Will the Federal Court finally abolish 'scandalizing of the judiciary/court' in democratic Malaysia, where Freedom of Expression/Opinion is an important democratic right?
Criticism including highlighting flaws or alleged wrongdoings in the judiciary or judges ought to be a right of all Malaysians. The Federal Court will decide soon on this freedom, when it decides on the Malaysiakini contempt case - which is about readers comments posted.
It will be a sad state of affairs when the RIGHT to express one's opinions and views about the government of the day, including the Judiciary are suppressed.
REFORM can happen when criticisms that highlight flaws and/or inadequacies happen which will lead to analysis and suggested reforms that will enhance the administration of justice and also government operations.
People, most have little or no knowledge as to how proper, none defamatory and none contemptous criticisms ought to be made, but that really should not matter if we believe in Freedom of Expression and Opinions in our democracy.
If someone says something 'wrong' - the proper response would be for a statement in response by the party concerned, clarifying matters, correcting wrongs, etc > not by criminal prosecution, contempt actions and/or even defamation suits which will only silence the masses - hence slowing down reforms, etc.
Whilst contempt proceedings have been commenced against Malaysiakini and its chief Editor, no action taken against the 'commenters' - Was it the judge(or the Chief Judge) that caused the initiation of the contempt proceedings, or was it the AG acting on his own? Or was it a result of some government request?
Malaysiakini contempt proceedings will be heard by the Federal Court on 13/7/2020 - and serious questions arise again.
Criticism including highlighting flaws or alleged wrongdoings in the judiciary or judges ought to be a right of all Malaysians. The Federal Court will decide soon on this freedom, when it decides on the Malaysiakini contempt case - which is about readers comments posted.
It will be a sad state of affairs when the RIGHT to express one's opinions and views about the government of the day, including the Judiciary are suppressed.
REFORM can happen when criticisms that highlight flaws and/or inadequacies happen which will lead to analysis and suggested reforms that will enhance the administration of justice and also government operations.
People, most have little or no knowledge as to how proper, none defamatory and none contemptous criticisms ought to be made, but that really should not matter if we believe in Freedom of Expression and Opinions in our democracy.
If someone says something 'wrong' - the proper response would be for a statement in response by the party concerned, clarifying matters, correcting wrongs, etc > not by criminal prosecution, contempt actions and/or even defamation suits which will only silence the masses - hence slowing down reforms, etc.
Whilst contempt proceedings have been commenced against Malaysiakini and its chief Editor, no action taken against the 'commenters' - Was it the judge(or the Chief Judge) that caused the initiation of the contempt proceedings, or was it the AG acting on his own? Or was it a result of some government request?
Malaysiakini contempt proceedings will be heard by the Federal Court on 13/7/2020 - and serious questions arise again.
Will the Federal Court, once and for all, abolish this archaic contempt of scandalizing the court/judiciary? UK already did.
Lord Lester also said, ' We support that view that abuse of a judge in the face of the court, or behaviour that otherwise interferes with particular proceedings, should remain a contempt.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 - see the full text of the UK House of Lord discussions when UK abolished the contempt of scandalizing the court/judiciary at 'Scandalizing the Court' a contempt that should be abolished in Malaysia? Freedom of expression and duty to highlight suspected wrongdoings/mistakes more important?
What CONTEMPT - well, reading media reports about the Malaysiakini case, it is not clear - all we know is that it was with regards to some Reader's comments to some news report.
Well, the impact of this case will affect all ONLINE media (including blogs/websites that welcome reader's comments)
Well, the impact of this case will affect all ONLINE media (including blogs/websites that welcome reader's comments)
The case is very important, as it will seriously impact on Freedom of Expression/Opinion, Media (and the ability of readers/public to comment on a media report) and people's participation in Malaysia.
Will all media and also social media end up barring people's ability to comment? Will media now have to now engage lawyers to vet and go though each and every comment before it is published?
Will all media and also social media end up barring people's ability to comment? Will media now have to now engage lawyers to vet and go though each and every comment before it is published?
Media and politicians who are concerned about freedom of expresion and/opinion? Anwar? Mahathir? DAP? Political parties? MEDIA owners?
All those concerned with freedom of expression and opinion of the ordinary lay person including the various different media owners will also be joining this case, to at least hold watching brief - or even maybe putting in an 'amicus curiae'(friends of the court) submission for the court's consideration before judgment is made.
Well, it is also about the people's freedom of expression/opinion - So, are our politicians and political parties also going to be participating in this case - Will Anwar, Mahathir, Kit Siang, Pakatan Harapan, MPs, etc all be there in court holding watching brief at least or are they not bothered about citizen's right to freedom of expression/opinion?
What contempt is the Malaysiakini case all about?
Looks like it may be the contempt of scandalizing the court/judiciary - this is an old contempt, which have been abolished by countries like the United Kingdom.
Looks like it may be the contempt of scandalizing the court/judiciary - this is an old contempt, which have been abolished by countries like the United Kingdom.
Normally, contempt ought to be with regard to disobedience of a court order...or bad behaviour in court that disrupts court proceedings - hence, this is an ODD kind of contempt, not even initiated by the Judges concerned, but by the Attorney General...
Tommy Thomas, our previous Attorney General, during the reign of the Pakatan Harapan plus government brought to life again this 'contempt' - when similar contempt actions were commenced against lawyer/writer Arun Kasi, and then lawyer Shafie Abdullah...Arun Kasi was found guilty by the Federal Court also, and was sentenced to 30 days’ jail and fined RM40,000. Shafie was successful in stopping this contempt action.
See earlier posts:-
Lawyer Guilty of 'scandalising the court' contempt, and jailed...time to abolish this contempt in Malaysia?
'Scandalizing the Court' a contempt that should be abolished in Malaysia? Freedom of expression and duty to highlight suspected wrongdoings/mistakes more important?
Maybe not proper for Tommy Thomas to act for AG in this contempt proceedings Arun Kasi?
Federal Court proceeds with contempt case against Malaysiakini over readers’ comments
When explaining why there was a prima facie case or a case for Malaysiakini to answer, Rohana said the five readers’ comments read out in court today were “contemptuous” in nature and Malaysiakini had prima facie or on the surface published the comments as they had appeared on the news portal.
Among other things, Rohana said the judges found that the facts showed that Malaysiakini facilitates publication of comments; that its editorial policy allows for the editing, removing and modifying of comments; the Malaysiakini had removed the five comments after being alerted by the police; and that the editors of Malaysiakini reviews postings on a daily basis.
Citing Section 114A of the Evidence Act, Rohana also said the judges found that Malaysiakini was presumed in law to have published the five comments, but also highlighted that the presumption could be rebutted.
(Under Section 114A, a person whose name, photograph or pseudonym appears on any publication depicting him to be the owner, host, administrator, editor or sub-editor, or who in any manner facilitates the publishing or republishing of a publication, is presumed to have published or republished the contents of the publication, unless it is proven otherwise.)
As for the attorney general’s failure to issue a show cause notice to Malaysiakini before asking the courts to start the contempt of court proceedings, the Federal Court noted that this failure to comply with procedures as required under the law was “not fatal” or “prejudicial” to Malaysiakini and its editor-in-chief Steven Gan.
Although Malaysiakini had argued that the attorney general should have filed for the contempt of court proceedings at the High Court instead of pursuing it directly at the Federal Court, Rohana said that the panel of seven judges felt that the Federal Court was the right court for the proceedings to start.
When explaining why the contempt of court proceedings could start at the Federal Court, Rohana said this was due to the nature of the five readers’ comments ― that were alleged to be in contempt of the courts ― implicating the judiciary as a whole, which she said also included the “Chief Justice of the Federal Court”. (In the five comments read out in court today, one of them had specifically mentioned the chief justice.)
“Based on these reasons, the application is hereby unanimously dismissed,” Rohana said, referring to Malaysiakini’s application to set aside the Federal Court’s previous decision to grant leave for the case to go on.
The Federal Court said it would hear the actual contempt of court proceedings against Malaysiakini on July 13.
The Federal Court also directed both the attorney general who had wanted Malaysiakini to be cited for contempt, as well as Malaysiakini and its editor-in-chief to not make any comments on this case until a final decision is reached, in order to avoid sub judice. (Sub judice is a term referring to the situation where matters have yet to be decided by the courts and limits public discussions on the matter until it is decided on.)
The other judges on the panel today are Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim, Datuk Seri Mohd Zawawi Salleh, Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, and Datuk Abdul Rahman Sebli.
Malaysiakini had last Thursday filed for an application to set aside the leave granted by the Federal Court for the contempt of court proceedings to proceed.
About the case
On June 16, Attorney General Tan Sri Idrus Harun was reported to have filed an application dated June 15 to initiate the contempt of court proceedings against Mkini Dot Com Sdn Bhd and Malaysiakini’s “Ketua Editor”, over five comments left by its readers on the news portal’s comment section under a June 9 news report titled “CJ orders all courts to be fully operational from July 1”.
Malaysiakini previously said, however, it removed the comments within 12 minutes after it was alerted to these on June 12.
In court papers, the attorney general said that the readers’ comments contained words which Malaysiakini and its “Ketua Editor” should have known were an insult to the judiciary in general and to the chief justice specifically, threatened public confidence towards the judiciary, insulted and tarnished the dignity and integrity of the judiciary.
In his affidavit, the attorney general claimed that the readers’ comments allegedly carried the meaning that the judiciary had “committed wrongdoings, is involved in corruption, does not uphold justice and compromised its integrity”.
The attorney general claimed that Malaysiakini was considered to have published the comments by facilitating their publication, arguing that this amounted to a contempt of court due to the comments’ content and meaning, as well as the comments exceeding the limits of making sincere criticism and allegedly being a demeaning and unwarranted attack on the judiciary.
On June 17, the Federal Court granted leave to the attorney general to start the contempt of court proceedings against Malaysiakini and its chief editor.
Contempt of court can be punished by imprisonment or fine or both, with Malaysiakini having previously noted that there were no legal limits to the imprisonment period or the amount of the fine.
Malaysiakini and its editor-in-chief Steven Gan were represented by lawyers Surendra Ananth, Malik Imtiaz Sarwar, Khoo Suk Chyi, while the attorney general were represented by senior federal counsels Suzana Atan and S. Narkunavathy.
Lawyers that held a watching brief today were Datuk Joy Appukuttan for the Bar Council, New Sin Yew for the International Federation of Journalists and the National Union of Journalists Malaysia, Yusmadi Yusoff for press groups Gerakan Media Merdeka (Geramm) and the Centre for Independent Journalism (CIJ).
Earlier today before the Federal Court delivered its decision, Malaysiakini’s lawyer Imtiaz had argued that the attorney general has to show that Malaysiakini had intention to publish the five comments and had knowingly published them, before Malaysiakini could be said in law to have actually published the comments and be held legally responsible for contempt.
Highlighting that the law on contempt of court requires the showing of intention to commit contempt, Imtiaz said however that Malaysiakini did not knowingly publish the comments.
About 2,000 comments are posted daily on Malaysiakini’s website.
Imtiaz noted that Malaysiakini’s comments system allows for its subscribers to have their comments automatically uploaded on to the news portal, while Malaysiakini does not carry out any prior modifications of the comments before they are uploaded and only has a filter to automatically block comments from being posted if certain profanities are detected.
“The important point is that the law in this country does not require online media to pre-censor. There is no legal obligation to do that,” he said when noting that Malaysiakini and news sites were not legally required under the law to moderate comments before they are posted by their readers.
Malaysiakini can however review and take down any comments if alerted by its readers, Imtiaz explained.
Based on the facts of the case which he said the AGC had not disputed, Imtiaz said it was not disputed that both Malaysiakini and Gan had not written and were not involved in the five comments, or that both of them were not actually aware of the comments that were taken down within 12 minutes after the news portal was alerted to them. He said Gan was not involved in the matter.
Imtiaz highlighted that the media’s role was to also generate public discussion, while also accepting that there are limits to the freedom of expression.
Imtiaz argued that finding a site that hosts discussions responsible for contempt would have wider consequences such as having internet service providers (ISPs) possibly even being held responsible simply for providing facilities that enabled comments to be made online, later arguing that the passive role of facilitating a discussion or comments without knowing involvement is not sufficient to show that a person has committed contempt.
Imtiaz also highlighted that the attorney general had failed to comply with written legal requirements — under Order 52, Rule 2B of the Rules of Court — to issue a show-cause notice to Malaysiakini first before seeking leave to start contempt proceedings, pointing out that this was a clear-cut requirement stated in law.
He also noted that the attorney general’s application to start contempt proceedings had also failed to specify Gan’s name and his correct designation as editor-in-chief when such details were important in this quasi-criminal matter, with “Ketua Editor” being a wrong designation.
Imtiaz also argued that the attorney general should not have initiated contempt proceedings at the Federal Court, but should have started the process at the High Court which would allow Malaysiakini the option of going through two tiers of appeals before reaching the Federal Court. Imtiaz said going straight to the Federal Court would mean that Malaysiakini would be denied its statutory right to appeal.
Citing Article 126 of the Federal Constitution which the attorney general relied on to start the contempt proceedings against Malaysiakini, Imtiaz pointed out that it empowers the Federal Court, Court of Appeal or High Court to punish any contempt of itself, but noted that the attorney general had described the five comments as being in contempt of the judiciary as a whole and not specifically the Federal Court itself.
Because of this and to allow Malaysiakini the right to appeal, Imtiaz then urged the Federal Court to decline jurisdiction to hear the case, but with the attorney general to be free to pursue the contempt of court proceedings in the High Court.
Imtiaz also highlighted that contempt cases usually involve those who refuse to take down contemptuous comments or who refused to share information with the authorities, but pointed out that Malaysiakini had immediately taken down the comments after being alerted to them and had also divulged information on those who had posted comments to the police and Malaysian Communications and Multimedia Commission (MCMC).
Imtiaz said the attorney general could instead take the alternative action of seeking information on those who had posted the comments and directly pursue action against them.
.JPG "Senior Federal Counsel Suzana Atan is pictured at the Federal Court in Putrajaya November 14, 2019. — Picture by Miera Zulyana")
Citing Section 114A, Suzana argued that Malaysiakini had “facilitated” the publication of the comments by providing a platform where the public could comment and that Malaysiakini would therefore be presumed in law to have published the comments, arguing that the news portal had sufficient control over the platform and that there was no need to prove intention since it was presumed to have published the comments.
While agreeing there is no law currently requiring Malaysiakini to moderate or pre-censor comments before they are uploaded to the site, Suzana insisted that the news portal should have assumed the responsibility over the service of carrying comments by doing more such as by having moderators to moderate the comments immediately. In this case, Suzana said the comments were present on Malayasiakini’s website for several days before they were notified by police about the comments on June 12.
Admitting that the AGC did not issue any show cause notice to Malaysiakini, Suzana argued that it is not a prerequisite to do so in this case. Suzana said that a show cause notice would usually allow a person accused of being in contempt of court orders to rectify matters by complying with the order, but said the Malaysiakini case was different as the allegedly contemptuous remarks had already been made.
Suzana said that the application to start contempt proceedings was filed at the Federal Court instead of the High Court as the nature of the comments were made against the judiciary as a whole and as one of the comments referred to the highest office of the Istana Kehakiman or Palace of Justice, noting that the comments had made personal attacks and referred to the chief justice.
Imtiaz however later noted that the contempt application made by the attorney general did not refer to the highest office in the judiciary, but referred to the entire judiciary.
On the point of the contempt application having named Malaysiakini’s “Ketua Editor” instead of naming Gan and his actual title as Editor-in-Chief, Suzana argued that “Ketua Editor” was the Malay translation for editor-in-chief. - Malay Mail, 2/7/2020
AG obtains permission to start contempt proceedings against Malaysiakini
The contempt proceedings were initiated after readers of the portal left comments on a story it published on June 9 titled ‘CJ orders all courts to be fully operational from July 1’.
PUTRAJAYA (June 17): A three-member Federal Court bench has today granted leave for Attorney General Tan Sri Idrus Harun (pictured) to initiate contempt proceedings against news portal Malaysiakini.
The panel, which was led by President of Court of Appeal Justice
Datuk Rohana Yusof, fixed July 2 to hear the merits of the application.
Besides Justice Rohana, the other judges on the bench were
Federal Court judges Tan Sri Mohd Zawawi Mohd Salleh and Justice Puan
Sri Zaleha Yusof.
Senior federal counsel Alice Loke, who is head of the civil division
of the Attorney General’s Chambers, appeared for Idrus while counsel
Surendra Ananth appeared for Malaysiakini.
Both Loke and Surendra confirmed with theedgemarkets.com that leave had been granted to Idrus.
The contempt proceedings were initiated after readers of the portal left comments on a story it published on June 9 titled ‘CJ orders all courts to be fully operational from July 1’.
Idrus, who was formerly a Federal Court judge, had filed the ex-parte
application to start contempt of court proceedings on Monday against Malaysiakini and its editor-in-chief.
He claimed in an affidavit that five comments left on the story had
“clearly meant that the judiciary committed wrongdoings, is involved in
corruption, does not uphold justice and compromised its integrity”.
“The comments have undermined public confidence towards the judiciary
and are clearly intended to bring the administration of justice by the
judiciary into disrepute,” he added.
He claimed that by enabling the publication of these comments, Malaysiakini is deemed to have published these comments and has thus committed contempt of court.
Malaysiakini reported that officers from the Bukit Aman
police headquarters had taken the statement of its editor-in-chief
Steven Gan over the matter.
According to the portal, the case is being investigated under the Communications and Multimedia Act 1998 and the Penal Code.
Gan said it would cooperate with the police and consult its lawyers on the contempt proceedings. The Edge Markets, 17/6/2020
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