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Federal Court decision tomorrow on Malaysiakini's contempt case

Malaysiakini will know tomorrow the outcome of a contempt of court case against the news portal over a number of comments posted by its readers.

After two postponements due to the movement control order (MCO) which was enforced in Putrajaya, the Federal Court at the Palace of Justice is set to deliver its verdict at 9am.

According to an email from the Chief Registrar’s Office of the Federal Court, journalists are to follow proceedings not from the courtroom but via a live broadcast from the assembly hall at the Palace of Justice.

As part of measures to curb the spread of Covid-19, media photographers and videographers covering the case are only allowed to gather at the lobby of the Palace of Justice.

A seven-member panel, led by Court of Appeal President Rohana Yusuf, completed hearing arguments on the case seven months ago.

On July 13 last year, the Federal Court reserved judgment on the attorney-general's contempt bid against the independent news portal and its editor-in-chief Steven Gan.

Justice Rohana said the bench needed time to deliberate on the matter.

Also on the panel are Chief Judge of the High Court of Malaya Azahar Mohamed; Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim; and Federal Court judges Mohd Zawawi Salleh, Nallini Pathmanathan, Vernon Ong Lam Kiat and Abdul Rahman Sebli.

At the hearing, Malaysiakini submitted that intention was necessary to prove contempt.

"It must be intentional publication, there must be an intention to publish scandalous material. Mere facility (providing the comment section) for posting comments is not enough to attract legal responsibility," Malaysiakini's lead counsel Malik Imtiaz Sarwar told the court.

Malaysiakini's lead counsel Malik Imtiaz Sarwar

Malik noted that if the mere facility is all it needs to cite one for contempt, then the court would be kept busy with cases involving many companies for alleged contempt.

This would then have a chilling effect in terms of the exercise of freedom of speech under Article 10 of the Federal Constitution, among others.

However, senior federal counsel S Narkunavathy, who was representing the attorney-general, argued that there was no requirement in law to demonstrate that Malaysiakini had the intention to publish the comments that were contemptuous towards the judiciary.

"They provided the platform, they allowed it (to be published)," Narkunavathy said.

Watching briefs

Attorney-General Idrus Harun had initiated the contempt proceedings in June last year over the comments of five readers in a Malaysiakini news report, which have since been removed.

Attorney-General Idrus Harun

The court also ordered both parties to refrain from making comments on the matter - which has prompted various organisations, both in Malaysia and abroad, to express concern over the implications of the legal action – until its decision.

In addition to Malik, Malaysiakini and Gan are represented by Surendra Ananth and Khoo Suk Chyi, while Idrus is represented by senior federal counsel Narkunavathy and Suzana Atan.

Among the organisations holding watching briefs are the Bar Council, Human Rights Commission (Suhakam), International Federation of Journalists (IFJ), National Union of Journalists (NUJ), Centre for Independent Journalism (CIJ) and Gerakan Media Merdeka (Geramm).

Should Malaysiakini and Gan be found to be in contempt, sentencing could be handed down on the same day. There is no legal limit to the penalties for contempt of court. Among the possible outcomes include Malaysiakini being slapped with a fine and/or Gan be jailed. 

This is the first time Malaysiakini is being cited for contempt of court in its 21-year history.

Editor's Note: Based on legal advice, the commenting feature for this article has been disabled.