Malaysian Bar calls for scandalising judiciary as form of contempt to be abolished

Newly elected Malaysian Bar president AG Kalidas speaks during a press conference at Malaysia Bar council building March 13,2021. — Picture by Ahmad Zamzahuri
Newly elected Malaysian Bar president AG Kalidas speaks during a press conference at Malaysia Bar council building March 13,2021. — Picture by Ahmad Zamzahuri

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KUALA LUMPUR, Mar 14 — In its 75th annual general meeting (AGM) yesterday, the Malaysian Bar passed a motion calling for scandalising of the judiciary as a form of contempt of court to be abolished.

It also called on the government to enact a Contempt of Court Act, and have the Bar do the needful in helping to draft and ensure that a “just Contempt of Court Act is enacted soonest.”

It also reiterated its call to have Section 114A of the Evidence Act 1950 repealed.

The motion was passed with 258 voting in favour, 23 against, with 30 lawyers abstaining from voting.

“Our Malaysian judges are wise and strong, and they too, like the judges of UK, should no longer fear criticisms of themselves or their decisions by anyone.

“The argument that we are a young democracy, after 60 plus years, should not be used as a reason not to abolish the scandalising the judiciary contempt. This lame excuse has been used in the past to keep bad laws and also not having democratic elections to choose our community leaders, members of the local government (local council) and/or Senators,” the motion paper read.

The motion also referred to the Federal Court verdict against news portal Malaysiakini, which was fined RM500,000 recently, for being in contempt of court over its readers’ comments.

The sentencing by Court of Appeal president Tan Sri Rohana Yusuf of the decision by a panel of seven judges was due to Malaysiakini’s facilitation of five readers’ remarks against the judiciary on its website.

Malaysiakini was found to be guilty under Section 114A of the Evidence Act (Amendment) (No.2) 2012, which presumes Malaysiakini as the publisher of the impugned comments in question.

The five comments were posted under a June 9, 2020 news report titled “CJ orders all courts to be fully operational from July 1” with Malaysiakini having previously said that it was alerted at 12.45pm on June 12 about these comments when police contacted them to notify them about investigations regarding these comments.

In court documents, Malaysiakini previously said it was not aware of the five offensive comments previously as no readers had reported these comments and as the comments did not carry any of the “suspected words” that Malaysiakini’s filter could detect, further noting that the editorial team had immediately reviewed the comments upon being alerted by the police and removed the comments at 12.57pm the same day.

On June 17, the Federal Court allowed the Attorney General to start contempt of court proceedings against Malaysiakini’s operator Mkini Dot Com Sdn Bhd and Malaysiakini’s “Ketua Editor”.

“A perusal of the judgement sees that the Court failed to do an independent comprehensive evaluation of the said five comments to determine whether they were in fact contemptuous or not.

“Just because the alleged contemnor/s admitted, this should not have stopped the court from making a thorough analysis and determination of whether it was in fact contemptuous or not.

“In this case, the draconian Section 114 of the Evidence Act was used,” the motion read, adding that there had been many calls to repeal the said provision, after it came into force on July 7, 2012.

The motion said that the said Section shifts the burden of proof to the alleged contemnor, when rightfully, it should remain on those who allege, more so when it concerns posts or statements made by third parties.

It said that the burden should not be limited to making statements, but also the intention (mens rea).

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