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 contemptuous and 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 Justice Tan 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 initial finding, 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 by prosecutors, 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 Chapter 8.Contempt by publication (2)— scandalising the 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:-
8.54 The ALRC summarised the ‘principal responses’ to the argument that public confidence is needed to support the judicial system:
• 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
8.55 Further, 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.
8.56 The assumptions underlying scandalising contempt and the available evidence testing these assumptions are considered in three contexts. 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 political communication
• 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 ‘…8.72 Despite 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.]:
The absence of a constitutional guarantee does not mean that Australia should accept judicial inroads upon freedom of speech which are not found necessary or desirable in other countries. At stake is not merely the freedom of one person; it is the freedom of everyone to comment rightly or wrongly on the decisions of the courts in a way that does not 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 for the 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.
Dated 11th July 2020
Charles Hector Fernandez (BC/C/712)
Messrs Charles Hector
Lot 3585A, Kampung Lubuk Layang,
Batu 3, Jalan Mentakab,
28000 Temerloh, Pahang
Tel:- + 6 019 2371100
Email:- easytocall@gmail.com
****END of submission****
See earlier relevant posts:-
Malaysiakini Contempt decision HIGHLIGHTS again why draconian section 114A Evidence Act must be repealed - it shifts burden of proof from the prosection/accuser to the accussed?
Malaysiakini Contempt - Summary of Majority and Minority Court Decisions... RM500,000 for contempt? Issues that need REFORMS?
Simplified: The 'Malaysiakini' decisions in the Federal Court — what the judges decided and why it matters
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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.
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”.
.jpg "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.
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.
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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