PUTRAJAYA (March 29): A seven-member Federal Court bench on Tuesday (March 29) unanimously dismissed a review filed by newsportal Malaysiakini over last year's apex court decision in finding the portal in contempt over readers' comments posted on a Bernama article over the judiciary for which the portal was fined RM500,000.
Federal Court Judge Justice Puan Sri Zaleha Yusof, who led the bench, said they were not persuaded by the submissions forwarded by the applicant (Malaysiakini), and that the issues raised and considered are a relitigation of its appeal.
“The learned counsel of the applicant had treated the matter as if this was an appeal. Even if we agree, with the arguments advanced we lack the jurisdiction as this is a review application and not an appeal, and hence we are constrained to dismiss this review.
“The review is hence dismissed and no order is made as to costs,” she said.
The other members of the bench that made the unanimous decision were Federal Court Justices Datuk Zabariah Mohd Yusof, Datuk Seri Hasnah Mohammed Hashim, Datuk Mary Lim Thiam Suan, Datuk Harminder Singh Dhaliwal, Datuk Rhodzhariah Bujang and Datuk Mohd Zabidin Mohd Diah.
With the decision, and the decision of the previous apex court decision being upheld, news organisations should remain mindful of readers' comments put on their websites.
A review as minimally allowed under Rule 137 of the Rules of the Federal Court is where the court has the inherent power to inter alia review previous decisions in order to prevent an injustice or an abuse of process.
Majority decision held Malaysiakini in contempt
On Feb 19 last year, a seven-member bench led by the number two in judiciary Tan Sri Rohana Yusuf in a six-to-one majority decision held that five Malaysiakini readers' comments on the judiciary were “simply scurrilous and irreprehensible” in finding the portal guilty of contempt of court.
Justice Rohana said the unwarranted attack was incendiary and exposed the judiciary to embarrassment, public scandal, contempt and to the point of belittling it.
“Not only that, it had tarnished the judiciary as being guilty of corrupt activity and compromised its integrity in carrying out judicial functions. As submitted by the Attorney-General’s Chambers representatives, the comments were not made within the limit of reasonable courtesy or decency and far from good faith.
“Such impugned comments, if allowed to continue, would undermine public confidence in the judiciary. It will ridicule, scandalise and offend the integrity of this institution,” she said in the majority decision and described the comments as “undermining the system of justice in the country" and fined the news portal RM500,000.
In the Feb 19, 2021 decision, it found the portal in contempt but not its editor-in-chief Steven Gan.
On Tuesday, representative of the Malaysian Bar Datuk Joy Appukuttan and lawyer for the National Union of Journalists Malaysia and International Federation of Journalists New Sin Yew held a watching brief of the proceedings.
Portal says majority judgment made findings it is unable to respond to
In the submissions on Tuesday, Malaysiakini counsel Datuk Malik Imtiaz Sarwar, who appeared with Surendra Ananth and Khoo Suk Chyi, told the seven-member bench that their client was not given a proper forum by the previous bench for the right to be heard and this also constituted a breach of natural justice.
Malik said there were issues raised in the majority judgment in February last year, which they had not had the ability to respond to following findings by the bench.
He said it is to be noted that Malaysiakini filed five affidavits over the action brought by the Attorney-General (AG) against the portal, while the AG only responded to one of them, as "it chose not to respond to some of the affidavits filed by our client".
“Hence, in matters concerning pleadings of affidavits, our client had taken the view including an information technology specialist who affirmed that the readers' comments were automatically put up and could only be taken down. This is also stated in the Communications and Multimedia Act (CMA) to prevent censorship of the Internet, that such comments could only be taken down and not removed.
“In this case, the complaint was on a Bernama article on June 9, 2020, quoting the Federal Court registrar's office on the court being fully operational on July 1, 2020 (following the Covid-19 pandemic) and against the backdrop of former Sabah chief minister Tan Sri Musa Aman's 46 corruption and money laundering charges having been withdrawn.
“The offending comments on the article were posted on the same day on June 9, 2020, but were only discovered after the police informed executive editor RK Anand on June 12, 2020 of them, and they were subsequently removed minutes later,” he said.
Malaysiakini's position, he added, was that it had no knowledge that the comments were put up, and the AG's position was that the portal was guilty of enabling or facilitating the publication of the comments.
“The majority, on the other hand, in effect found the portal guilty of an intention to publish the comments. It established a case on a basis of fact that was not put forward by the AG, and which it did not give Malaysiakini a notice that it could respond to. In doing so, the majority was off the view and interpreted provisions of the CMA and not giving the portal the right to be heard,” Malik said.
Senior federal counsel Suzana Atan, meanwhile, argued that what was submitted by Malik amounted to a relitigation of the appeal, which is not warranted in a review hearing.
“They are resubmitting it here in the review application and this bench ought not consider it. We say the portal has presumed knowledge and that they were aware of the comments,” she added.