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.
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