PERSIDANGAN KOMUNITI SYARIAH JABATAN PEGUAM NEGARA 2023

 Ke Arah Memantapkan Penguatkuasaan dan Pendakwaan Jenayah Syariah

Tarikh              :  20 hingga 22 Jun 2023  
Tempat            :  Hotel Lexis, Port Dickson 

1. Penghinaan terhadap Royal, Race, Religion (3R) berlaku secara nyata dan secara maya, termasuk dalam media sosial. Kesalahan semakin berleluasa dikhuatiri sekiranya tidak dibendung, rakyat akan hilang kepercayaan kepada undang-undang dan penguatkuasaan dalam negara.

 

 2. Peruntukan undang-undang di dalam Akta 593 (Prosedur Jenayah), Akta 574 (Penal Code), Akta 588 (AKMM) tidak terdapat dalam Akta 561 (Keterangan Syariah WP) dan Akta 559 (Kesalahan Jenayah Syariah WP) dan lain-lain peruntukan enakmen negeri.

 

3. Selain isu tiada peruntukan untuk penguatkuasaan kesalahan multimedia di Mahkamah Syariah, isu bidangkuasa kewilayahan (wilayatul qadha’) dalam hukum syara’ juga perlu ditangani. Bidangkuasa Hakim Syarie adalah bersifat territorial dan tidak boleh melampaui pentauliahan oleh Ketua Agama negeri masing-masing. 

4. Penambahan seksyen 153(3) Akta 593 (CPC) (dimana penerbitan itu dilihat, didengar dan dibaca oleh mana-mana orang)

(3) When the accused is charged with an offence relating to publication by electronic means, the place of publication is where the publication is seen, heard or read by any person.”

5. Penambahan seksyen 114 Akta 56 (keterangan) (Anggapan)

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 (a) “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.”

6. Penambahan dari seksyen 116(b) Akta 593

116B Access to computerized data 116B. 

(1) A police officer not below the rank of Inspector conducting a search under this Code shall be given access to computerized data whether stored in a computer or otherwise. (2) Any information obtained under subsection (1) shall be admissible in evidence notwithstanding any other provisions in any written law to the contrary. (3) For the purpose of this section, “access” includes being provided with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of the computerized data.

7. Penambahan dari seksyen 90(a),(b) dan (c) Akta 56 “Admissibility of documents produced by computers, and of statements contained therein.

“Admissibility of documents produced by computers, and of statements contained therein. 

90A. (1) In any criminal or civil proceeding a document produced by a computer, or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement. 

(2) For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used.

(3) (a) It shall be sufficient, in a certificate given under subsection (2), for a matter to be stated to the best of the knowledge and belief of the person stating it. 

     (b) A certificate given under subsection (2) shall be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate.” 

(4) Where a certificate is given under subsection (2), it shall be presumed that the computer referred to in the certificate was in good working order and was operating properly in all respects throughout the material part of the period during which the document was produced.

(5) A document shall be deemed to have been produced by a computer whether it was produced by it directly or by means of any appropriate equipment, and whether or not there was any direct or indirect human intervention. 

(6) A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use

(7) Notwithstanding anything contained in this section, a document produced by a computer, or a statement contained in such document, shall not be admissible in evidence in any criminal proceeding, where it is given in evidence by or on behalf of the person who is charged with an offence in such proceeding the person so charged with the offence being a person who was— (a) responsible for the management of the operation of that computer or for the conduct of the activities for which that computer was used; or (b) in any manner or to any extent involved, directly or indirectly, in the production of the document by the computer.”

Weight to be attached to document, or statement contained in document, admitted by virtue of section 90A 

90B.In estimating the weight, if any, to be attached to a document, or a statement contained in a document, admitted by virtue of section 90A, the court— 

(a)may draw any reasonable inference from circumstances relating to the document or the statement, including the manner and purpose of its creation, or its accuracy or otherwise:

(b) shall have regard to— 

(i) the interval of time between the occurrence or existence of the facts stated in the document or statement, and the supply of the relevant information or matter into the computer; and 

(ii) whether or not the person who supplies, or any person concerned with the supply of, such information or the custody of the document, or the document containing the statement, had any incentive to conceal or misrepresent all or any of the facts stated in the document or statement.

Sections 90A and 90B to prevail over other provisions of this Act, the Bankers’ Books (Evidence) Act 1949, and any written law 

90C.The provisions of sections 90A and 90B shall prevail and have full force and effect notwithstanding anything inconsistent therewith, or contrary thereto, contained in any other provision of this Act, or in the Bankers’ Books (Evidence) Act 1949 [Act 33], or in any provision of any written law relating to certification, production or extraction of documents or in any rule of law or practice relating to production, admission, or proof, of evidence in any criminal or civil proceeding.”