Section 114A and Legal Presumptions–are they fair?
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, 18 grammes of heroin. That’s 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.
ART HARUN
Many may not realise 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, 15 grammes or more of heroin or morphine or 200 grammes 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, 18 grammes of heroin. That’s 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 15 grammes. Or he could attempt to show that he is a hopeless drug addict who consumes 18 grammes 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 seat 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 irrebuttable. Meaning, that presumption cannot in any circumstances be denied.
So we go to Court. A slender 42 kg 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 58 kgs 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 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 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 mischiefs which 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 which is made in this respect reeks of a certain level of arbitrariness, which is inevitable.
That brings us to the latest legal presumption which 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:
