CAMPAK KASUT CONTEMPT OF COURT LAH CHEE BUY!

 

Written by: Averroes 313

Recently, Malaysia’s social media platforms was taken by storm when recently, the Federal Court decision in Peguam Negara Malaysia v MKini Dotcom Sdn Bhd & Anor (Steven Gan as Ketua Editor)[1] majority held that posts uploaded by third party users on Malaysiakini was considered to be contempt of court. Many were provoked that the decision would continue to bury the Rakyat’s freedom of speech as under article 10(1)(a) and (2) of the Federal Constitution.

The issue traces all the way to 9/6/2020, where the comments were issued as follows (ranked by most compelling);

User 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???

User Victim: The Judiciary in Bolihland is a laughing stock.

User Ayah Punya kata: The High Courts are already acquitting criminals without any trial. The country has gone to the dogs;

User 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!

Due to this, MalaysiaKini and the Ketua Editor conceded that the comments were indeed disparaging, abhorrent, noxious which is classified as contemptuous. Both were contritely regarding the posts, but maintained that it was perpetrated by a third party instead, thus has no rational bearing or nexus with the opprobrious remarks. The Ketua Editor was acquitted since a reasonable doubt case failed to die cast.

In this case, the legal domain surfacing around online systems or technology for legal liabilities, connected with a third party remains ambiguous since no specific jurisprudence developed views. The court then accede to the stance adduced by the Peguam Negara that section 114A of the Evidence Act presumes that MalaysiaKini as the publisher, not the third party.

It was decided that, MalaysiaKini is liable for the ungregarious comments published by their third party subscribers. The Court added that they have full authority and discretion to dictate the contents and filter what is published on their website. It is baffling that they would not have such capability. In Re Prashant Bushan[2] case, MalayskiaKini is not similar to Twitter since they could not effectively regulate numerous of users.

A Limited Company with a coordinated and excellent editorial team and reporting mechanism is paradoxical to refute that they were not alerted by the comments. Even 10 of the editors did not deny their knowledge of the postings. This was similar to the European Court of Human Right case of Delfi AS v Estonia.

However, the dissenting by Nallini Pathmanathan states they had no knowledge, therefore they could not have posted the contents as pursuant to section 114A of the Evidence Act and under the Malaysian Communications and Multimedia Act if they were aware of it.

Other Contempt of Court cases by chronological year:

It is important to take note of the historical development of contempt of court in Malaysia and the sources of its importation here.

1900: In R v Gray[3] (early cases in England adopted into Malaysia), Lord Russell of Kiloween CJ enunciated that, contempt of court is any act or writing published to bring a court or a judge of the court into contempt (scandalizing), to lower his authority, obstruct or interfere with due course of justice or lawful process. However, public criticism is allowed if reasonable which their conduct is contrary to law or public interests. Unless, it was done by scurrilous abuses.

1973: In Times Newspapers Ltd[4], the third-party users could also be liable but was not raised in the MalaysiaKini case. The Times Newspapers case states that, not only those bound by court order, it also encompasses those neither mentioned in the order or assisted in violating the order, if they had the knowledge to intervene with the administration of justice.

1991 (Supreme Court): In Manjeet Singh Dhillon[5] a period of turmoil during 1988 where Tun Salleh Abas was suspended by the Yang Di-Pertuan Agong on advice of Dato’ Seri Dr Mahathir. He later resigned as Lord President and news spread wildfire which initiated the onset for the contempt issue.  

The respondent was liable for contempt of court for maiming the dignity of the Lord President and judiciary. He had alleged the Lord President in his affidavit at para 11(a), claiming him to have influenced the administration of justice in the proceedings brought by Tun Dato’ Haji Mohamed Salleh bin Abas. Furthermore, under para 11(d), that act would correlate to exercising ulterior motives to impede the machinery of justice.

Though, this case cites that the concept of contempt of court is applicable in Malaysia as virtue of section 3 of the Civil Law Act 1956. Article 126 of the Federal Constitution also provides that the Supreme Court or a High Court shall have power to punish any contempt of itself and similarly provided under section 13 of the Courts of Judicature Act 1964.

2012, Federal Court: In Hoslan bin Hussin case[6], the applicant was the imam of the Ar-Rahimah Mosque, but his position was terminated by the respondent and was given notice to vacate his land. The applicant made a leave application, but was rejected by court. He uttered wanton remarks and lobbed his shoe at the bench. It was a contempt of court and was sent to prison for a year. His actions and words were a scurrilous attack which emanated from his angsts and emotional amuck, non-related to fair criticism.

2012, Federal Court: In Dato’ (Dr) Rozali Ismail case[7], contempt of court can be categorized as either criminal or civil. Criminally speaking, contempt is afforded for punishment which threatens the judiciary’s performance, whereas in civil law, it is more analogous to breaching court orders, for instances under Order 52 and its enumerated rules under the Rules of High Court 1980 and Rules of Court 2012 and other legislations with procedural modes for court orders.

2021, Federal Court: In Golden Star[8] case, refusing the Federal Court order was also a contempt of court, since the definition also includes actions, not only through publications which this case referred to Wee Choo Keing v MBf Holdings Sdn Bhd[9], only until that order was set aside.

To conclude, Malaysia adopts the common law contempt of court as well as recognizes it in our Federal Constitution and other legislations. Contempt of court varies in a duo of crime and civil nature. We have learnt that by throwing a shoe, perhaps uttering the words pukimak, pundek, sial, anak harm, babi, cibai and bodoh, fuck anjir in court is very contemptuous. Going against a court order when they have issued an injunction is a civil wrong.

As of the recent decision in MalaysiaKini, this decision needs to have further discussions and analysis from all parties and stakeholders. There is a sense of distraught and dilemma among the Rakyat that this decision would further curtail their rights to speech and subvert a society where communication and the sharing of ideas would diminish.

A mature and progressive society should learn to tolerate and respect amongst themselves, but rash and ungregarious behaviours shall not be permitted, especially when they have to be the scapegoat and take responsibility over other’s mistakes.



[1] PERMOHONAN SIVIL NO.: 08(L)-4-06/2020 (W)

[2] (Crl) No. 1 of 2020

[3] [1900] 2 QB 36

[4] 1973] 3 All ER 54

[5] [1991] 1 MLJ 167

[6] [2012] 4 MLJ 137

[7] | [2012] 3 MLJ 458

[8] [2021] 2 MLJ 259

[9] [1993] 2 MLJ 217

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