst who used to cover the stock when Astro was listed said the rate increase was justified to cover its rising content cost.

“With rising content cost, it makes sense to raise prices. Of course, passing it on to customers is not the best way to do it, but it's the only way,” she said.

The analyst said Astro had been trying to “re-jig” the cost of its packages over the years to ensure that it was not a burden on the lower-income group of customers.

“The prices of its basic packages have not changed for many years.” She said it made business sense to raise rates or it would be difficult to sustain profitability.

“Content cost has been going up over the years and the only way to combat it is by increasing rates.”
Another analyst said Astro had been investing a lot in upgrading its facilities, adding that a price hike was necessary.

“When they started offering their packages in high-definition, content cost naturally went up.”

He also said from his understanding, in the past, Astro only needed to inform the MCMC about potential rate hikes and that no approval was necessary.

Astro urged to review price hike 

By Karen Arukesamy , newsdesk@thesundaily.com July 1, 2011

KUALA LUMPUR: Domestic Trade and Consumer Affairs Minister Datuk Seri Ismail Sabri Yaakob urged local pay-television giant Astro to be sensitive to consumers' needs and review its price increase.

Saying that the price increase will indeed burden the people, especially middle and low-income subscribers, he said Astro's price revision should be in line with the government's initiative to reduce prices.

"Astro should rethink about increasing the price for its service channels. "Not just Astro but all other corporate companies should be more sensitive to the needs and burdens of the people," Ismail told a press conference today after launching the National Consumers Month 2011 at KL Sentral here.

Noting that Astro is under the purview of the Information, Communication and Culture Ministry, Ismail Sabri said he will engage with Minister Datuk Seri Dr Rais Yatim to ensure that the people are not burderned by the price hike.

"It is not under my jurisdiction and my ministry cannot take action against it but I have advised Astro about my concern and the concerns of the people on the price revision," he added.

He stressed that it is "inappropriate and wrong" for Astro to state that its price hike is "inevitable" despite Rais's reminder that it has to first get the approval of the Malaysian Communications and Multimedia Commission (MCMC) before increasing the subscription fee.

He said the consumers have the right to demand for a reasonable price for the goods and services they purchase.

Reiterating the theme of the programme "Consumers Rights Are Your Responsibility", Ismail Sabri said consumers can lodge reports on any unsatisfactory service or products with the Consumer Tribunal.

On recent calls by various consumer associations to boycott Astro by freezing payment for three consecutive months due to its price hike, he said: "It is their right to boycott."



Ismail said consumers have a choice and they can choose to boycott satelite pay-television and revert to the local television channels which are free.

On June 15, Rais said the ministry would discuss with Astro on the issue and the notice issued by Astro that from July 11, Astro customers may experience increases ranging from RM1 to RM15 per month was considered invalid as it did not obtain the approval from the MCMC.

However, Astro chief operating officer Henry Tan had in a statement on June 22 said that the hike was imminent and inevitable because the content costs had increased to RM1.3 billion in 2011 from RM760 million in 2007.

The company, however, will maintain the price of its Family Pack at RM37.95 per month with access to 38 channels.

The price adjustment effective July 11 is based on the subscribers' package selection. Some subscribers may be charged an increase of between RM1 and RM15 per month, while some would enjoy a reduction of between RM4 and RM14.95 per month.

Boycott threat looms over Astro

KUALA LUMPUR (June 27, 2011): Consumer associations urged Astro subscribers to boycott the pay-television giant for its decision to increase prices from July despite the government’s pending review.

The Malaysian Islamic Consumers Association (PPIM), along with over 70 NGOs including the Consumers Association of Penang and Federation of Malaysian Consumers Associations, have urged all Astro subscribers to stop payments for three months.

PPIM chairman Tunku Azwil Tunku Abdul Razak said that this is in view of Astro chief operations officer Henry Tan’s statement that the price hike is “imminent and inevitable”.

“Since Astro did not take heed of consumers’ demands made in a statement on June 17, PPIM urges all subscribers to boycott its services until it fulfils consumer demands to reduce the price and enhance its quality,” he said at The Mall here today.

He said the NGOs will also be calling for a boycott of all products that are advertised on Astro in order to demonstrate consumer power.

He said PPIM has set up a secretariat to monitor complaints on Astro’s price increase and services, and to take note of companies advertising with it.

He said that the NGOs are not against Astro but want the company to be more responsible and adhere to customers demands.

“We regret that Astro is not being considerate with the public’s complaints, and dissatisfaction over its price hike and deteriorating service quality that is not in line with the government’s motto of People First; Performance Now.”

He said thousands of complaints have been received from consumers via an online survey and more was coming in through Twitter, Facebook and phone calls.

Tunku Azwil was disappointed to note that Astro had denied that the public was against the increase when the association had submitted its customer demands on June 17.

He said that the 70 NGOs comprising consumer groups and non-consumer groups have three million supporters.

Tunku Azwil urged the government to pay heed to this boycott by ensuring that consumer demands are fulfilled.

“We call on the Domestic Trade and Consumer Affairs Ministry and Information, Communications and Culture Ministry, to protect consumer rights.”

He said the government should stop monopolies.

From July 11, Astro customers may experience increases ranging from RM1 to RM15 a month but this will be balanced by savings of RM4 to RM14.95 a month in subscriptions.

The company, however, will maintain the price of its Family Pack which gives access to 38 channels at RM37.95 a month.

Sundaily