Federal Court proceeds with contempt case against Malaysiakini over readers’ comments

Malaysiakini editor-in-chief Steven Gan speaks to reporters outside the courtroom at the Federal Court in Putrajaya July 2, 2020. ― Picture by Yusof Mat Isa
Malaysiakini editor-in-chief Steven Gan speaks to reporters outside the courtroom at the Federal Court in Putrajaya July 2, 2020. ― Picture by Yusof Mat Isa

PUTRAJAYA, July 2 ― The Federal Court today decided that it will hear the contempt of court proceedings against Malaysiakini over its readers’ comments on the news portal that were allegedly in contempt of the judiciary.

The Federal Court’s seven-man panel chaired by Court of Appeal president Datuk Rohana Yusuf said there was prima facie evidence to proceed.

When explaining why there was a prima facie case or a case for Malaysiakini to answer, Rohana said the five readers’ comments read out in court today were “contemptuous” in nature and Malaysiakini had prima facie or on the surface published the comments as they had appeared on the news portal.

Among other things, Rohana said the judges found that the facts showed that Malaysiakini facilitates publication of comments; that its editorial policy allows for the editing, removing and modifying of comments; the Malaysiakini had removed the five comments after being alerted by the police; and that the editors of Malaysiakini reviews postings on a daily basis.

Citing Section 114A of the Evidence Act, Rohana also said the judges found that Malaysiakini was presumed in law to have published the five comments, but also highlighted that the presumption could be rebutted.

(Under Section 114A, a person whose name, photograph or pseudonym appears on any publication depicting him to be the owner, host, administrator, editor or sub-editor, or who in any manner facilitates the publishing or republishing of a publication, is presumed to have published or republished the contents of the publication, unless it is proven otherwise.)

As for the attorney general’s failure to issue a show cause notice to Malaysiakini before asking the courts to start the contempt of court proceedings, the Federal Court noted that this failure to comply with procedures as required under the law was “not fatal” or “prejudicial” to Malaysiakini and its editor-in-chief Steven Gan.

Although Malaysiakini had argued that the attorney general should have filed for the contempt of court proceedings at the High Court instead of pursuing it directly at the Federal Court, Rohana said that the panel of seven judges felt that the Federal Court was the right court for the proceedings to start.

When explaining why the contempt of court proceedings could start at the Federal Court, Rohana said this was due to the nature of the five readers’ comments ― that were alleged to be in contempt of the courts ― implicating the judiciary as a whole, which she said also included the “Chief Justice of the Federal Court”. (In the five comments read out in court today, one of them had specifically mentioned the chief justice.)

“Based on these reasons, the application is hereby unanimously dismissed,” Rohana said, referring to Malaysiakini’s application to set aside the Federal Court’s previous decision to grant leave for the case to go on.

The Federal Court said it would hear the actual contempt of court proceedings against Malaysiakini on July 13.

The Federal Court also directed both the attorney general who had wanted Malaysiakini to be cited for contempt, as well as Malaysiakini and its editor-in-chief to not make any comments on this case until a final decision is reached, in order to avoid sub judice. (Sub judice is a term referring to the situation where matters have yet to be decided by the courts and limits public discussions on the matter until it is decided on.)

The other judges on the panel today are Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim, Datuk Seri Mohd Zawawi Salleh, Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, and Datuk Abdul Rahman Sebli.

Malaysiakini had last Thursday filed for an application to set aside the leave granted by the Federal Court for the contempt of court proceedings to proceed.

About the case

On June 16, Attorney General Tan Sri Idrus Harun was reported to have filed an application dated June 15 to initiate the contempt of court proceedings against Mkini Dot Com Sdn Bhd and Malaysiakini’s “Ketua Editor”, over five comments left by its readers on the news portal’s comment section under a June 9 news report titled “CJ orders all courts to be fully operational from July 1”.

Malaysiakini previously said, however, it removed the comments within 12 minutes after it was alerted to these on June 12.

In court papers, the attorney general said that the readers’ comments contained words which Malaysiakini and its “Ketua Editor” should have known were an insult to the judiciary in general and to the chief justice specifically, threatened public confidence towards the judiciary, insulted and tarnished the dignity and integrity of the judiciary.

In his affidavit, the attorney general claimed that the readers’ comments allegedly carried the meaning that the judiciary had “committed wrongdoings, is involved in corruption, does not uphold justice and compromised its integrity”.

The attorney general claimed that Malaysiakini was considered to have published the comments by facilitating their publication, arguing that this amounted to a contempt of court due to the comments’ content and meaning, as well as the comments exceeding the limits of making sincere criticism and allegedly being a demeaning and unwarranted attack on the judiciary.

On June 17, the Federal Court granted leave to the attorney general to start the contempt of court proceedings against Malaysiakini and its chief editor.

Contempt of court can be punished by imprisonment or fine or both, with Malaysiakini having previously noted that there were no legal limits to the imprisonment period or the amount of the fine.

Malaysiakini and its editor-in-chief Steven Gan were represented by lawyers Surendra Ananth, Malik Imtiaz Sarwar, Khoo Suk Chyi, while the attorney general were represented by senior federal counsels Suzana Atan and S. Narkunavathy.

Lawyers that held a watching brief today were Datuk Joy Appukuttan for the Bar Council, New Sin Yew for the International Federation of Journalists and the National Union of Journalists Malaysia, Yusmadi Yusoff for press groups Gerakan Media Merdeka (Geramm) and the Centre for Independent Journalism (CIJ).

File picture of Malik Imtiaz Sarwar speaking to reporters at the Federal Court in Putrajaya June 22, 2018. — Picture by Azinuddin Ghazali
File picture of Malik Imtiaz Sarwar speaking to reporters at the Federal Court in Putrajaya June 22, 2018. — Picture by Azinuddin Ghazali

What the lawyers argued

Earlier today before the Federal Court delivered its decision, Malaysiakini’s lawyer Imtiaz had argued that the attorney general has to show that Malaysiakini had intention to publish the five comments and had knowingly published them, before Malaysiakini could be said in law to have actually published the comments and be held legally responsible for contempt.

Highlighting that the law on contempt of court requires the showing of intention to commit contempt, Imtiaz said however that Malaysiakini did not knowingly publish the comments.

About 2,000 comments are posted daily on Malaysiakini’s website.

Imtiaz noted that Malaysiakini’s comments system allows for its subscribers to have their comments automatically uploaded on to the news portal, while Malaysiakini does not carry out any prior modifications of the comments before they are uploaded and only has a filter to automatically block comments from being posted if certain profanities are detected.

“The important point is that the law in this country does not require online media to pre-censor. There is no legal obligation to do that,” he said when noting that Malaysiakini and news sites were not legally required under the law to moderate comments before they are posted by their readers.

Malaysiakini can however review and take down any comments if alerted by its readers, Imtiaz explained.

Based on the facts of the case which he said the AGC had not disputed, Imtiaz said it was not disputed that both Malaysiakini and Gan had not written and were not involved in the five comments, or that both of them were not actually aware of the comments that were taken down within 12 minutes after the news portal was alerted to them. He said Gan was not involved in the matter.

Imtiaz highlighted that the media’s role was to also generate public discussion, while also accepting that there are limits to the freedom of expression.

Imtiaz argued that finding a site that hosts discussions responsible for contempt would have wider consequences such as having internet service providers (ISPs) possibly even being held responsible simply for providing facilities that enabled comments to be made online, later arguing that the passive role of facilitating a discussion or comments without knowing involvement is not sufficient to show that a person has committed contempt.

Imtiaz also highlighted that the attorney general had failed to comply with written legal requirements — under Order 52, Rule 2B of the Rules of Court — to issue a show-cause notice to Malaysiakini first before seeking leave to start contempt proceedings, pointing out that this was a clear-cut requirement stated in law.

He also noted that the attorney general’s application to start contempt proceedings had also failed to specify Gan’s name and his correct designation as editor-in-chief when such details were important in this quasi-criminal matter, with “Ketua Editor” being a wrong designation.

Imtiaz also argued that the attorney general should not have initiated contempt proceedings at the Federal Court, but should have started the process at the High Court which would allow Malaysiakini the option of going through two tiers of appeals before reaching the Federal Court. Imtiaz said going straight to the Federal Court would mean that Malaysiakini would be denied its statutory right to appeal.

Citing Article 126 of the Federal Constitution which the attorney general relied on to start the contempt proceedings against Malaysiakini, Imtiaz pointed out that it empowers the Federal Court, Court of Appeal or High Court to punish any contempt of itself, but noted that the attorney general had described the five comments as being in contempt of the judiciary as a whole and not specifically the Federal Court itself.

Because of this and to allow Malaysiakini the right to appeal, Imtiaz then urged the Federal Court to decline jurisdiction to hear the case, but with the attorney general to be free to pursue the contempt of court proceedings in the High Court.

Imtiaz also highlighted that contempt cases usually involve those who refuse to take down contemptuous comments or who refused to share information with the authorities, but pointed out that Malaysiakini had immediately taken down the comments after being alerted to them and had also divulged information on those who had posted comments to the police and Malaysian Communications and Multimedia Commission (MCMC).

Imtiaz said the attorney general could instead take the alternative action of seeking information on those who had posted the comments and directly pursue action against them.

Senior Federal Counsel Suzana Atan is pictured at the Federal Court in Putrajaya November 14, 2019. — Picture by Miera Zulyana
Senior Federal Counsel Suzana Atan is pictured at the Federal Court in Putrajaya November 14, 2019. — Picture by Miera Zulyana

The AGC’s senior federal counsel Suzana noted that Malaysiakini was not denying the five comments were contemptuous, further insisting that Malaysiakini had in law published the comments despite their denial of having done so.

Citing Section 114A, Suzana argued that Malaysiakini had “facilitated” the publication of the comments by providing a platform where the public could comment and that Malaysiakini would therefore be presumed in law to have published the comments, arguing that the news portal had sufficient control over the platform and that there was no need to prove intention since it was presumed to have published the comments.

While agreeing there is no law currently requiring Malaysiakini to moderate or pre-censor comments before they are uploaded to the site, Suzana insisted that the news portal should have assumed the responsibility over the service of carrying comments by doing more such as by having moderators to moderate the comments immediately. In this case, Suzana said the comments were present on Malayasiakini’s website for several days before they were notified by police about the comments on June 12.

Admitting that the AGC did not issue any show cause notice to Malaysiakini, Suzana argued that it is not a prerequisite to do so in this case. Suzana said that a show cause notice would usually allow a person accused of being in contempt of court orders to rectify matters by complying with the order, but said the Malaysiakini case was different as the allegedly contemptuous remarks had already been made.

Suzana said that the application to start contempt proceedings was filed at the Federal Court instead of the High Court as the nature of the comments were made against the judiciary as a whole and as one of the comments referred to the highest office of the Istana Kehakiman or Palace of Justice, noting that the comments had made personal attacks and referred to the chief justice.

Imtiaz however later noted that the contempt application made by the attorney general did not refer to the highest office in the judiciary, but referred to the entire judiciary.

On the point of the contempt application having named Malaysiakini’s “Ketua Editor” instead of naming Gan and his actual title as Editor-in-Chief, Suzana argued that “Ketua Editor” was the Malay translation for editor-in-chief.

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