Apex court dismisses Mkini’s review bid over contempt, RM500k fine
Malaysiakini today failed in its application to overturn the Federal Court’s ruling that found the news portal in contempt over readers' comments.
A seven-panel apex court bench chaired by Zaleha Yusof unanimously dismissed Malaysiakini’s application for a review of the Federal Court decision on Feb 19 last year...
Malaysiakini today failed in its application to overturn the Federal Court’s ruling that found the news portal in contempt over readers' comments.
A seven-panel apex court bench chaired by Zaleha Yusof unanimously dismissed Malaysiakini’s application for a review of the Federal Court decision on Feb 19 last year.
The other members of the panel were Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Mary Lim Thiam Suan, Harmindar Singh Dhaliwal, Rhodzariah Bujang, and Mohamad Zabidin Mohd Diah.
The panel, due to the matter being of public interest, made no order as to costs.
On Feb 19 last year, a majority 6-1 Federal Court decision, led by Court of Appeal president Rohana Yusof, found Malaysiakini guilty of contempt.
The apex bench, in its finding, meted out an RM500,000 fine, far higher than the RM200,000 sought by the Attorney-General’s Chambers.
The lone dissenting judgment of last year’s panel was from Federal Court judge Nallini Pathmanathan, who held that Malaysiakini was not in contempt over the readers’ comments.
The news portal has since paid off the RM500,000 fine through fundraising.
During proceedings conducted online via Zoom, Zaleha noted that the gist of submissions - put forward by Malaysiakini’s lawyer Malik Imtiaz Sarwar for the review - was that the news portal was allegedly denied the right to natural justice.
Under the law, the right to natural justice basically refers to the fundamental right to a fair hearing.
Zaleha said the panel was not convinced by submissions put forth by the news portal’s lawyer regarding the alleged breach of natural justice.
“All arguments before us (by Malaysiakini’s legal team) has already been raised and considered before the (Federal Court) panel that heard the contempt application (last year).
“Assuming that for a moment that we agree with the applicant's counsel, we are constrained by the account of jurisdiction as this is a review and not an appeal.
“We are constrained to dismiss this (review application). As this is a public interest matter, we make no order as to costs,” Zaleha ruled.
The respondent in this matter, namely the attorney-general (AG), was represented by senior federal counsel Suzana Atan and K Saravanan.
No actual knowledge
Earlier during the online hearing, Malik submitted that last year’s apex court majority ruling was premised on multiple issues that Malaysiakini was allegedly not given the opportunity to properly respond to.
The lawyer said among these are the issue of Malaysiakini having no actual knowledge to commit contempt via the uploading of the offensive readers’ comments.
Malik claimed that Attorney-General Idrus Harun only filed one written submission for last year’s hearing, and that the Attorney-General’s Chambers (AGC) did not file any affidavit in reply to the news portal’s various affidavits on the knowledge issue.
According to the affidavits by Malaysiakini editor-in-chief Steven Gan among others, the news portal’s editors were not aware of the offensive readers’ comments until alerted by police, by which the comments were immediately deleted.
The lawyer said that if Malaysiakini had been put on proper notice of the issue, then it could have taken more time to file further affidavits in response to the matter.
However, in response, Suzana countered that last year’s Federal Court bench had already taken all these issues into consideration for the majority verdict.
The senior federal counsel contended that the apex bench had already then looked at the AGC’s arguments that the committal of a news portal is possible based on the presumption of publication, per Section 114A of the Evidence Act 1950.
Section 114A creates a presumption that any registered user of network services is presumed to be the publisher of a publication, sent from a computer which is linked to that network service, unless proven to the contrary.
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