The court today heard an application from KiniTV and its two directors, Steven Gan and Premesh Chandran, to strike out the charges against them under Section 233(1)(a) of the Communications and Multimedia Act by declaring it as unconstitutional.

They are contending that the section – which criminalises online publications deemed to be offensive or injurious to the feelings of others – goes against Articles 5, 8, and 10(1)(a) of the Federal Constitution, which confers upon journalists the right to report what is stated by politicians.

Article 5 pertains to the liberty of a person, Article 8 to equality, and Article 10(1)(a) to freedom of speech and expression.

Gan, in his supporting affidavit, said that Section 233(1)(a) was not a proportionate legislation in the interest of the country, as it violated the freedom of expression stipulated in Article 10(2)(a) of the constitution. 

"Hence, the action of filing the charges against us was against the provisions of the Federal Constitution," he added. 

"The action by the MCMC (Malaysian Communications and Multimedia Commission) and the Attorney-General's Chambers to formulate the charge was against Section 3(3) of the Communications and Multimedia Act, which prevents any form of censorship of the Internet, and this is in conflict with Section 233 of the same Act."

Gan, who is also the editor-in-chief of Malaysiakini, claimed in the affidavit that there was mala fide (bad faith) in the charge, as the news portal always had a good relationship with the MCMC in ensuring that offensive comments and posts are removed.

Gan was charged last year, and Premesh, earlier this year, as directors of KiniTV, a subsidiary of Mkini Dotcom Sdn Bhd, for airing an "offensive" video of a press conference held by former Batu Kawan Umno division vice-chief Khairuddin Abu Hassan titled "Khairuddin: Apandi Ali is not fit to be AG and he should quit immediately".

The video was uploaded in both the English and Bahasa Malaysia sections of KiniTV on July 27, last year.

The hearing of the striking-out application was fixed for today at the Kuala Lumpur High Court before Justice Azman Abdullah.

Lawyer K Shanmuga, appearing with James Khong, told the court that they have been informed by DPP Mohd Sophian Zakaria of a similar application made by artist Fahmi Reza to declare Section 233(1)(a) as unconstitutional.

“The Fahmi Reza case is fixed for hearing on Oct 31, and I believe its outcome may have a bearing and may assist the court in its decision.

“For this reason, we asked for the hearing of the notice of motion to strike out the charge be deferred pending the decision in that case. It may be determinative either way,” he said.

Justice Azman then allowed the postponement. 

The judge also allowed a stay of proceedings at the Sessions Court, fixed on Oct 10 and 13, following an application by Shanmuga.

“This is to prevent the court from wasting time in having the hearing of the charge,” he said.

Justice Azman also allowed the hearing at the Sessions Court to be postponed pending the Federal Court decision.