Sunday, August 02, 2020

Malaysiakini Contempt - Court independently decide whether any contempt? Right to 2 appeals must be preserved?

In the Malaysiakini contempt case, now before the Federal Court, there are several  issues of concern, that will impact even future cases.

Some of these concerns are:-

1 - The Court Must Independently Evaluate and Decide Whether a Comment or Statement is contemptuous or not? It does not matter what the applicant or comment says or agrees to, the Court must decide for itself whether it is contemptuous -  even if the parties agree that it is a contempt? Such agreement between parties, may be wrong and may be for some other purposes including an attempt to mitigate - get a lower sentence.

2. - This must be the FIRST STEP - because if the court decides that the comment and/or statement is not contemptuous, OR even not sufficiently contemptuous, for the court to proceed with the contempt hearing, then the court must end the contempt proceedings then and there, without any further waste of time, monies and energy. The court may in its consideration also consider the availability of other existing laws, which could deal with such statements and/or comments, and in Malaysia today, there are other laws which could be used for things said or expressed.

3 -  A contempt proceeding especially of this particular kind of contempt of 'scandalizing the court/judges', should best never be heard by the party/ies who is personally or directly affected by the said comment/statements - then it akin a trial conducted by the victim themselves, not an independent entity, and this goes against the fundamental principle behind the right to a FAIR TRIAL, where an essential pre-requisite is that it is heard by an INDEPENDENT judge/court.

4 -  This particular contempt, being the 'contempt of scandalizing the courts/judges and/or judiciary' is an ancient contempt, that may be relevant during ancient feudal times, when people did not have the right to say/do things that are critical of the King, Rulers, the Kings Judges, officers, etc.

5 - Times have changed, and in the modern democracies, the right to free speech and expression is in fact encouraged, for what the public feels and thinks is important in determining the operation of government, including the judiciary. People's comments, including allegations and suspicions, irrespective of whether they are baseless or even wrong, have led to investigations and even prosecution of wrongdoers. It has also led to policy and legal reforms, as in a democracy unlike a feudal state, the government is of the people and for the people. Public opinions and positions, that change, also do impacts judicial decisions today. Speaking their mind is today encouraged, and people will base their expressions on what they know - many of the comments, subject to the current contempt proceeding, really was based on maybe an incorrect understanding of the courts roles where certain politicians and/or family member had been discharged and/or acquitted. The CJ's clarification, which should have came sooner, which came after the contempt proceedings had commenced, will help correct the wrong public perception/understanding now. A speedy response or clarification are always helpful to battle wrong perceptions - not speedy contempt proceedings, or even other criminal actions.

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.(Malay Mail, 10/7/2020)

5 - It is best, if the court, in its judgment also clarifies what is contempt and why it is a contempt. Can questions raised, which are not statements of fact or even opinions be subject to contempt proceedings? Are questions not simply raising points for people to think about? This is important for public education, about what they can say and how they should say it for it to be not contempt.

6 - Judges are not infallible - they too can make mistakes, or even commit crimes. Suppressing people's comments about judges and courts may have a negative impact. Allegations, which can be true or false, really should never be criminalized. Judges too can sue anyone for defamation, if they believe they were defamed. Criticism of institutions of government will help bring about reforms and improvements.

DENIAL OF THE RIGHT TO 2 APPEALS - a fundamental right to review or correct errors of lower courts

6 - A more important issue, when the Federal Court is the court of first instance. When it is the Federal Court, then the right to 2 appeals is denied. This is a fundamental right in our criminal justice system, that allows the Appellate Courts to determine the correctness of the judgment of lower courts, and correct judicial errors if need be. Likewise, contempt proceedings should best be started at the High Court, or lower courts.

7. A possible exception maybe for contempt arising by reason of non-compliance of the Federal Court order, and maybe contempt committed during Federal court proceedings where the court itself initiates the contempt proceedings. For the later, it could also start at the High Court, could it not > to avoid the alleged victim being placed in the position of judge. Would an alleged victim be able to remain independent?

AMICUS CURIAE(Friend of the Court) submission.

8. For the Malaysiakini contempt case, I, being a lawyer too, send an amicus curiae submission to the Federal Court, and also the AG's chambers(being the Applicant) and other parties in the proceedings. I send it before the hearing, and such submissions usually will be read and considered by the court before it makes its final decision. Sadly, the submissions send by email, did not receive any acknowledgment of receipt - which really is a minimum courteous response from anyone. I may thus share this submission later. PLEASE, JUDGES OF THE FEDERAL COURT, DO CONSIDER MY SUBMISSIONS BEFORE DECIDING ON THE MALAYSIAKINI CONTEMPT CASE.

See earlier related posts:-

Judgement on Malaysiakini's contempt case deferred

PUTRAJAYA: The Federal Court today deferred judgement on whether Malaysiakini and its editor-in chief are guilty of contempt over five readers' comments which appeared in the comments section of an article on the news portal that allegedly scandalised the judiciary.

After hearing submissions in the contempt proceedings, Court of Appeal president Datuk Rohana Yusuf, who chaired a seven-member panel, said the court needs time to deliberate the matter.

"We will inform parties on the date of the decision later," she said before adjourning the proceeding.

The other judges on the bench were chief judge of Malaya Tan Sri Azahar Mohamed, chief judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim, and Federal Court judges Datuk Seri Mohd Zawawi Salleh, Datuk P. Nallini, Datuk Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli.

The contempt bid was initiated by Attorney-General (AG) Tan Sri idrus Harun against Mkini Dotcom Sdn Bhd, the company which runs Malaysiakini and its editor-in chief Steven Gan, which he named as the respondents over five readers' comments which the AG contended had undermined the country's judiciary.

Earlier, senior federal counsel S. Narkunavathy, who appeared for the AG, submitted that under Section 114A of the Evidence Act, the news portal had facilitated the publication of the comments.

She said by facilitating the publication of the comments, the respondents were presumed to have published the same.

"This presumption is pursuant to Section 114A," she said.

Narkunavathy also submitted that Malaysiakini had not installed a software system to prevent the publication of offensive comments.

She said the respondents were liable for failing to do so.

On the point of having to prove intention in a contempt case, Narkunavathy said it was unnecessary in the case of publication.

"We are saying that intention is not necessary for publication. They (respondents) provided the platform and they allowed it (the comments to be published)," she said.

She submitted that the ease and availability of access to ventilate grievances through social media has extended the avenue of freedom of speech, and with the extension of this freedom, comes the increase of responsibility.

"(This is) especially for parties which provide the platform in which such freedom is exercised," she said.

Meanwhile, lawyer Datuk Malik Imtiaz Sarwar, who represented Malaysiakini and Gan, argued that there was no intentional publication by the respondents.

He submitted that neither Malaysiakini nor Gan was involved in the publishing of the comments on the online news portal or authored the comments.

Malik said Gan was merely the editor-in-chief and does not have control of the comments uploaded by users.

He added that Malaysiakini was unaware of the comments until 12.45pm on June 12 and that the comments were taken down 12 minutes later once it was made aware of them.

This, he said, showed that there was no intentional publication.

He also argued that actual intention to publish the alleged contemptuous comments must be proven to invite contempt.

But in this case, he said merely showing publication does not invite contempt.

Mere facility for posting comments is not enough to attract legal responsibility," he said.

Idrus initiated the contempt proceedings, saying that Malaysiakini and Gan had facilitated the publishing of five readers' comments which undermined the country's judiciary and were embarrassing and offensive.

The comments appeared in the comment section of an article published on the news portal entitled "CJ orders all courts to be fully operational from July 1" on June 9.

He had, in his affidavit, contended that the comments "clearly meant that the judiciary committed wrongdoings, was involved in corruption, does not uphold justice and compromised its integrity."

He said the news portal erred in facilitating the publication of the comments which were "unwarranted and demeaning" attacks on the judiciary.

On June 17, the court gave a green light to institute the proceedings after allowing Idrus' ex-parte leave application on grounds that prima facie for contempt has been established to initiate the proceedings.

Malaysiakini and Gan had subsequently filed a bid to set aside the leave obtained by the AG, but it was rejected by the federal Court on July 2.

If found guilty of contempt, the news portal and Gan could be fined, or the 58-year-old editor could be jailed. - New Straits Times, 13/7/2020


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