Seven-member panel finds A-G had established prima facie case to initiate contempt proceedings against the portal and its editor-in-chief.
Mkini Dotcom Sdn Bhd and Malaysiakini editor-in-chief, Steven Gan failed in their bid to set aside the leave obtained by the Attorney-General (AG) to commence committal proceedings against them.
Court of Appeal President Datuk Rohana Yusuf who led the Federal Court seven-member bench unanimously dismissed the application and set July 13 to hear the merits of the contempt of court proceedings.
Rohana delivered the decision, which she said was made unanimously by the panel members.
According to the judgement, the panel of judges found that the Attorney-General Idrus Harun had established prima facie to initiate the contempt proceedings against Malaysiakini and Gan.
Rohana said the issue raised by counsel Malik Imtiaz Sarwar over the proceedings being initiated at the highest court had also been deliberated.
“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 other judges on the panel 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.
On June 17, a Federal Court three-member bench allowed Idrus Harun’s ex parte application for leave to commence committal proceedings against Mkini Dotcom – which runs news portal Malaysiakini – and Malaysiakini’s editor-in chief.
The bench allowed the leave application on grounds that a prima facie case for contempt was established.
The application was in relation to five comments on an article published by Malaysiakini on June 9 entitled “CJ orders all courts to be fully operational from July 1”.
Malaysiakini then filed to set aside the leave order obtained by the AG, which was heard today before the seven-man panel.
Lawyer Malik Imtiaz Sarwar said Malaysiakini had not knowingly published the comments in question.
“Comments by its subscribers are automatically published,” he said, adding that the offensive remarks would be removed if there was a complaint.
He also said the contempt proceedings should have begun in the High Court instead of the Federal Court as it denied his client the two-tier appeals.
“The matter should begin in the High Court as the alleged contempt was directed at the judiciary and not Chief Justice Tengku Maimun Tuan Mat,” he added.
Gan, dressed in a dark grey suit, sat in the public gallery of the courtroom with Malaysiakini co-founder and CEO Premesh Chandran. Several of the portal’s staff waited outside the courtroom in support of Gan.
“The court has ordered that we should not say anything more on the subject, and I’m not at liberty to comment on this issue,” Gan told reporters outside the courtroom.
“We will definitely be fighting it the best we can when we come back here on July 13.”
In court papers filed on June 15, Idrus Harun said the comments were critical of Tengku Maimun’s directive to the courts to reopen on July 1, following the easing of movement restrictions.
Malaysiakini and its Gan were represented by lawyers Surendra Ananth, Malik, and Khoo Suk Chyi, while the attorney-general was 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).
Malik said the website’s automated filter only censors explicit language on the average of some 2,000 comments received daily.
The court was also informed that the news portal has 25,000 subscribers. Malik added that there were no legal obligations to censor comments before publication.
The lawyer also questioned why the matter was brought straight to the apex court instead of the high court, where Malaysiakini and Gan, 58, would be afforded two levels of appeal.
Suzana argued that the apex court must hear the matter as the comments impugned the chief justice directly.
The comments, which implied and alleged corruption in the judiciary, were read out in court, as were the usernames.
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.
Suzana also said the news portal was irresponsible as it had left the comments made on June 9 and only removed them on June 12 after being notified by the police.
“They should exercise that responsibility by having control, with a taking-down policy that immediately removes such comments.
“The intent is they failed to moderate or take a more active role in the comment section they provide for subscribers,” she said.
If found guilty, Gan could face a prison sentence and a fine, while Malaysiakini also faces a fine.