ON HUMAN RIGHTS, JUSTICE AND PEACE ISSUES, LABOUR RIGHTS, MIGRANT RIGHTS, FOR THE ABOLITION OF THE DEATH PENALTY, TOWARDS AN END OF TORTURE, POLICE ABUSES, DISCRIMINATION...
CONTEMPT OF COURT ACT - this is what we need fast. The Act will not just tell us what is considered 'contemptuous' and is against the law, and it will also tell us what is the sentence if found guilty. Malaysiakini fined RM500,000 - will someone else be fined RM5 million?
Remember, after Malaysiakini's decision - all of US are at risk - all who own/have 'social media accounts', where people can respond and place comments ... Tomorrow, it may be YOU who is found guilty of contempt for posts/comments of 3rd parties...and fined RM500,....
Malaysiakini Editor-in-Chief, Steven Gan - Bernama
PETALING JAYA:
A new legislation that clearly defines what is considered a
contemptuous comment and who should be responsible for it is essential
to ensure fairness.
Otherwise, media owners and individuals who
hold social media accounts will be unfairly penalised for views aired by
their readers, according to lawyers theSun spoke to yesterday.
They
pointed out that in an age when views can be easily aired to all and
sundry, it is near impossible for media owners or individuals who have
their own social media platforms and blogs to vet every post.
Holding
them responsible for every post on their sites is unwarranted given
that some social media users, bloggers and media owners may not even
have the capacity to moderate all comments posted on their sites, they
pointed out.
They
were commenting on the guilty verdict delivered by the Federal Court
against Mkini Dotcom Sdn Bhd and the RM500,000 fine imposed on the media
company for facilitating the publication of readers’ comments.
The
seven-member bench led by Court of Appeal President Tan Sri Rohana
Yusof ruled against the company, which owns the malaysiakini news
portal, by a 6-1 majority.
Human rights lawyer Charles Hector
pointed out that social media platforms such as Facebook and Twitter, as
well as blogs, have a section that enable readers to post comments on
other individuals’ accounts.
“However, not every one of us who
has a Facebook or Twitter account have the capacity to moderate all the
comments that are posted on our accounts,” Hector said.
“Holding the owners of these social media accounts responsible for those comments is therefore unfair.”
Bar Council president Salim Bashir said the issue can be addressed by repealing the Evidence Act that was gazetted in 2012.
In
a recent post, law firm Thomas Philip Advocates and Solicitors pointed
out that the section gives rise to the presumption that “an internet
posting ... by someone using (another) person’s name, photograph or
pseudonym as an author or reposter is deemed to have been published by
the owner of the said name, photograph or pseudonym”.
“This means
that someone using a name and/or photograph of another (person) can
cause the true owner of the media to be liable for any content
published,” it added.
As Salim explained, under Section 114A of
the Act, “it is also presumed that you have knowledge of the contents
(on your social media account) if you are the owner of that account”.
“The
Bar has repeatedly raised the issue of repealing Section 114A. Any
decision made under this section will impute legal responsibility on all
social media platform owners, be they individuals or companies, that
provide a platform for readers to post their comments,” he said.
Salim
said the Federal Court decision also meant that social media platform
owners, be they individuals or companies that provide a facility for
readers to air their views, can also be held responsible for those
comments.
He said the majority decision of the Federal Court
“seems to imply constructive knowledge is sufficient to prove
publication in the context of contempt”.
“This is a cause for
concern, because even if steps are taken to remove the comments,
liability can still be attached to the news portals or social media
owners,” Salim added.
The Bar had previously called for the
Communications and Multimedia Ministry and the Malaysian Communications
and Multimedia Commission to set up an interim task force with the help
of civil society, industry players and technology experts to address the
issue. - The Sun Daily, 22/2/2021
Some countries already have Contempt of Court Acts ...but not Malaysia
United Kingdom - The Contempt of Court Act 1981 is an Act of the Parliament of the United Kingdom.[1] It codifies some aspects of the common law offence of contempt of court
INDIA - THE CONTEMPT OF COURTS ACT, 1971ACTNO. 70 OF1971 - An Act to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto
Amnesty International and Asylum Access Malaysia, in my opinion, must commence a formal Contempt of Court application - thus giving the opportunity for the court to consider and decide.
To expect the court(the Judge) to initiate on its own contempt proceedings against the the DG of Immigration and government is possible but will the court do this on their own...
Will the Attorney General initiate contempt proceedings like what he did for the Malaysiakini case. Noting that the AG also is the 'government's lawyer', the chances may be slim..
THE CONTEMPT OF COURT here, is very different from the Malaysiakini contempt..
Here, there is a COURT ORDER - and despite the court order, the 1,086 'undocumented migrants' were send back to Myanmar(Burma) - The order was not vague...it was clear. It was simply do not send the 1,200 from Malaysia ... The worry, how many of those send back were legitimate REFUGEES or Asylum Seekers - they were sent back to the country they were fleeing from...
Refugees are people who have fled war, violence, conflict or
persecution and have crossed an international border to find safety in
another country....The 1951 Refugee Convention is a key legal document and defines a refugee as: “someone who is unable or unwilling to return to their country of
origin owing to a well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group, or
political opinion.”
The Malaysiakini contempt was very different - that was an archaic contempt of 'scandalizing the court/judiciary' - it concerned expressions about judges/courts generally... This 'scandalizing the court/judiciary' contempt, by the way, has been abolished in UK.
This issue of 'breaching the court order' and sending out of Malaysia was raised in court on 24/2/2020.
23/2/2021 - High Court judge Datuk Seri Mariana Yahya granted a stay
order to temporarily suspend the government’s plans to deport the 1,200
Myanmar citizens, as she was to hear the lawsuit morning of 24/2/2021 at 10am.
23/2/2021 - Immigration Department of Malaysia yesterday announced — just
hours later after the court’s stay order was issued — that it had along
with other Malaysian authorities and the Myanmar embassy successfully
repatriated 1,086 Myanmar citizens whom it described as “illegal
immigrants” to Myanmar.
24/2/2021 - High
Court hears lawsuit filed through judicial review by rights
group Amnesty International Malaysia and Asylum Access Malaysia.
-Extension of the Interim Stay granted yesterday is allowed
for the remainder from the 1,200 who have not been deported till March
9.
When the breach of the court order was raised, it is reported that the Judge said will deal with it on March 9th...
...that the issue of the Malaysian government’s
deportation of the 1,086 individuals — despite the court’s stay order
yesterday — was raised in the hearing today, but said the High Court
will first decide on the application for leave for judicial review
before deciding whether to ask for an explanation on the deportation
move yesterday....
Did Malaysia send back to the country they fled from REFUGEES and asylum seekers? What happened to the CARING Malaysian government - comparatively the former BN and PH PLUS government was more caring -- compared to PM Muhyiddin's PN Plus government (made up of UMNO, PAS, BN, Gerakan, etc...).
I believe that the court application was, amongst others, to give the UNHCR(UN Refugee Agency) opportunity to vet these undocumented migrants to determine who were 'refugees' or 'asylum seekers' before sending them back to Burma/Myanmmar - after that, Malaysia could send all the just 'undocumented migrants' back to their home countries - I think that was reasonable, and certainly will ensure that Malaysia not send back to countries of origin persons who really are refugees and asylum seekers.
Malaysia really must have a Malaysian law enacted on REFUGEE, ASYLUM SEEKERS AND STATELESS PERSONS - the law will not only recognize these categories of persons in Malaysia, but will also provide clear procedure in how Malaysia deals with them. It may also provide for rights/restrictions imposed on this category of persons. Then, Malaysia, without reliance of UNHCR, through this law's enforcement bodies speedily determine WHO really are refugees/asylum seekers and/or stateless persons, and what to do with them.
HAS THERE BEEN ANY APOLOGY?
APOLOGY - Did the DG of Immigration and the government of Malaysia apologize yet to the Court for disobeying the court order? Was there even an 'explanation' why they still send them off despite the court order? - from what I saw, the post repatriation statement did not even mention any court order...
Will the Federal Counsel at court may now suddenly take the BLAME - maybe he 'failed' to tell the government or DG Immigration of the order fast enough, before the people were already sent off beyond Malaysia's jurisdiction...
This is a matter that cannot be 'swept under the carpet' - Do government have to obey court orders? Does the fact that Malaysia is under EMERGENCY mean that the government does not have to OBEY court orders?
ISSUES
- Is the Malaysian government and the Immigration Department FREE to ignore Court Orders?
- What is the COURT's response when its orders are disobeyed by the Immigration Department and Government?
- If the government and/or its officers are NOT BOUND by Court Orders, then ...
As it is, in my opinion, it may be best for the applicants to initiate contempt proceedings now, without hoping for others to do it.
Once this is done, then we get a chance to see what the Court does - will leave for contempt proceedings be granted? Will the Court find the action of sending away some of the 1,200 despite a court order a 'contempt of court' or not?
What the Malaysian Judiciary does now will impact perception?
After 1,086 Myanmar nationals
repatriated, High Court extends order to suspend further deportations
until March 9 decision on lawsuit
Wednesday, 24 Feb 2021 02:07 PM MYT
BY IDA LIM
An aerial view of the Kuala Lumpur High Court April 23, 2020. — Picture by Hari Anggara
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KUALA LUMPUR, Feb 24 — The High Court here today stayed the Malaysian
government’s deportation of the remainder of the original 1,200 Myanmar
nationals referred to in a lawsuit until the matter was decided.
Yesterday, High Court judge Datuk Seri Mariana Yahya granted a stay
order to temporarily suspend the government’s plans to deport the 1,200
Myanmar citizens, as she was to hear the lawsuit this morning at 10am.
The Malaysian government had been planning to repatriate the 1,200
Myanmar citizens on three navy ships provided by the Myanmar military
yesterday afternoon.
The Immigration Department of Malaysia yesterday announced — just
hours later after the court’s stay order was issued — that it had along
with other Malaysian authorities and the Myanmar embassy successfully
repatriated 1,086 Myanmar citizens whom it described as “illegal
immigrants” to Myanmar.
This morning, in an online hearing from 10am to about 1pm, the High
Court had heard the lawsuit filed through judicial review by rights
group Amnesty International Malaysia and Asylum Access Malaysia.
The hearing was on the leave for judicial review application by both Amnesty International Malaysia and Asylum Access Malaysia.
Following the hearing, the two groups’ lawyer New Sin Yew told Malay Mail that the High Court has fixed March 9 to deliver its decision on the leave application.
“Meanwhile extension of the Interim Stay granted yesterday is allowed
for the remainder from the 1,200 who have not been deported till March
9,” he said.
New confirmed that the issue of the Malaysian government’s
deportation of the 1,086 individuals — despite the court’s stay order
yesterday — was raised in the hearing today, but said the High Court
will first decide on the application for leave for judicial review
before deciding whether to ask for an explanation on the deportation
move yesterday.
New told Malay Mail that the Attorney General’s Chambers
(AGC) had in the online hearing today objected to the application for
leave for judicial review by Amnesty International Malaysia and Asylum
Access Malaysia, based on the grounds of whether the court has
jurisdiction to hear the lawsuit and whether the two groups had locus
standi or legal standing to file such a lawsuit.
In the judicial review application filed on February 22 by Amnesty
International Malaysia and Asylum Access Malaysia via applicants Asylum
Access Berhad and Aimal Sdn Bhd, the three respondents named were the
Malaysian Immigration director-general, the home minister and the
federal government.
The judicial review bid by Amnesty International Malaysia and Asylum
Access Malaysia includes the names and details of three United Nations
High Commissioner for Refugees (UNHCR) document holders and 17 minors
who had at least one parent still in Malaysia.
The two groups had wanted the court to cancel the respondents’
decision to deport the three UNHCR document holders recognised as
refugees, quash the respondents’ decision to deport the 17 children, and
quash the respondents’ decision to deport the 1,200 detained Myanmar
nationals back to their home country.
The two rights groups also asked the court to issue three separate
prohibition orders against the respondents disallowing the deporting of
the three UNHCR-recognised refugees, the 17 children and the 1,200
persons.
Today, New confirmed that the lawyers for Amnesty International
Malaysia and Asylum Access Malaysia do not have information yet on who
were the 1,200 Myanmar nationals who had been detained and which of them
were part of the 1,086 deported yesterday to Myanmar, also confirming
that the lawyers do not yet have information on the exact time of
deportation yesterday of the 1,086 individuals.
The current status of the 17 children and the three UNHCR-recognised
refugees named and listed in the lawsuit are unknown for now, with no
information yet on if they were or were not part of the 1,086 deported
yesterday.
New also said lawyers for the two rights groups had during the online
hearing today said that the Malaysian government should disclose
information on who were the 1,200 Myanmar nationals who had been
detained and which of them were part of the 1,086 persons deported
yesterday.
In the initial stay order issued by the High Court yesterday and sighted by Malay Mail,
it had specified the names of the 17 children and the three
UNHCR-recognised refugees and also referred to the 1,200 individuals
collectively.
The High Court had in the stay order yesterday ordered a suspension
of the respondents’ decision or action to deport the three to Myanmar,
as well as the suspension of similar decisions or actions by Malaysian
authorities to deport the 17 children to Myanmar, and the suspension of
similar decisions or actions to deport the 1,200 other individuals,
until the court decides on the application for leave for judicial
review.
The Immigration Department’s announcement yesterday on the
deportation of the 1,086 persons did not say what time the repatriation
exercise was carried out or completed, and did not touch on the lawsuit
or the stay order granted yesterday.
The Immigration Department had however insisted that the 1,086
Myanmar citizens were repatriated to Myanmar voluntarily without being
forced to do so by everyone, also asserting that those of the Rohingya
ethnicity or asylum seekers were not part of the 1,086 deported. The
1,086 had been detained in immigration detention centres nationwide
since 2020, the department had said.
The Malaysian authorities’ move yesterday to deport the 1,086
individuals despite an unresolved court case has drawn stern criticism,
including from federal Opposition MPs, as well as human rights groups.
Amnesty International Malaysia yesterday highlighted the
uncertainties and risks that the 1,086 would face upon their return amid
political uncertainties in Myanmar, noting that the UNHCR has been
denied access to Malaysia’s immigration detention centres since August
2019 and was not given a chance to access the 1,200 to check if any of
them are registered refugees or asylum seekers. - Malay Mail, 24/2/2021
Malaysia Under Fire After Myanmar Deportation
An immigration truck carrying Myanmar
migrants from Malaysia back to their homeland, is seen heading towards
the Naval base in Lumut, outside Kuala Lumpur on 23 February, 2021. (AFP
Photo)
The United States (US) on Wednesday led criticism of Malaysia for
deporting more than 1,000 Myanmar nationals back to their military-ruled
nation in defiance of a court order.
The migrants, who activists say include vulnerable asylum seekers,
departed Tuesday on Myanmar navy ships from a Malaysian military base
just weeks after a coup.
Rights groups had fiercely criticised the plan, and hours before the
deportation the Kuala Lumpur High Court ordered it be temporarily halted
to allow a legal challenge from activists.
The United States, which under President Joe Biden has ramped back up
refugee admissions and sought to rally pressure to reverse Myanmar's
coup, said it was "concerned" by the move by Malaysia, with which
Washington has enjoyed largely friendly relations in recent years.
State Department spokesman Ned Price said that the military in
Myanmar, also known as Burma, "has a long-documented history of human
rights abuses against members of religious and ethnic minority groups".
Price noted that Malaysia went ahead "in spite of a Malaysian court
order barring their deportation and in light of ongoing unrest in Burma
that of course has been taking place since the coup".
"We continue to urge all countries in the region contemplating
returning Burmese migrants back to Burma to halt those repatriations
until the UNHCR can assess whether these migrants have any protection
concerns," Price told reporters in Washington, referring to the UN
refugee agency.
Officials offered no explanation as to why they ignored the court's instructions and sent back the 1,086 migrants.
'Dangerous Deportations'
In a joint statement, four opposition lawmakers condemned the
"inhumane" deportation and suggested government officials could be held
in contempt for ignoring the legal ruling.
"This act... is a clear display that the Malaysian government does
not respect the ongoing court process and has put Malaysia in a bad
light on the human rights front," they said.
Amnesty International, one of the groups that challenged the
deportation, said the government "owes an explanation to the people of
Malaysia as to why they chose to defy the court order".
"These dangerous deportations have not been properly scrutinised and
put individuals at grave risk," said Katrina Jorene Maliamauv, executive
director of Amnesty's Malaysia office.
More than 100 migrants originally to be deported are believed to have
been left behind, with officials offering no explanation as to why. On
Wednesday the High Court ruled those remaining should not be sent back
as NGOs challenge the repatriation.
Malaysian immigration officials insisted there were no members of the
persecuted Rohingya minority - not recognised as citizens in Myanmar -
or asylum seekers among those repatriated.
But rights groups have raised doubts over authorities' claims there were no asylum seekers among the deportees.
Authorities have since 2019 blocked the UNHCR from immigration
detention centres, meaning they cannot assess which migrants have
genuine asylum claims and should be allowed to remain in Malaysia.
It is rare for NGOs to challenge repatriations but in the latest
case, they were particularly concerned about the worsening human rights
situation in Myanmar since the coup. - AFP - The ASEAN Post, 25/2/2021
EU, US, rights groups criticise Malaysia for deportations to Myanmar
A
bus carrying believed to be Myanmar migrants is seen heading towards
the Naval base in Lumut, outside Kuala Lumpur, on Feb 23, 2021. PHOTO: AFP
KUALA LUMPUR (REUTERS, AFP) - The European Union on Thursday (Feb
25) joined the United States in expressing concern over Malaysia’s mass deportation this week of Myanmar nationals after a military coup in defiance of a court order halting the plan.
Rights groups had fiercely criticised the plan, and hours before the
deportation the Kuala Lumpur High Court ordered it be temporarily halted
to allow a legal challenge from activists.
The European Union said it "deeply regretted" Malaysian authorities’
move to proceed with the deportation despite the court order and was
also concerned by the use of naval vessels.
"We would have expected the Malaysian authorities to respect the
decision of the Malaysian court, and we stress the importance of respect
for international law and the principle of non-refoulement," a EU
spokesperson told Reuters.
The bloc said it had earlier urged Malaysia to drop the plan.
The United States, which under President Joe Biden has ramped back up
refugee admissions and sought to rally pressure to reverse Myanmar's
coup, said it was "concerned" by the move by Malaysia, with which
Washington has enjoyed largely friendly relations in recent years.
State Department spokesman Ned Price said that the military in
Myanmar, also known as Burma, "has a long documented history of human
rights abuses against members of religious and ethnic minority groups".
Mr Price noted that Malaysia went ahead "in spite of a Malaysian
court order barring their deportation and in light of ongoing unrest in
Burma that of course has been taking place since the coup".
"We continue to urge all countries in the region contemplating
returning Burmese migrants back to Burma to halt those repatriations
until the UNHCR can assess whether these migrants have any protection
concerns," Mr Price told reporters in Washington, referring to the UN
refugee agency.
Officials offered no explanation as to why they ignored the court's instructions and sent back the 1,086 migrants.
In a joint statement, four opposition lawmakers condemned the
"inhumane" deportation and suggested government officials could be held
in contempt for ignoring the legal ruling.
"This act... is a clear display that the Malaysian government does
not respect the ongoing court process and has put Malaysia in a bad
light on the human rights front," they said.
"These dangerous deportations have not been properly scrutinised and
put individuals at grave risk," said ms Katrina Jorene Maliamauv,
executive director of Amnesty's Malaysia office.
More than 100 migrants originally to be deported are believed to have
been left behind, with officials offering no explanation as to why. On
Wednesday the High Court ruled those remaining should not be sent back
as NGOs challenge the repatriation.
Malaysian immigration officials insisted there were no members of the
persecuted Rohingya minority - not recognised as citizens in Myanmar -
or asylum seekers among those repatriated.
But rights groups have raised doubts over authorities' claims there were no asylum seekers among the deportees.
A Myanmar Navy vessel, which will be used to pick up
deported Myanmar migrants from Malaysia, is docked at a jetty in
Lumut, Malaysia, on Feb 22, 2021. PHOTO: REUTERS - Straits Times, 25/2/2021
Recently it was reported that the 'undocumented migrants' were deported to Myanmar despite a court order asking that the deportation be stayed temporarily - well, this may be a CONTEMPT OF COURT. The facts are still unclear, and we must wait for the full facts before commenting further....
Even the government MUST respect Court Orders....Will the DG of Immigration be facing yet another CONTEMPT OF COURT action? The last time, I believe, this happened was in 2001 - Leave was granted in July, and it ended with a Consent Order recorded after several days of hearings - after an admission, and agreement to remedy consequences....
Yes, the DG OF IMMIGRATION Malaysia had previously been subject to contempt proceedings in 2001, whereby this action was initiated by Migrant Workers from India - It was an HISTORIC OCCASION, for very seldom in the Commonwealth have we heard of contempt proceedings against Ministers or Director Generals of government departments.. What was be taken noted here, that Malaysia has a case where CONTEMPT proceedings have been commenced against the Director General of Immigration, where leave was granted - and the contempt action was successful.
The workers' ordeal began 20 months ago when they initiated a lawsuit
against their former employer, Gopis Construction Sdn Bhd, whom they
alleged failed to pay them their wages.
They then applied to the Immigration Department for permission to work
on their own or alternatively be transferred to another employer.
On Dec 6 last year, the High Court ordered the Immigration Department
to issue temporary work permits to the workers to enable them to work
legally for a construction company, Central Generative Sdn Bhd....
In the earlier court order, the DG Immigration had agreed to issue work permits to the migrant workers to enable them to work for a different employer and stay legally in Malaysia.... but then the Immigration Department issued permits that already lapsed on receipt, or almost would lapse. This led to the initiation of contempt proceedings.[These migrants were then battling the previous employer in the Seremban Labour Court for unpaid wages, monies, etc...]
The workers claim that the Director-General of Immigration issued
permits on April 19, but 13 of the permits had lapsed in January and
February this year while the rest lapsed on July 8.
The workers are now seeking leave to commence contempt proceedings
against the former Director-General of Immigration Aseh Che Mat and five
other Immigration Department officers for failing to comply with the
High Court order.
Their application was filed at the High Court last week and will be heard on July 25.
On 24/7/2001, Leave was obtained by the workers to commence contempt proceedings against the Director General of Immigration.
On 10/4/2002, after a lengthy battle, the DG acknowledged their mistake, and agreed to issue new work visas to the workers, and not inhibit a subsequent renewal. The fact that the DG is a public officer, the court was of the opinion that imprisonment and/or fine may not be an appropriate sentence. Fine would be taking monies out of one pocket of the government and paying into another. The only punishment would be COST.
Because consent judgment was recorded, we do not have a written published grounds of judgment, which certainly would have aided courts when dealing with future cases or similar issues.
In the current case, I believe that the Applicants can commence contempt proceeding ...even our Attorney General can commence contempt proceedings.
The Attorney General initiated contempt proceedings words/expression about judges/judiciary in the Malaysiakini case, now this time the CONTEMPT is more serious for it is violation of a COURT ORDER - hopefully, the AG will also look into this matter and consider whether contempt proceedings should be issued against the DG of Immigration, Immigration Department and/or government of Malaysia...What will happen? What will happen?
Of course the relevant Ministers and even the Prime Ministers may have their own 'justification' for what they did...but things are very different when there is COURT ORDER, that allegedly ordered that these migrants not be deported temporarily until maybe the court hears the full application ...as mentioned earlier, we are waiting for the disclosure of more facts. Was the lawyer representing the Immigration Department and/or Government in Court when the order was made? Were they aware of the order? Were they aware of the application before court?...many questions...not enough answers,,,
BY IDA LIM An immigration truck carrying Myanmar migrants to be deported from Malaysia is seen in Lumut February 23, 2021. — Reuters pic
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KUALA LUMPUR, Feb 23 — The Immigration Department of Malaysia has announced that it has deported 1,086 Myanmar citizens, whom it described as illegal immigrants today, with the announcement made just hours after a High Court’s order to temporarily suspend any efforts to deport 1,200 individuals to Myanmar for one day.
In a statement this evening, Immigration Department of Malaysia’s (JIM) director-general Datuk Khairul Dzaimee Daud said the department had along with the cooperation of the Malaysian Armed Forces — particularly the Royal Malaysian Navy, the National Task Force (NTF) and the Myanmar Embassy — successfully carried out the programme today to repatriate the 1,086 individuals.
The statement did not say what time the repatriation exercise for the 1,086 persons was carried out or completed today.
He said that all these 1,086 Myanmar citizens have been detained in immigration detention centres nationwide since 2020, and that they were sent back to Myanmar via three Myanmar navy ships through the Malaysian navy’s base in Lumut, Perak.
“JIM wishes to stress that all detainees that were repatriated are Myanmar citizens who are illegal immigrants and do not involve the Rohingya ethnicity or asylum seekers. All of them who were repatriated had agreed to return voluntarily without force from any quarters,” he said in the statement posted on the department’s Facebook page.
Khairul Dzaimee said the repatriation exercise is part of the Immigration Department’s continuing process to deport detainees held at Malaysia’s immigration detention centres, adding that such deportation efforts had slowed in 2020 as many countries had closed their borders.
He went on to say that the Immigration Department will continue efforts through the Home Ministry and Wisma Putra or the Foreign Ministry to obtain the agreement of related countries such as Vietnam, Indonesia, and Bangladesh to repatriate their citizens who were currently detained in Malaysia’s immigration detention centres in large numbers.
His statement did not touch on the High Court’s order, or the ongoing lawsuit filed by two human rights groups who were seeking to stop the Malaysian government’s deportation of 1,200 individuals to Myanmar.
About the High Court order and the lawsuit
Just hours before the Immigration Department released the statement on Facebook, the High Court in Kuala Lumpur had today granted a temporary stay order to suspend the government’s plans to deport the 1,200 Myanmar citizens, as the court would hear the lawsuit tomorrow morning in Kuala Lumpur.
Yesterday, Amnesty International Malaysia and Asylum Access Malaysia had jointly filed for judicial review, following the United Nations High Commissioner for Refugees’s (UNHCR) confirmation that at least six persons registered with the UN agency were among those scheduled to be deported this afternoon.
Based on court documents sighted by Malay Mail, Asylum Access Malaysia and Amnesty International Malaysia had as Asylum Access Berhad and Aimal Sdn Bhd filed for judicial review against three respondents, namely the immigration director-general, the home minister and the government of Malaysia.
The judicial review bid by Amnesty International Malaysia and Asylum Access Malaysia includes the names and details of three UNHCR document holders and 17 minors who had at least one parent still in Malaysia.
In the court documents, the court orders sought by the two groups are for a quashing of the respondents’ decision to deport the three UNHCR document holders which had been recognised as refugees by the UNHCR, and a quashing of the respondents’ decision to deport the 17 children, and a quashing of the respondents’ decision to deport the 1,200 Myanmar nationals who were detained in immigration detention centres to Myanmar, as well as three separate prohibition orders against the respondents to disallow the deporting of the three UNHCR-recognised refugees, the 17 children and the 1,200 persons.
According to an online listing of the case, Amnesty International Malaysia and Asylum Access Malaysia’s joint application for leave for judicial review is set to be heard through video-conferencing tomorrow by High Court judge Datuk Seri Mariana Yahya.
Earlier today in a joint statement by Amnesty International Malaysia and Asylum Access Malaysia, Amnesty International Malaysia’s executive director Katrina Jorene Maliamauv said that the 1,200 individuals include some holders of valid UNHCR documents, asylum seekers and children separated from their parents who are still in Malaysia.
“In light of the court ruling, the government must respect the court order and ensure that not one of the 1,200 individuals is deported today.
“Instead, it must grant access to UNHCR to all 1,200 individuals and all immigration detention centres in general, which the government has denied since August 2019.
“This would enable the UN agency to verify asylum claims and identify refugees already registered,” she had said. - Malay Mail, 23/2/2021
A group of 36 Indian migrant workers who claim to have 'been deceived'
by the Immigration Department today appealed to the Human Rights
Commission (Suhakam) to assist them in getting valid work permits.
Fourteen of the workers representing the group handed over a memorandum
to commissioner Harun Hashim at the Suhakam office this morning.
They were accompanied by their lawyers Charles Hector and Roland Engan
as well as the director of Central Generative Sdn Bhd, Mohd Ali Abdul
Wahid.
Their memorandum stated that their rights as workers had been violated
by 'the delay and dishonesty of the Immigration Department' which they
alleged issued them with expired work permits.
"We appeal to Suhakam to help us get our permits, noting that we have
already paid the necessary levy and that what we are asking for is
something that has already been ordered by the Kuala Lumpur High Court,"
the workers' spokesman Rajakannu Boopathy said.
He added that the delay by the Immigration department had deprived the
group of their right to work legally in the country and had also
resulted in several of the workers being arrested by police and
detained at illegal immigrant detention camps.
Temporary work permit
Harun informed the workers that he will hand over the memorandum to the
other Suhakam commissioners before deciding on a course of action.
"I can't decide on this issue on my own. This (memorandum) will go
before the commission and we will conduct an initial enquiry to
establish whether there should be a public enquiry," Harun said.
A copy of the memorandum was also handed over to the Bar Council this afternoon.
The workers' ordeal began 20 months ago when they initiated a lawsuit
against their former employer, Gopis Construction Sdn Bhd, whom they
alleged failed to pay them their wages.
They then applied to the Immigration Department for permission to work
on their own or alternatively be transferred to another employer.
On Dec 6 last year, the High Court ordered the Immigration Department
to issue temporary work permits to the workers to enable them to work
legally for a construction company, Central Generative Sdn Bhd.
Contempt proceedings
The workers claim that the Director-General of Immigration issued
permits on April 19, but 13 of the permits had lapsed in January and
February this year while the rest lapsed on July 8.
The workers are now seeking leave to commence contempt proceedings
against the former Director-General of Immigration Aseh Che Mat and five
other Immigration Department officers for failing to comply with the
High Court order.
Their application was filed at the High Court last week and will be heard on July 25.
According to Charles Hector, existing laws in the country only allow
migrant workers to complain against their employers for violation of
their rights but do no provide a mechanism for the worker to continue to
work and earn legally in Malaysia.
"It is thus unfeasible for them to commence legal action," he said
adding there was also no clear law and penalties against employers who
violated migrant workers' rights.
"For example, an employer must provide the Immigration Department with a
contract of employment as a condition for the issuance of the work
permit (the expatriate identification pass), but when the employer fails
to pay wages according to that contract, the department does not
penalise the employer.
"There is no enforcement against employers. In fact, these workers'
former employer, despite all his violations, is not blacklisted and
continues to be given permits to recruit migrant workers," Hector said.
Required skills
Central Generative director Mohd Ali told
malaysiakini
that his company was incurring high costs due to the Immigration department's delay in issuing the worker's permits.
He said that the workers' levy fees amounting to more that RM40,000 was
being borne by the company as the workers had entered a two-year
contract with the company on Dec 6 last year, after the High Court
order.
"We can't just leave these workers alone now after having invested so
much in them. Furthermore, we have a lot of job opportunities and we
need these workers who have the skills required.
"But we are suffering together with them because they can't work without the permits," Mohd Ali said.- Malaysiakini, 16/7/2001
NEWS
Immigration, migrant workers told to settle dispute out of court
The High Court today told a group of Indian migrant workers and the
Immigration Department to come to an amicable settlement over their
dispute in the delay of issuing work permits.
Judge Faiza Thamby Chik, who was to have heard contempt proceedings
against the department for not adhering to an earlier court order, told
counsels representing both parties to "sit down and discuss the
settlement".
He then adjourned the hearing to Nov 26.
Charles Hector, the lawyer representing the migrant workers, later told
reporters that he had to discuss with his clients over their next
course of action.
"We have not agreed to a settlement at the moment. I have to get instruction from my clients on the matter.
"However, we still feel that we should go on with the proceedings as
the (Immigration) department has yet to issue the work permits promised
to us. Furthermore, we are concerned with the costs incurred in the
filing of this proceedings," he said.
On July 24, the 27 workers had initiated contempt proceedings against
the Immigration Department, its former director-general Aseh Che Mat and
five other officers for failing to heed a court ruling over the
issuance of work permits.
On Dec 6 last year, the High Court ordered the department to issue
temporary work permits to the workers to enable them to work legally for
a construction company, Central Generative Sdn Bhd.
Re-issue permits
The workers claimed that the former DG eventually issued permits on
April 19, but 13 of the permits lapsed in January and February this year
while the rest lapsed on July 8.
Later, when the workers filed their application for contempt
proceedings on July 24, the department reissued one-year work permits
from April 19.
The workers are however seeking for permits to be issued from July this year.
"We will lose out on three months with the April 19 permits as they were only issued on July 25.
"Yesterday, the department informed the workers' current employer that
they will re-issue permits from July 31, but until now, they have yet to
do so," said Hector.
The Immigration Department was represented by federal counsel Mohd Abazafree Mohd Abbas.
Meanwhile, the workers are also seeking costs and compensation for
their ordeal and court proceedings. The High Court is scheduled to hear
the negligence suit on Sept 6. - Malaysiakini, 15/8/2001
Covid-19 vaccination - this is an issue that has attracted much interest, but the government(the Ministry of Health really need to increase efforts on public education. Individual persons must made informed choices not simply as to be vaccinated, but also WHICH vaccine? This is my own opinion.
From my reading, the many different vaccines and many different concerns - I believe a reading of this article by Dr Kumar may expand our knowledge and influence of decision making...
Will I be getting the vaccine as the Ministers and 'more important' people getting...or am I OK with some other kind of vaccine? Am I part of testing a new vaccine - or am I getting a vaccine already tested and known to be safe..
Many issues...many questions ---OR do we simply just 'Oh...shut up, just do as the government tells you...Full stop.. After all, the government knows best...'
Read on - ultimately the CHOICE is yours...I am just sharing Dr Kumar's article, and I am not sure about the accuracy or 'credibility' of the information...so just read, and decide for yourself....who will most likely be considering various other inputs on the same subject matter..
For me personally, I do know Dr Kumar...and I trust him and will consider his views seriously...
Other concerns - Are we affected by personal biases, sometimes generated by certain Media? Are there politicians 'pocketing monies' from pharmaceutical companies, to influence their countries to get vaccines from this and that company? Is 'money-making' or other irrelevant considerations influencing government decisions making in this public health issue?
*Coronavirus Vaccines*
_By Dr Jeyakumar Devaraj_
It is quite clear that we need to use the Covid vaccine to overcome the coronavirus pandemic.
If
a significant portion of our population were to be immune – even if
partially or for a period of one or two years – then the rate of
transmission of the coronavirus would drop.
That
would mean we can reduce the level of physical distancing, and more
people can return to their jobs and businesses, and our economy can
begin recover.
Close to
60 Covid vaccines are being developed, and a few are already being
administered on a mass basis. But it is important to do it right and to
make sure that the ‘cure’ doesn’t cause new health problems.
Vaccines
work by presenting a viral protein or proteins to the subject to coach
the subject’s immune system to develop antibodies that can neutralise
the real virus if and when the real virus attacks the subject.
*We can divide the Covid vaccines intotwo main groups:*
Vaccines that use inactivated Covid viruses or laboratory-manufactured Covid protein to stimulate this immune response.
Vaccines
that use a new technology that makes the subject’s own body produce the
Covid protein that then stimulates the subject’s immune system to
produce the neutralising antibodies
*‘Old-tech’ Vaccines*
The
first group of Covid vaccines relies on old and tested vaccine
technology that we have been using for the past 50 years to produce
vaccines for various diseases.
The medical community is familiar with the potential downsides of this first group.
These include insufficient inactivation of the virus, which means the virus is still able to replicate in the subject’s body.
Side
effects may occur due to the chemicals used to inactivate the virus or
due to the various adjuvants used to enhance the body’s reaction to the
viral protein. (Aluminum is one of the adjuvants used to “irritate” the
immune system.)
*More sophisticated vaccines*
The
second group of Covid vaccines comprise RNA or DNA which instruct our
cells to make the Covid-spike protein when this genetic material is
injected. This approach is new and has not been used in the production
of any vaccines for a mass vaccination campaign.
This
‘canggih’ (sophisticated) approach involves injecting the genetic code
for the Covid spike protein into the subject’s body. This genetic code
enters the subject’s cells and tricks the subject’s ribosomes to produce
thousands of copies of the Covid spike protein.
Ribosomes
are the organelles within our cells that produce proteins, as
instructed by the nucleus of the cell. The nucleus sends out messenger
RNA to the ribosomes to tell it what type of protein to produce.
These modernistic Covid vaccines rely on messenger RNA that code for the Covid protein.
In
the Pfizer and Moderna vaccines, the messenger RNA (mRNA) that codes
for the Covid spike protein is put in minute phospholipid capsules, and
many of these capsules are injected into the subject.
These
capsules circulate in the blood and slip into certain cells in the body
where the mRNA instructs the ribosomes of these cells to manufacture
the Covid spike protein.
Some
of these spike protein molecules extrude from the cells into the
bloodstream and catch the attention of the immune system, which then
produces antibodies against these spike proteins. The spike proteins
sticking out of the “infected” cells also induce killer lymphocytes to
attack and kill these cells.
It
is possible that these modern vaccines are more effective than the
traditional ones in that they induce more cell mediated-response (the
killer lymphocytes).
But
that is part of the problem with them. These modern vaccines involve the
destruction of some of the subject’s cells. Do the developers of these
vaccines know for sure that their phospholipid capsules will not slip
into nerve cells or into kidney cells? These are tissues that are not
particularly capable of regenerating themselves if they are damaged.
We
also do not know the longer-term consequences of exciting the body’s
immune system and then exposing that system to cellular antigens
released by the destruction of the RNA ‘infected’ cells. Might this
induce an auto-immune disease in a portion of the people so exposed?
Auto-immune
diseases are conditions in which the body’s immune system starts
attacking some component of the body. Rheumatoid arthritis is one
example of an auto-immune disease and we still do not understand why it
affects certain people or what sets it off.
Would
Covid vaccines that rely on generating viral proteins within our own
cells precipitate auto-immune disease in those so predisposed? We do not
know. It may not happen, but shouldn’t we make sure that it doesn’t
before we inject this vaccine into millions of people?
The
Oxford-AstraZeneca and Sputnik V vaccines use a different strategy to
deliver the Covid genetic code for the spike protein to the subject
cells.
They convert the
Covid code to DNA, which is more stable and does not require ultra-cold
storage. They then put this DNA into modified Adeno viruses, which are
incapable of replicating in the subject’s body. These modified Adeno
viruses deliver the DNA code to the subject’s cells.
As
Adeno viruses cause respiratory tract infections, these vaccines will
infect respiratory tissues and are less likely to affect nerve and
kidney cells.
But as
these vaccines use DNA to code for the spike protein, the
vaccine-delivered DNA has to go into the nucleus of the subject’s cell
to produce the messenger RNA that can instruct the subject’s ribosomes
to produce the spike protein.
Willfully
putting foreign DNA into the nucleus of human cells is something we
should not take lightly. We know that in certain viral infections, viral
DNA becomes incorporated into the human chromosomes. This occurs in
hepatitis B and in HIV infections.
Do
we know for sure that this will not occur, in perhaps a small
percentage of cases, with the Covid vaccines that use DNA? Will this
viral gene interact with any other gene in our genome and cause a health
problem? Maybe not, but should we take that risk?
Look
at the alternatives. Let us be clear here. I am not an anti-vaxxer.
Vaccines have played a huge role in the control of infectious diseases
in the past 50 years, and they certainly have a big role to play in the
future.
The crucial
question is, do we need desperate measures such as deploying the new RNA
and DNA vaccines on a global scale before checking carefully that they
do not cause unexpected negative effects in the medium to long term?
After
all, there are other effective alternatives. Several Covid vaccines
have been produced using traditional vaccine technology. These
‘old-tech’ vaccines do not rely on RNA or DNA and do not involve the
subject’s cells in the generation of the viral antigen.
The
old-tech vaccines comprise Covid virus proteins that can be injected
into the subject’s body. These include CoronaVac, the Zhifei vaccine and
Novavax. There are several more.
Why
not use these old-tech vaccines to control the Covid pandemic? Why go
for modern technology that hasn’t been properly assessed and that might
have serious side effects in the medium to long term?
*Don’t be naive*
The
insistence of many vaccine manufacturers on indemnity clauses in the
agreements with governments is clear evidence that the manufacturers
themselves too are not able to exclude serious medium or long-term side
effects.
We would be
extremely naive if we do not note the profit motive when evaluating our
national vaccine strategy. Vaccine manufacturers stand to make humongous
profits if their vaccines are used on a worldwide scale. With the
indemnity clause in place, they are shielded from litigation if anything
goes wrong.
We have to
be world-wise and factor in the tremendous influence that the large
pharmaceutical companies have over governments and regulatory
institutions in the West.
We
also have to factor in geopolitical biases when evaluating Western
media often disparaging news reports of non-Western Covid vaccines.
A cautious approach
Malaysia
is not in as dire straits as the US or the EU countries where the
failure to implement physical distancing measures has led to the current
horrendous levels of infections and hospitalisations.
*We
are not doing so well now with our new cases edging up to 2,000 per
day, but our rates are much lower than in many other countries.*
*Covid
is not a health emergency that is threatening to overwhelm our medical
services as is the case in several Western countries. So we do not have
to take desperate measures.*
Based on the above considerations, my friends and I would like to suggest the following:
Rely
on the _'old-tech' vaccines_ that inject viral protein into the
subject. Let’s not experiment on our population with the ‘canggih’
vaccines that use the new RNA and DNA technology, whose medium and
long-term adverse effects are at present unknown.
Offer
the _'old tech' Covid vaccines_ to the high-risk groups initially – eg
healthcare workers, other frontliner personnel, older people, people
with comorbidities (other health problems) – and then later to the
entire population. But do not make it mandatory for any particular
group. Let people make an informed choice.
Provide
clear information to the public. All vaccines have side effects and the
public have a right to know of these. Given the level of mistrust of
authorities in the West, some of the doubts expressed there will filter
over to Malaysia. The best way of dealing with this mistrust is by being
honest with our people. The authorities should tell the people what
they know, and also what we still do not know about these vaccines.
Provide the _'old-tech' Covid vaccines_ free to the population.
Conduct
post-Covid vaccination surveillance to obtain an accurate estimate of
symptoms and side effects arising from the vaccine.
Communicate these findings to the people so they can make an informed choice regarding getting vaccinated.
The
Ministry of Health is in the midst of conducting an opinion poll to
ascertain the Malaysian population’s stance regarding the Covid vaccine.
This
is the opportunity for civil society groups and concerned individuals
to voice up and call for a cautious and measured approach to the mass
vaccination of the Malaysian population.
Did the Federal Court consider whether the said 5 comments posted by 3rd parties were contemptuous? OR did they take it as being contemptuous simply because the Respondents admitted that it was contemptuous? In the summary of the majority decision, it is stated, '...Malaysiakini admitted that the comments are indeed offensive, inappropriate, disrespectful and contemptuousand regretted the publication of them...'.
In my humble opinion, the courts should have independently done a thorough evaluation of each of the different comments, and made a decision as to whether all(or some) of these comments were contemptuous or not. The position adopted by the Applicant and/or the Respondents should not lead to the Court's conclusion that it was indeed contemptuous.
Further,in my opinion, if after the court's consideration, the courts came to the conclusion that these comments were indeed not contemptuous, then the case ends there, and there is no necessity in going any further to determine whether Malaysiakini or its Chief Editor are guilty of contempt or not.
An evaluation and determination of whether these said 5 comments(or some of them) were contemptuous would also be of AID to the general public, in understanding what exactly they can say/express and what they cannot for it is 'contempt' and they RISK being found guilty of contempt and punished accordingly. Public education is important to also for freedom of expression - for we certainly do not want to give the public the impression that they have no right to say anything about judges or courts - people need to know what they can say and what they cannot.
We have yet to see the FINAL FULL WRITTEN JUDGMENT of the Federal Court, which may contain matters not in the press summaries - which means, in that grounds of judgment, we may find that the courts did indeed evaluate each and every comment and word used, and determined whether it was contemptuous or not - we await patiently for the full judgment.
As mentioned before, for this case, as a lawyer, I did send to the court an AMICUS CURIAE SUBMISSION, where 'amicus curiae' means friend of the court. This subimission was sent not just to the courts but also the counsels of the parties concerned, plus others who were conducting watching brief like the Bar Council. When it comes to such amicus submission, it is up to the court to consider it or not - my hope was the judges on the coram did consider it. It was a rushed submission, and as such there are inadequacies - I apologize for that. Now, the court has made its final decision, I take the opportunity to share my submission to others..
Below, my rushed humble AMICUS CURIAE SUBMISSION (content only, without all the appended authorities/documents). The case was then scheduled for decision on 13/7/2020, but because of Covid-19, the decision was just handed down on 19/2/2021.
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA DI
PUTRAJAYA
PERMOHONAN SIVIL NO. 08(L)-4-06/2020(W)
Dalam
perkara komen-komen dalam suatu
artikel
bertajuk CJ orders all courts to be fully
operational
from July 1
Dan
Dalam
perkara suatu permohonan minta
kebenaran
untuk memulakan prosiding
komital
kerana menghina Mahkamah selaras
dengan
Perkara 126 Perlembagaan
Persekutuan
dan Aturan 52 Kaedah-Kaedah
Mahkamah
2012
Dan
Dalam
perkara mengenai Seksyen 13 Akta
Mahkamah
Kehakiman 1964
Dan
Dalam
perkara mengenai Kaedah 3 Kaedah-
Kaedah
Mahkamah Persekutuan 1995
Dan
Dalam
perkara Aturan 92 Kaedah-Kaedah
Mahkamah
2012
PEGUAM NEGARA MALAYSIA …
PEMOHON
DAN
1. MKINI DOTCOM SDN BHD (No
Syarikat: 489718-U)
2. KETUA EDITOR,
MALAYSIAKINI …
RESPONDEN-RESPONDEN
AMICUS CURIAE SUBMISSION
(For the contempt
proceedings scheduled for 13th July 2020)
1.This case seems to be dealing with the
contempt of scandalizing the judiciary/courts, which in brief is about
statements/comments which are criticism about the conduct of the judge, the
institution of the judiciary and its functioning.
2.It is different from other kinds of clearer contempts
like the contempt arising by reason of obvious disobedience of a court order,
or even actions/conduct in court which disrupts court proceedings.
3.The contempt of scandalizing the
judiciary/courts is odd also because it penalizes expressions that may have the
possibility of tarnishing the image of judges or the courts, but not other
expressions, even though false, which paints a good image of judges and/or
courts. Both kinds of expressions affect the public perception, and has the
tendency of painting a false image of judges and/or the courts. There is no clear
evidence that such expressions affects the public perception.
4.If the judiciary is worried that there will
be no respect for the judiciary, punitive laws will not enhance it. Quoting
Justice Black, Lord Pannick concurred
that he doubted that“respect for
the judiciary can be won by shielding judges from published criticism”.
5.This ‘scandalizing of the court/judiciary
contempt’ seems to be standing in competition with and contrary to a person’s human
right and/or freedom of expression/opinion, which is most important in ant
democratic nation that ought to encourage people’s participation in government.
Hence, this will include a person’s ability and right to publicly express their
own feelings and views, including also with the intention of influencing public
opinion.
6.Such free expressions have led to the
highlighting of lacunas, wrongdoings and even suspicions, which have led not
only further actions, including investigations, by relevant authorities, but
also to policy and legal reforms. However, this right to free expression is not
absolute, and there are already existing laws in place that allows for remedies
to individual or persons affected, including the State to take action.
7.Since the dawn of the Information and
communication technology (ICT) age, the opportunities of public expression for
the ordinary lay person has increased significantly, and now people can express
themselves through the many different spaces available online.
8.In the Malaysian context, many sadly have learned
‘bad lessons’ from some politicians, about the manner and style of which they
make comments/statements, which sadly do not always provide the best example.
Many are also unaware of the fact that comments made in Parliament are
protected – and no legal action can be commenced based on such comments, even
though if the same comments were made outside Parliament, one may be subject to
legal action.
9.Lack of awareness, transparency and
accountability plays a role in determining the understanding and perception of
people, which then may affect their comments and expression.
10.In this case, for example, many of the
comments seems to be affected by perceptions generated by recent events, which
was not properly explained by the government or the relevant authorities
including the judiciary. When the new government came into power, the new
Attorney General discontinued proceedings against certain individuals, who were
politicians, politically connected or their family members(or friends) of the
then previous Barisan Nasional government personalities.
11.When
the previous Public Prosecutor and the relevant authorities commenced criminal proceedings,
by charging individuals, the ordinary lay person, believed that this was done
in accordance to law, and that there was sufficient evidence, in the belief
prosecutor, to convince the court of the guilt of the individual beyond
reasonable doubt. Hence, months later, when a new Public Prosecutor, under a now
new government, discontinued proceedings, many may believe that injustice
happens, possibly by reason of change of government. When the judge then elects
to acquit, rather than simply discharging the then accused which does not
amount to an acquittal, the public perception of the courts, judges, judiciary
and the administration of justice is also affected. An acquittal is a total bar
to later charging for the similar offence. There is no limitation for crime,
and the possibility of new and sufficient evidence arising later cannot be
dismissed.
12.It
must be pointed out, that similar cases happened during the reign of the
Pakatan Harapan plus government. This phenomena is new for the ordinary Malaysians,
who for the very first time experienced a change of government at the Federal
level in 2018, after the lasy General Elections, and the second time a change
of government happened was this year, when the new ‘Perikatan Nasional’ plus
government came into power.
13.For
the lay person, who is also not familiar with the laws, coupled with a lack of
information provided, there is the possibility that their perception of the courts,
judiciary and administration of justice may be affected.
14.This
reality, which affects personal perception can and do have a bearing on
comments/expressions made, whereby 5 such comments are the subject matter of
this contempt proceedings. It is crucial that the Court appreciate this
backdrop or reality, in this current contempt proceedings.
15.On
10 July 2020, the Malay Mail report, citing comments made by the Chief JusticeTan
Sri Tengku Maimun Tuan Mat, certainly explains and clarifies a lot of misconception
about the courts and judiciary arising out of recent events, which if was done
much sooner, may have ended comments, including the 5 comments, being the
subject matter, in this case. This ought to have a bearing on this case. (A
copy of the said media report is attached and marked as ‘Enclosure 1’)
‘The
court does not have the power to direct or urge the public prosecutor to file
or withdraw charges against any party in criminal cases,” said Chief Justice
Tan Sri Tengku Maimun Tuan Mat.
“The
court cannot force or push the prosecution to proceed with a trial on a charge
brought in court, if the prosecution has decided to drop or withdraw the
charge,” she said.
“This
is the legal situation in our country,” she said in her speech at the
taking-of-oath of office and loyalty ceremony of Federal Court and Appeals
Court judges, as well as judicial commissioners held at the Conference Hall in
the Palace of Justice.
She
said just because there were third parties who disagreed with the prosecutor’s
decision not to proceed with the charges which had been filed in court, this
does not mean that court or judges had acted dishonestly, conspired, were in
favour of any particular party or were involved in corrupt practices.
“It
is deeply saddening and extremely disturbing that of late, the judiciary had
been repeatedly criticised only because the prosecutor, in exercising their
discretionary power under Article 15 Clause (3) of the Federal Constitution,
had decided to withdraw some charges in some high-profile cases,” said Tengku
Maimun.
Tengku
Maimun said the decision could only be made by the public prosecutor, not by
other parties, including the court.
Tengku
Maimun said readers have no way of confirming the validity of what had been
written and would assume that whatever written on social media were true.
In
her speech, she stressed that the Judiciary had never taken the stand that
judges should not be criticised instead she said, the Judiciary was ready to
accept constructive criticism on decisions made by the courts.
“The
Judiciary is responsible to the community and any constructive criticism can
further improve quality in executing justice,” she said.
16.Many
comments and statements, can and do arise because of misconception of the
truth. It is thus essential that there must always be transparency and
accountability, and most necessarily speedy clarification or correction of public
perception. If the Chief Justice and/or the Judiciary had speedily clarified
misconceptions or misunderstandings, then we would not even be seeing much
comments and/or expression arising from a wrong understanding of the role of
judges and courts, arising also from the recent discontinuation of cases and
related agreements involving prominent personalities. It is easy for the lay
person to lay blame on judges and/or courts, when the charges against accused
persons are suddenly discontinued, and courts DNAA or acquits individual
person. The recent Chief Justice's comments was what we need to help avoid
wrong perceptions, leading to comments/statements wrongly laying blame on the
judiciary and/or the courts.
17.In
this kind of contempt relating words/expressions, it is important not only for
the courts to first make a determination independently as to whether the
alleged words/comments are contemptuous or not. The intention of the maker also
is key. The maker’s capacity, age, intention, educational background and even language proficiency also needs to be
considered. For example, it will be foolish for a minor’s comments to be
subject of a contempt proceedings. In this case, where comments are
automatically published, the possibility of ‘sabotage’ by persons intend in
attacking the media outlet also should be borne in mind. Were the comments made
intentionally to get the Respondent’s in trouble?
18.There
are laws still available today in Malaysia, under which the Respondents and/or
the said commenters could have been investigated, prosecuted and/or charged under,
but the Attorney General(the Applicant) elected to initiate contempt
proceedings before the Federal Court. Notice should be taken of the failure, until now, of the commencement of
any criminal prosecution of the Respondents and/or any for the said commenters.
Identification of online makers of statements is no longer a major problem, as
many have been investigated and/or charged for comments even whilst using
pseudonyms.
19.Judges
have the right and/or power to initiate contempt proceedings, but in this case
it is the Attorney General that initiated this contempt action, and hence his
choice, even though he has the right to initiate contempt proceedings, raises
questions.
20.In
any criminal proceedings, there are existing Acts of Parliaments, which also define the offence and the possible
defences available, unlike contempt of court where Malaysia still does not
have a clear Contempt of Court Act. In criminal trials, there are also clear procedures and evidential
requirements as provided by statutes, but not so in the case of contempt
proceedings.
21.In
this case, the commencement of the contempt proceedings at the Federal Court,
also will deny parties the right to 2
appeals, which is fundamental to ensure justice be done in our
administration of justice. Now, if the Federal Court hears this contempt case,
there will be no avenue or right for appeal, hence denying a most important
safeguard in the administration of justice, being the right and/or ability for
appellate courts to review and correct judgments of lower courts.
22.A
Federal Court decision will bind lower courts, and only a subsequent Federal
Court will have the opportunity to overturn or correct any decision of a
Federal Court. The Federal Court do have the jurisdiction now to hear this
contempt proceedings, but it maybe more just if the Federal Court elects transfers
this case to be heard by the High Court, leaving intact the right to 2 appeals,
and thus maintaining the also opportunity for appellate courts, including the
Federal Court possibly, to later review, and even correct mistakes of lower
courts, if needed.
Are the Comments contemptuous?
23.The judgment, following the hearing of
Enclosure(22), the Respondents’ application to set aside the Leave granted to
the Applicant, which the Federal Court dismissed on 2nd July 2020, seems
to suggest that the comments were deemed contemptuous, simply because both
Applicant and the Respondents agreed. Was there no independent evaluation and
decision of the Court as to whether the comments(or words) are contemptuous or
not? The words in the said judgment, is not clear about any independent
evaluation by the Court, all that was stated was
‘…(a)
The words read out above are contemptuous as agreed by both parties;…’
24.It is submitted that the Federal Court erred
in coming to this conclusion. Alternatively, it maybe just an initialfinding, and the Federal Court will make a
substantial and comprehensive evaluation and make its findings as to whether
the said comments(or part of it) were indeed contemptuous or not.
25.It
matters not what the Applicant or even the Respondent thinks, it must be the
Court that ultimately decides whether a statement or comment is contemptuous or
not. The Court must independently and thoroughly examine the
comments, and determine whether the comments are indeed contemptuous or not.
This ought to be rightly and justly the first step in the hearing.
26.In criminal cases which carry the death
penalty, an accused plea of guilt is rejected, and the courts will proceed with
a full trial, to determine the guilt or innocence of the accused.
27.Likewise, in contempt of court hearings,
especially it is this contempt of scandalizing the judiciary/court, arising by
reason of some statements, comments or expressions, reasonably and justly, the
courts must first evaluate and determine for itself whether the said comments
are contemptuous or not, and it will best that reasons are provided later in
the court’s judgment which will help in public education.
28.If
the said statement and/or comments are not contemptuous, as
decided by the Federal Court after independent evaluation, then there is no need any more to expend unnecessary
effort, time and/or cost going any further in this contempt proceedings,
and the case must be dismissed and the Respondents acquitted.
29.If however, after comprehensive evaluation,
the Federal Court decides that all (or some) of the said comments (or part of)
are contemptuous, then the court will proceed to determine the reasonableness,
intention and other related matters, including defences, of the maker (and/or,
in this case the publishers) of the said contemptuous comments (or part of it
which is deemed to be contemptous).
30.Oddly, in this contempt proceedings, the
makers of the said comments have not been cited for contempt. The citing of the
First Respondent being the company that owns Malaysiakini, responsible for the
alleged republishing, even though such comments are really actively published
by the individual commenters, may have some basis. However, the citing of the 2nd Respondent,
being the Chief Editor, is wrong for he is but a mere employee, who may be said
to have responsibility for articles/reports written by other journalist in
employ, but certainly not everything else, including policy, practice or even
comments published directly by third party commenters. It would have been
more rationale if owners and/or Directors, or even Chief Executive Officer,
were cited – certainly not the Chief Editor, who cannot be held personally
responsible.
31.There is no
bar for the calling and examination of witnesses in a contempt proceedings.
In this case, the Applicant, being the deponent of the Affidavit Menentusahkan
Fakta affirmed on 15th June 2020, may be an important witness noting
that the Statement of Facts and the Affidavit itself lacks material particulars
and what words and phrases exactly of the 5 comments are contemptuous, and why.
Other witnesses are also important to
prove truth, justification and other relevant facts including the
context/reality when the comments were made, when perceptions were flawed,
now possibly corrected by the Chief Justice, in the media report dated 10 July
2020. Will the court allow the calling and examination of witnesses in this
contempt proceedings, more so when it is before the Federal Court?
32.The comments itself, as will be seen later,
do not all even refer to judges, courts and/or the judiciary, but also to other
matters not the courts doing, or even within the powers of the court. Would it
even be a contempt of scandalizing judges, court or the judiciary?
33.Whilst
judges and the courts, are part of the administration of justice in Malaysia,
there are others too, including the police, enforcement agencies, lawyers and
prosecutors, who are also involved, who are responsible for other aspects in
the administration of justice.
34.The
contempt the court will be looking at is the contempt of scandalizing of the
courts(or judiciary), and as such comments related to actions of others, not
judges or the court, ought not be subject to this contempt of court proceedings.
There are other laws that could be resorted to for matters contained in the
said comments, if any, if a crime is alleged to have been committed.
An evaluation of the said 5 Comments
35.Taken
from the judgment of the Federal Court dated 2 July 2020, the said allegedly
contemptuous comments are as follows:-
‘(i)Ayah
Punya kata: The High Courts are already acquitting criminals without any trial.
The country has gone to the dogs;
(ii)GrayDeer0609:
Kangaroo courts fully operational? Musa Aman 43 charges fully acquitted. Where
is law and order in this country? Law of the Jungle? Better to defund the
judiciary!
(iii)
Legit: This Judge is a shameless joker. The judges are out of control and the judicial
system is completely broken. The crooks are being let out one by one in an
expeditious manner and will running wild looting the country back again. This
Chief Judge is talking about opening of the courts. Covid 19 slumber kah!
(iv)Semua
Boleh – Bodoh pun Boleh:Hey Chief Justice Tengku Maimun Tuan Mat -Berapa JUTA
sudah sapu -46 kes corruption -satu kali Hapus!!! Tak Malu dan Tak Takut Allah
Ke? Neraka Macam Mana? Tak Takut Jugak? Lagi –Bayar balik sedikit wang sapu
–lepas jugak. APA JUSTICE ini??? Penipu Rakyat ke? Sama sama sapu wang Rakyat
ke???
(v)Victim:
The Judiciary in Bolihland is a laughing stock.’
General
Comments
36.Most of the comments, especially comments
(i), (ii), (iii) and (iv), seems to be related to recent happenings, which were
widely reported in the media, including in the case of Riza Aziz (the stepson
of a former Prime Minister) and Musa Aman (the former Chief Minister), whereby
in both these case, prosecution decided to discontinue proceedings, which led
to a DNAA(Discharge Not Amounting To Acquittal) in the Riza Aziz’s case, and an
Acquital in the Musa Aman’s case. In the Riza Aziz’s case, there was also
allegedly an agreement, which included a repayment of a sum much lower than the
sum as reflected in the charges, or the minimum fines provided in law if
convicted, even if one pleaded guilty.
37.Both the said Riza Aziz and Musa Aman were
charged during the rule of the Pakatan Harapan plus government for offences
committed years before during the Barisan Nasional rule, when the then Attorney
General (Public Prosecutor) was Tommy Thomas. The discontinuation of
proceedings and the disclosed agreement (with Riza Aziz) happens within months
since the new Perikatan Nasional government comes into power, and a new
Attorney General, on the advice of the current Prime Minister, was appointed by
the King.
38.Comment (i) states that the ‘The High Courts
are already acquitting criminals without any trial’ – it is a fact that the
courts have been acquitting persons without trial, but the commenter maybe ignorant
of the fact that this has always been happening in criminal cases, where the
prosecution discontinues proceedings, even before trial has commenced which
normally will result in a Discharge Not Amounting to Acquittal (DNAA), and in
some cases there have been an acquittal. In the Musa Aman case, it was an
acquittal, whilst it was a DNAA for the Riza Aziz case.
39.The 2nd part of comment (i), ‘…The
country has gone to the dogs…’ refers to the country – not specifically to the judges,
the courts or judiciary. As such, this statement should not even be considered
relevant for this contempt case.
40.Comment (ii) are basically questions being
asked – it not a statement or an assertion. Questions raised for others to
consider or think about should generally not even be considered to be
contemptuous.
41.The last statement of comment (ii), ‘Better
to defund the judiciary!’ is but a suggestion (or proposal/call) to cut or stop
funding of the judiciary. Again, such proposal should not be even be considered
contemptuous – everyone has a right to express his/her viewpoint in a
democracy.
42.Comment (iii) ‘This Judge is a shameless
joker. The judges are out of control and the judicial system is completely
broken.’ This may just be a comment in response to a previous comment, not the
post. Which judge is he/she talking about? It may be the judge in the Musa
Aman’s case or some other, and if so this contempt really ought to be dealt
with at the relevant court or the High Court not the Federal Court.
43.The last 2 sentences in comment (iii), ‘This
Chief Judge is talking about opening of the courts. Covid 19 slumber kah!’ refers to the Chief Justice, and it seems to
be a response to the announcement of the opening of the Courts. The comment is nothing
but an expression of fear in light of the current Covid-19 pandemic, as a fear
escalated by the movement control orders including the closure of the courts
and various premises. It cannot be said to be a contemptuous remark but more an
expression of fear and worry of a concerned Malaysian(or a foreigner) noting the
world is still not free from the Covid threat. Malaysia too is still under a
lesser movement control order, and even schools remain close then.
44.Comment (iv) starts with a salutation – but
again, it is all questions not statements. Reference to God and Hell, all seems
to be reference based on religious text
and views, including Islam, where in many such religions there are strong
statements about the duties and obligations of judges, with includes also
‘threats’ that Hell will be consequence of failing to do justice. They are but questions
for reflections, and at most a reminder to judges of their duty to uphold the
cause of justice. It is also a statement of worry.
45.Comment (v), ‘The Judiciary in Bolihland is a
laughing stock.’ –well, this may be a contempt. Is he/she talking about
Malaysia, or some ‘Bolihland’. The statement makes no reference to any judge or
court, and is possibly an expression of commenter’s current perception. Is it
contemptuous?
46.Anyone can commence a contempt proceedings,
but in this case it was our Attorney General. Noting that many of the comments
seems to relate to the recent actions of discontinuing criminal proceedings,
actions done byprosecutors, not the
courts, one may wonder whether the actions and/or decisions of the Attorney
General to commence this contempt proceedings may itself have been affected by other wrong, maybe even
personal, considerations.
47.Such similar comments are all over the
internet, and this contempt action is commenced against one popular alternative
media and its Chief Editor, and not even the makers of the comments. As pointed
out earlier, besides contempt proceedings, there are other options available
under existing Malaysian law.
Intention of the Maker/Publisher of
Contemptous statements
48.In this case, since the actual makers of the
statement/comments are not being subject to this contempt proceedings, it will
be difficult (impossible) for the court to ascertain the reasons/intentions,
let alone the true meaning of the comment (and/or word/phrases used), and as
such the meaning and intention can only be wild guesses of third parties.
Language proficiency may also come into play here, when what one wanted to really
say is expressed in a language one is not proficient in.
49.Comments posted in the public domain is very
common today, in this ICT(Internet Communication Technology) age; and such
comments can be posted and published so easily without the knowledge of the
owner of the domain/website or social media app. It can happen even now happen in
your personal Facebook pages/groups, twitter account, many other online Apps,
Blogs and websites. The owner may not
even read, or be aware of many of these post UNLESS his/her attention is
directed to it.
50.Hence, with regard to the Respondents, who is
a media company, whose business and profits will be determined by its online
subscribers and advertisers. The number of visits will determine how many
advertisers want to place paid advertisements on your site.
51.Allowing unmoderated(and uncensored)
interaction amongst its readership is but simply a new business strategy, in
this highly competitive world of media business, to increase readership, which
may lead to an increases in paid subscribers, and also getting more paying
advertisers.
52.It is very seldom that readers will return
later to read old news, let alone the readers’ comments to article or media
reports. Asking that all comments, be moderated and approved before publication
is something near impossible and will take time, when time is of essence
especially when it comes to business of news providers. It will also mean an
increase in operation cost, which then may result in higher subscription rates
having to be imposed on consumers. Given the number of competing media outlets,
some still free, it will be detrimental to online media businesses like the
First Respondent. There is also no law that currently imposes obligation on
media businesses to vet reader comments before publication. Warning and/or
notices to commenters are deemed sufficient.
53.If comments are delayed or regularly blocked,
then the media may also be accused of censorship or being against freedom of
expression/opinion. The modern day media, no longer wants to simply have its
own say, but has moved to wanting to get the views, opinions and reaction of
its readership.
54.If the respondent, only allowed the
publication of only pre-moderated comments, may imply intention in publication of
these pre-moderated comments – hence,maybe
the intention to publish these allegedly contemptuous statements. BUT, in this
case, the comments, unmoderated, are immediately published.
55.The respondents have a reporting policy in
place – where any reader can report any comment, which will then reasonably be
evaluated and removed if it is contemptuous, defamatory or for some other valid
reasons. It is difficult for an ordinary lay person, without the relevant legal
knowledge, to decide what is contemptuous and/or defamatory – and this requirement
of pre-moderation (or vetting) before publication may arise to ‘self
censorship’ beyond what is required by law. It may also mean the
non-publication of comments that are grammatically wrong or for some other
reason. This will impact the freedom of expression and opinion of the
commenters.
56.In this case, Malaysiakini did speedily
remove the said comments, when it was made known. Did they conclude that it was
contemptuous before removal, or did they simply remove without proper
evaluation and conclusion?
57.Hence, in this case, it cannot be said that
the respondents had any intention to act in contempt of court, more so when
they speedily removed it.
58.Was a removal of the comments translate to an
admission that it was indeed a contemptuous remark? Nobody want to be subject any
risk of civil suits, criminal investigation/prosecution and/or contempt
proceedings, and as such the immediate response is usually simply the removal
of any allegedly ‘offending’ content just to be safe, more so if it only but a
comment of a third party not a report authored by its own staff, writers and/or
editors.
59.The knee-jerk reaction to a contempt of court
has been to promptly apologize, with the intention and hope of avoiding
commencement of contempt proceedings, and for mitigation purposes. This is also
the norm amongst many even in the legal community. The court should never hold
such responses as an admission of guilt, or even as an admission that the
statement/expression is contemptuous. As mention earlier, whether a comment or
a phrase is contemptuous is something that the court alone should independently
decide.
Scandalizing of the Court in other
jurisdiction
60.Many
other jurisdictions have found scandalising contempt to be incompatible with
their respective constitutional rights to freedom of expression, which led to
the United Kingdom abolishing the offence. The same too has happened in Canada
and the United States.
61.In
the UK, when the Attorney General of Northern Ireland commence this similar
‘archaic’ contempt proceedings, it resulted in finally the abolition of
Abolition of scandalising the judiciary as form of contempt of court.
62.Extracts
from the House of Lords Hansard states this – ‘The law of scandalising the
judiciary could have been left in the moribund state in which it has rested for
many years. However, the Attorney-General for Northern Ireland unwisely chose
earlier this year to seek to breathe life into it by bringing a prosecution,
later dropped, against Peter Hain MP for some critical comments he had made in
his autobiography concerning a Northern Ireland judge. That prosecution had two
main consequences. First, it substantially increased the sales of Mr Hain’s
book and, secondly, it led to this amendment.’
63.0n 10/12/2012, the House of Lords UK
Parliament vide Amendment 113A, abolished the contempt of scandalizing.
The new section entitled ‘Abolition of scandalising the judiciary as form of
contempt of court’ Section (1) states, ‘(1) Scandalising the judiciary (also
referred to as scandalising the court or scandalising judges) is abolished as a
form of contempt of court under the common law of England and Wales.’ This is
now law.
64.In
Malaysia, the contempt of scandalizing the judiciary came into being in
reliance of decisions basically from the United Kingdom or Commonwealth courts.
65.It
is common knowledge, that the House of Lords is made up of many prominent well
respected members of the Judiciary, and as such it may be of use looking at the
Hansard when scandalizing of the judiciary was abolished. The said copy of the
relevant pages of the Hansard is attached, and marked Enclosure 2.
66.Some
of the relevant comments, as extracted from the Hansard of the House of Lords
are as follows:-
-It is no longer necessary to maintain
as part of our law of contempt of court a criminal offence of insulting judges
by statements or publications out of court. The judiciary has no need for such
protection’(Lord Pannick)
-‘….the wise judge—and he, if I may
say so, was a very wise judge—normally ignores insults out of court. ’(Lord
Pannick)
-Judges, of course, are as entitled as
anyone else to bring proceedings for libel, and some have done so.’(Lord
Pannick)
-‘…that the amendment is not designed
to encourage criticism of the judiciary. Much of the criticism to which judges
are subjected is ill informed and unsubstantiated. However, even where criticism
is unjustified, it should not be a criminal offence. (Lord Pannick)
-“It may be necessary to clarify that
the abolition of this offence does not affect liability for behaviour in court
or conduct that may prejudice or impede particular proceedings”(Lord Lester)
-...He will remember that the other
antique and archaic speech crimes of sedition, seditious libel, defamatory
libel, obscene libel and blasphemous libel were all abolished by the previous
Government and Parliament for similar reasons connected with free speech. (Lord
Lester)
-Although abolishing this crime in
this country will make very little difference because the law is entirely
obsolete, it will make a difference in the rest of the common law world.(Lord
Lester)
-…The special sanction for judges
remains unnecessary. My reasons remain the same. Judges have to be hardy enough
to shrug off criticism, even if it is intemperate or abusive, which has
happened; even if it is unfair and ill-informed, which has certainly happened;
and even if it is downright deliberately misleading, the same applies…I speak
from some knowledge. I have been scandalised on several occasions in the course
of criminal trials at which I was the presiding judge without a jury. It was
intemperate, certainly ill-informed and extremely offensive. I was deeply
offended and hurt, but I certainly did not consider attempting to ask anyone to
invoke the special procedure of scandalising the court. If anyone had suggested
it, I would have firmly discouraged him at that time, which is a good many
years ago now. (Lord Carswell)
-…that it is better not to introduce
any such offence into the law but simply to leave it at abolishing the offence
of scandalising…My reasons are three. First, special protection of judges
immediately invites criticism from those who are all too ready to give vent to
it. Secondly, if a judge had to give evidence in such proceedings, it would
create a further and better opportunity for intrusive cross-examination and
create a field day for publicity for critics of the judiciary. Thirdly, as I
have said before, judges have to put up with these things; they have to be
robust, firm and, on occasions, hard-skinned enough.(Lord Carswell)
59.Interestingly,
the 26th Sultan Azlan Shah Law Lecture was delivered by the same Lord David
Pannick, QC entitled “Scandalising the judiciary: criticism of judges and the
law of contempt” on 5 September 2012 at the Mandarin Oriental Hotel.
60.The
Chapter8.Contempt by publication (2)—
scandalisingthe court, produced by the
Victorian Law Reform Commission, which also refers to the Australian Law Reform
Commission findings is also enclosed as Enclosure
3. Some of the relevant extracts are as follows:-
8.54The ALRC summarised the ‘principal responses’ to the argument
that public confidence is needed to support thejudicialsystem:
•There is no clear
evidence that a lack of public confidence could lead to the operation of the
legal system being negatively impacted.86
•It is short-sighted
to expect that the public might ‘rise up’ and destroy the system if public
discussion, education and criticism were to be allowed instead of repressed.87
•Even if public
confidence is perceived to be desirable, it should not be an ‘absolute good’
pursued at all costs, ‘[i]n particular, it should not override the need for
public education as to the genuine flaws in the system …’.88
8.55Further, judicial officers
have acknowledged that they should be robust in the face of criticism, and that
being criticised is part of the job of a judicial officer. This is reflected in
Lord Salmon’s statement in the 1980 United Kingdom case A-G v BBC:
I
am and have always been satisfied that no judge would be influenced in his
judgment by what may be said by the media. If he were, he would not be fit to
be a judge.
8.56The assumptions underlying scandalising contempt and the
available evidence testing these assumptionsareconsideredin threecontexts. These are:
•the nature of criticism of the judiciary today in the context of new and emerging issues, acceptance
of greater scrutiny of the courts and the impact of online and social media
•the global shift
towards freedom of speech and the impact of the implied freedom of
politicalcommunication
•alternative avenues
for dealing with criticism of the court today and whether they provide a more
appropriate balance between maintaining the integrity and authority of the
court and freedom of speech.
61.It must
also be noted that ‘…8.72Despite not
having a constitutional right to freedom of expression in Australia, the common
law has afforded protection of freedom of speech. In light of this, Justice
Murphy (dissenting) noted in Gallagher.[Gallagher v Durack (1983) 152 CLR 238,
248.]:
TheabsenceofaconstitutionalguaranteedoesnotmeanthatAustraliashouldaccept judicial inroads upon freedom of speech which are not found
necessary or desirable in other countries.Atstakeis not merely the freedom of one person; it
is the freedom of everyonetocommentrightlyor wronglyon thedecisionsofthecourtsina waythatdoesnot constitute a clear and present danger to
the administration of justice.
62.One normal
argument advanced, is that Malaysia is a young nation, but we have achieved
independence in 1957, and we are now past the retirement age. With regards the
Malaysian judiciary, it must be noted that our judiciary have been in existence
for much longer. Our Malayan Law Journal started publication since the 1930s.
63.Malaysian
judges and judiciary are today strong and mature, capable to rise above
criticism made in the public arena. Malaysia is at the stage, when the contempt
of scandalizing the judiciary/courts can and should be abolished.
63.This
Malaysiakini case gives the Federal Court the opportunity to settle once and
forthe position of the Malaysian
judiciary, when it comes to public criticism, the procedure in dealing with
contempt of court cases, and also evidential requirement and elements that
needed to be proved before someone could be found guilty of contempt. Whether
it is time for the abolition of this archaic contempt of scandalizing the
judiciary/courts is also something to be determined.
64.We have
not made a comprehensive submission covering all related matters of this case,
but have basically highlighted some points. As time is of essence, we also did
not have the opportunity to identify and cite many judgments, that would
support our contentions.
65.It is our
humble submission, that this friend of the court’s submission, will assist the
court in this Malaysiakini contempt case, now fixed for hearing on 13th
July 2020.
Simplified: The 'Malaysiakini' decisions in the Federal Court — what the judges decided and why it matters
Sunday, 21 Feb 2021 07:08 AM MYT
BY IDA LIM
Malaysiakini editor-in-chief Steven Gan arrives at the Federal Court in Putrajaya February 19, 2021. ― Picture by Hari Anggara
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KUALA LUMPUR, Feb 21 — News outlet Malaysiakini on Friday
found itself held liable and fined RM500,000 by the Federal Court for
the contemptuous comments of five readers that were hosted on its
website in June 2020.
With a seven-member panel at the Federal Court examining the case, there was a split decision as six judges found Malaysiakini
guilty of contempt of court for facilitating the five subscribers’
comments, while one judge disagreed that the 21-year-old news site
should be held guilty.
Here’s a brief chronology of events that led to the Federal Court
rulings on Friday according to news reports and court documents, and a
quick look at how and why the judges arrived at the decisions.
1. The facts
On the morning of June 9, 2020, the prosecution informed the High
Court that it was withdrawing all 46 corruption and money-laundering
charges against former Sabah chief minister Tan Sri Musa Aman, which
then resulted in the High Court acquitting the politician.
Later, on the same day past noon, news portal Malaysiakini
published a news report titled “CJ orders all courts to be fully
operational from July 1”, which was regarding a press release by the
chief justice of Malaysia on the operation of courts in line with the
recovery movement control order (RMCO).
Subscribers of Malaysiakini then posted comments under this
news report in the comments section on its website, including the five
comments which, among others, contained criticisms against the judiciary
and the chief justice over Musa’s acquittal. This was despite the
acquittal being due to the prosecution’s decision to drop the charges
(which was explained later in the day by the attorney general as due to the unavailability of certain documentary evidence and witnesses).
According to Malaysiakini, comments can only be made by
active paying subscribers, with such comments posted automatically on
its website without any prior manual moderating, and with only a filter
software to disallow comments from being uploaded if foul words from a
list by Malaysiakini’s editors are detected.
After they are published, the system will detect any comments with
“suspected words” and flag the comment to the moderator for review,
while a peer-review process allows other readers to flag or report
offending comments seen on the website which will then result in an
editor reviewing and deciding whether to remove the comment.
Malaysiakini said no readers had reported these comments and the comments did not carry any of the “suspected words” that Malaysiakini’s filter software could detect.
Malaysiakini had said it was not aware of the five comments
until June 12 at 12.45pm when it was alerted by the police as to
investigations into the comments, with Malaysiakini’s editorial team then immediately reviewing the comments and removing these and other comments at 12.57pm on the same day.
Malaysiakini’s editor-in-chief Steven Gan was contacted by
the police on June 15. The following day, he gave a statement to the
police as requested. Then, on June 26, Malaysiakini provided
details of the five registered users who had made the comments to the
Malaysian Communications and Multimedia Commission (MCMC) and the police
in compliance with a June 24 request by MCMC. Malaysiakini has since permanently banned all five users.
On June 17, 2020, the Federal Court granted leave or allowed the
attorney general to start contempt of court proceedings against Malaysiakini’s operator Mkini Dot Com Sdn Bhd and Malaysiakini’s
“Ketua Editor” for facilitating the publishing of the five comments.
The five comments had been deleted from the news site by then.
The attorney general said Malaysiakini knew or should have
known that the words in the comments amounted to an insult against the
judiciary and the chief justice of Malaysia, and threatened public
confidence in the judiciary, as well as tarnished the dignity and
integrity of the judiciary.
Malaysiakini’s lawyer urged the Federal Court to not hear
the contempt of court case, arguing that the attorney general should
have started the contempt proceedings at the High Court to allow the
news outlet to have the option of appealing any rulings, instead of
going straight to the Federal Court which is the highest court and where
further appeals cannot be pursued.
But the Federal Court on July 2 dismissed Malaysiakini’s
application to set aside the leave decision and decided to proceed with
hearing the contempt of court proceedings due to the five comments
being on the judiciary as a whole, including the chief justice. The case was heard on July 13 with lawyers representing Malaysiakini and the Attorney General’s Chambers presenting their arguments.
In court documents, Malaysiakini and its editor-in-chief
offered their unreserved apology: “The respondents regret the tone and
tenor of the comments and unreservedly apologise to this honourable
court and the judiciary as a whole for having unwittingly allowed for
their airing. Neither of us had any intention of scandalising or
undermining the judiciary in any manner whatsoever.”
On February 19, a summary of the majority judgement and a summary of
the minority judgement were read out in the Federal Court. This means
the explanation below is based only on the summaries, and not the full
grounds of the judgement.
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
2. Majority ruling: Malaysiakini guilty, Steven Gan not guilty
The majority judgement was delivered by Court of Appeal president Tan
Sri Rohana Yusuf, with five other judges on the Federal Court panel
agreeing — 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 Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli.
• The five comments are in contempt
First, Justice Rohana noted that Malaysiakini admitted the
five comments to be “offensive, inappropriate, disrespectful and
contemptuous” and that it regretted the publication of the comments.
Here’s how Malaysiakini’s position was summed up: Malaysiakini
and Gan said they were not the maker or publisher of the comments and
had no role in the publication of the comments, and that they cannot be
held liable for contempt as the comments were made by third-party
subscribers on Malaysiakini’s website.
The Federal Court noted that the law is clear when it involves
publishers of print media, but that it is not as straightforward when it
comes to the legal liability of publishers and editors of new media
where third-party postings are published online without the usual
editing process, before proceeding to consider the blame in Malaysiakini’s case.
• Malaysiakini presumed to be publisher of comments, court decides it had ‘knowledge’ of comments
The attorney general relied on Section 114A of the Evidence Act to presume that Malaysiakini
is the publisher of the five comments. Among other things, Section 114A
states that anyone who facilitates the publication of contents online
is presumed to have published such contents, unless it is proven
otherwise.
Agreeing with the attorney general’s use of Section 114A, the judges said Malaysiakini as the publisher is liable for the contemptuous comments made by the third-party subscribers.
Malaysiakini had sought to rebut the Section 114A
presumption by saying it had taken all the necessary safeguards against
liability from such third-party comments and that it had no knowledge of
the comments. The Federal Court however ruled that Malaysiakini had failed to show it has “no knowledge” of the comments, based on the facts and evidence.
The Federal Court instead said the facts showed that Malaysiakini had knowledge of the comments, saying that Malaysiakini
as the owner of the website has “full control” of what can be
published, and must bear the risks that follow from allowing the online
platform to operate in the way it had designed.
“Malaysiakini cannot be heard to say that its filter system
failed to filter offensive comments, when in fact it deliberately
chooses to only filter foul language, but not offensive substance,”
Justice Rohana said. She added that the judges were “perplexed” by how
the offensive comments had passed through the filter given how they were
worded.
The Federal Court said that Malaysiakini’s three safeguards
— including the filter system — had “failed and did not efficiently
control or prevent offensive comments from being published”, before
going on to say that Malaysiakini cannot clear itself of all liabilities and “irresponsibly shift the entire blame” on its third-party online subscribers.
“The truth is the postings were made possible only because it
provides the platform for the subscribers to post the impugned comments.
There being no two ways about it. In short, as stated in the
application of the AG, the first respondent (Malaysiakini) facilitates the publication of the contemptuous comments by the third-party subscribers,” Justice Rohana said.
Saying that none of Malaysiakini’s editors denied knowledge
of the five comments and given a well-organised editorial team and
reporting structure, the judges said the inference is that at least one
of the editors had knowledge of the comments, and concluded that Malaysiakini cannot deny knowing that the comments existed.
The Federal Court also said Malaysiakini must take on the
responsibility for the risk of facilitating comments, and that it cannot
cite the “sheer volume” of 2,000 comments posted daily by readers to
shirk from such a responsibility.
(Malaysiakini had in court documents previously said it
would not be possible to directly moderate comments before they are
uploaded due to the volume, and that it also could not monitor every
comment as they can be posted at all hours and on different days or even
years after a news report has been published.)
“With the novel objective of encouraging public discourse on matters of public interest, Malaysiakini
must at least ensure that the Malaysian public be exposed to balance
discussions on the issues of public concern and not participate in
demeaning and ridiculing the institution of the judiciary to undermine
public confidence,” the judges said.
• Constructive knowledge: The ‘should have known’ test
“It would be expected for Malaysiakini to foresee the kind
of comments attracted by the publication of the article on the acquittal
of Musa Aman by the court following the withdrawal of charges,
coinciding with the unfortunate timing of the press release by the chief
justice.
“Members of the editorial team, in particular, must have been aware
of the kind of materials published and would be able to foresee the sort
of comments that it would attract, given their experience in running Malaysiakini for over 20 years,” they added.
The Federal Court also said Malaysiakini could not rely on
the Malaysian Communications and Multimedia Content Code as a shield of
defence against legal liability, before concluding that Malaysiakini
had failed to show that it had no knowledge of the five comments to
rebut the presumption of publication and held the news outlet guilty in
contempt of court.
The Federal Court said Gan is not guilty of contempt, as the attorney
general did not show proof that he falls under the Section 114A(1)
presumption of being the publisher or facilitating the publishing of the
contemptuous comments. This means that he escaped the potential
sentencing of being jailed or fined.
The majority ruling also reminds Malaysians to exercise their right
to freedom of expression within legal limits and use their discretion
wisely when posting online, also urging Malaysians to not let social
media change their behaviour as they are not known to be “rude, discourteous, disrespectful or ill-mannered”.
A general view of the Federal Court in Putrajaya December 14, 2020. — Picture by Yusof Mat Isa
3. Minority ruling: Malaysiakini, Steven Gan both not guilty
In the seven-member panel, Federal Court judge Nallini Pathmanathan was the only one who decided that Malaysiakini
was not in contempt of court, as she felt it had successfully rebutted
the presumption under Section 114A of being the publisher of the five
comments.
This was because she found that the evidence as a whole showed that Malaysiakini was unaware of the five comments and that there has been no challenge against such evidence, further stating that Malaysiakini
as an online content service provider would only be presumed to be a
publisher if it has “knowledge” of the comments posted by third parties.
“If it does not, then it cannot be said to have published those
comments because knowledge is a necessary element of publication,” she
said.
Justice Nallini also said the content code only attaches liability to internet intermediaries such as Malaysiakini
as a publisher from the time it became aware of the existence of
third-party comments, with a “flag and takedown approach” as soon as
they become aware.
The judge said it would be untenable to suggest that Malaysiakini
is bound to take steps from preventing such comments from appearing on
the site given that the comments can be posted at any time. She then
noted this would otherwise mean that Malaysiakini and all other
intermediaries with a comments section, “including Facebook and Twitter
users”, would have to provide supervision day and night.
Noting that Malaysiakini took down the objectionable content
within 12 minutes of being alerted, Nallini described it as an
“immediate response” which demonstrated Malaysiakini’s intention to not allow such contemptuous material on its website.
• Constructive knowledge test: Ought to have known
test not applicable, persons making comment should bear responsibility
instead of Malaysiakini
Justice Nallini said the “ought to have known” test should not apply,
as it would mean that an online news portal would be liable as soon as
comments by third parties appear on its website, even if it removes such
comments “because it will be caught by the test that it ought to have
known and anticipated that comment before it could be posted”.
Such a test would effectively make an online intermediary liable for
not taking steps to prevent the making of unlawful comments, which would
not be in line with the objective of the Communications and Multimedia
Act (CMA) of not permitting internet censorship, she said.
Citing the content code’s
Section 4.1(b) and Sections 11.1, the judge noted that the content code
also provides that the creator of online content has the primary
responsibility, and that a provider which hosts internet content like Malaysiakini
is not required to monitor the activities of its users and subscribers,
or to block access by its users or subscribers to any material unless
directed to do so by the complaints bureau.
The judge also noted the content code’s Section 10, which provides
that in a situation where an internet content host is alerted to a user
providing prohibited content and when it can identify the user, the host
has two working days to inform the user to remove the content within 24
hours. The host also has the right to remove said content if the user
does not do so.
“Finally, Section 98(2) of the CMA stipulates that compliance with
the Code is a defence against a prosecution or action or proceeding of
any nature whether in court or otherwise regarding a matter dealt with
in that code. It is significant that Malaysiakini acted in compliance with the Code,” the judge said.
Unlike the majority ruling, Justice Nallini concluded that Malaysiakini
was not the publisher of the five comments when they first appeared on
June 9 as it had no knowledge of them then, and only had knowledge of
said comments on June 12, after which they were removed within 12
minutes.
The judge said Section 114A does not apply to Gan and that he is not implicated under the facts of the case.
Concluding that both Malaysiakini and Gan did not publish
the third-party comments, the judge said this means that it was not
possible for them to have “intention to publish”, an element which must
be proved beyond reasonable doubt to show that there was contempt of
court under the category of “scandalising the court”.
Justice Nallini disagreed with the majority ruling’s approach of
inferring that there was “publication” and “intent to publish” through
the use of constructive knowledge test, saying the “you ought to have
known” test cannot be applied against an online content provider who is
not the author of the comments.
“It is after all the author who is the person who committed the primary offence. Malaysiakini
is not the primary perpetrator. So, while the concept of ‘you ought to
have known’ may be applicable to the primary perpetrator, it is neither
sound nor sustainable in law to extend such an inference to a party once
removed from the author or primary perpetrator.
“It becomes a fiction to maintain that Malaysiakini knew of
the existence of the comments and chose and intended to publish the
same,” she said, concluding that the attorney general failed to
establish beyond reasonable doubt that Malaysiakini and Gan had
the required knowledge of the existence of the third-party comments and
deliberately intended to publish the comments.
“The respondents have, moreover, apologised unreservedly for
indirectly being involved in the airing of these contemptuous
third-party comments. Therefore, they are not liable in contempt,” she
said, while also noting however that all online portals should be
vigilant of the serious offence of contempt of court and act to prohibit
any attempts to erode the confidence of the public in the judiciary.
The full summaries of both the majority and minority rulings can be read here. It should be noted, however, that these are not the full grounds of the decisions.
Malaysiakini's lead counsel Datuk
Malik Imtiaz Sarwar speaks to reporters at the Federal Court in
Putrajaya February 19, 2021. ― Picture by Hari Anggara
4. No knee-jerk reactions, but why the Malaysiakini rulings are important
In explaining the Federal Court rulings based on the two sets of summaries read out in court, Malaysiakini’s
lead counsel Datuk Malik Imtiaz Sarwar on Friday told reporters that
the majority ruling now means that any news site that hosts a platform
allowing comments must moderate such comments before publication to
avoid liability, even if the content code of conduct actually allows a
window of two days to take down the offensive material after it has been
posted.
Noting that the Federal Court recognised that this case was a novel
issue and unprecedented, and that there was uncertainty on how to deal
with this issue, Imtiaz said: “Both the majority and minority took steps
in their view to explore and understand how the legal principles apply
to addressing this issue of third-party comment and liability. So I
think we should all step back a bit, understand the thinking behind it,
and then I think we will be able to better appreciate what the thinking
is”.
“But snapshot, that’s what happened. The implication is that even
though there’s no direct involvement, if you could have been involved
and you could have taken steps to moderate but you didn’t, then you are
culpable. So that may have a bearing on Facebook and Twitter, but as I
said, we have to look at the judgments before we understand,” he said.
“The court was setting a policy position for the courts below in
order to send a clear signal on how to treat this. The effect of it, I
think that has yet to be understood on free press and so on.
But we must remember this is not a case about a journalist commenting
or writing an opinion, it is about third parties leaving comments on a
portal, so that’s an important point to take into account,” he said.
Imtiaz however urged against any “knee jerk” reactions to the
summaries of the judgments, and said the full grounds of the Federal
Court rulings would have to be studied.
“It is an important decision because it makes clear, any
organisations that host sites which allow for third-party comments, what
is expected of them. Before this judgement, we had no guidance; now we
do. Whatever the feelings may be about the judgement, that is the law
the Federal Court has clarified by a majority of six to one, and we have
to respect that,” he said.
Asked how the Federal Court ruling in Malaysiakini’s decision would affect comments made by users on Facebook pages, he noted that the majority ruling had said Malaysiakini’s situation was different from a court case in India’s supreme court.
In the case in India, a lawyer was found guilty of contempt for
tweeting contemptuous remarks, but the Twitter account was found not
guilty as the nature of such accounts is that there is no control over
what is being posted. The Federal Court’s majority ruling had said: “We
do not agree that Malaysiakini is similar to Twitter account. Malaysiakini has full control on what is publishable and what is not.”
With the Federal Court distinguishing or saying that Malaysiakini’s
case is different from that involving a Twitter account, Imtiaz said he
would not be in a position to say how the Federal Court ruling would
apply to social media sites Facebook and Twitter, based only on the
summaries of the judgements.
“On the face of it, I would think there is basis to say that you
could similarly take issue with postings left on Facebook and Twitter.
But it’s a bit premature, so let’s wait for the judgments,” he said to
reporters.
Malaysiakini's lead counsel Datuk
Malik Imtiaz Sarwar speaks to reporters at the Federal Court in
Putrajaya February 19, 2021. ― Picture by Hari Anggara
5. Target achieved
With the prosecution seeking for a RM200,000 fine and Malaysiakini suggesting a nominal fine of up to RM30,000, the Federal Court eventually decided to fine the news outlet RM500,000 with the amount to be paid by next Wednesday.
Amid messages of solidarity from civil society groups and expressions
of concern from the foreign missions of US, UK, Canada in Malaysia over
freedom of expression and media, Malaysiakini managed to raise more than RM500,000 within hours of the launch of its fundraising campaign. - Malay Mail, 21/2/2021.
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