KUALA LUMPUR, March 29 — News portal Malaysiakini today failed its bid to get the Federal Court to review its previous decision that found it guilty of contempt of court for publishing comments from five of its readers back in June 2020.

Federal Court judge Datuk Zaleha Yusof said the seven-man bench that she had chaired was unanimous in their dismissal of Malaysiakini operator Mkini Dotcom Sdn Bhd’s application for a review and rehearing of the previous February 2021 decision.

Zaleha said the seven-judge panel was not persuaded by Mkini Dotcom's arguments that there was a breach of natural justice that would require its case to be reheard.

"All the arguments raised before us had already been raised and considered by the panel hearing the contempt application.

"Learned counsel for the applicant had argued the case before us as if it is an appeal. Even assuming for a moment we agree with the arguments advanced by the learned counsel, we are constrained by the lack of jurisdiction to entertain these complaints as this is a review application and not an appeal.

"As such we are constrained to dismiss this application. Since this is a matter of public interest, we make no order as to costs,” the judge said.

The other judges on the panel today were Datuk Zabariah Mohd Yusof, Datuk Seri Hasnah Mohammed Hashim, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Rhodzariah Bujang and Datuk Mohamad Zabidin Mohd Diah.

As the Federal Court is the highest court in Malaysia, and the application for the review of the Federal Court’s own previous decision is the final route available, this would be the end of Malaysiakini’s legal journey in defending itself against the allegations of contempt of court.

The Federal Court panel of seven judges today is different from the panel of seven judges which had in February 2021 decided on Malaysiakini’s contempt case.

On May 7, 2021, Malaysiakini’s operator Mkini Dotcom had filed an application against the attorney general to ask the Federal Court to review and set aside its earlier majority decision on February 19, 2021 which found the company to be guilty of contempt of court and imposed a RM500,000 fine over the contemptuous comments of five readers that were hosted on its website in June 2020.

Mkini Dotcom also asked the Federal Court to rehear the contempt proceedings against the company.

Mkini Dotcom’s main argument was that the majority decision of the Federal Court in February 2021 had dealt with certain issues without providing the company an opportunity to be heard, and that this amounted to a breach of the rules of natural justice.

Mkini Dotcom also argued that the guarantees to a fair hearing under the Federal Constitution’s Article 5 and Article 8 had been breached, and that the alleged breach of natural justice had resulted in a serious miscarriage of justice.

Malaysiakini's lead counsel Datuk Malik Imtiaz Sarwar speaks to reporters at the Federal Court in Putrajaya February 19, 2021. ― Picture by Hari Anggara

What happened in today’s hearing

The Federal Court’s unanimous dismissal of Mkini Dotcom’s review application was delivered about 50 minutes after the panel had heard arguments by the lawyers for both the company and the attorney general.

Mkini Dotcom’s lawyer Datuk Malik Imtiaz Sarwar argued that his client had been prejudiced as the majority judgment went beyond the attorney general’s own arguments on why Malaysiakini had allegedly committed contempt.

He argued that Mkini Dotcom was not asked or given the chance to clarify during the hearing on the key issues that formed the foundation of the majority judgment.

He added that Malaysiakini would not have been found guilty of contempt of court, if the case was based only on the attorney general’s case as the latter had conceded points that were in Malaysiakini’s favour.

"My argument here is only whether my client had been breached by natural justice by not being given a right to be heard on issues that were pivotal in the majority judgment — the concession on inferred knowledge and constructive knowledge and ability to anticipate comments were critical to the majority judgment. That is the lynchpin, foundation of what the judgment says.

"We say we were clearly prejudiced, it went beyond the case of the AG itself, and the case of the AG — by virtue of the concession, the contempt should have been dismissed,” he said.

"So for those reasons, I think my client is entitled to a rehearing,” he said.

Malik Imtiaz said that if the Federal Court were to set aside its previous decisions in February 2021, this would mean both the majority decision by six out the seven judges and the dissenting judgment by the remaining one judge would be set aside.

"So I’m not trying to cherry pick, I accept that, but I think, given the situation, given the nature, I think it’s only fair my clients be given a chance to address the court fully on all these things the court thought was essential,” he concluded.

Apart from such arguments, Mkini Dotcom had also highlighted Section 3(3) of the Communications and Multimedia Act which stated nothing in that Act shall be interpreted as permitting censorship of the internet.

Mkini Dotcom had pointed out Section 98(2) of the same Act where compliance with the Communications and Multimedia Content Code would be a defence from being prosecuted in court, and said this Section 98(2) is a complete defence for the company against the contempt of court proceedings as the news portal had followed the take-down policy in the content code by removing the five offensive comments.

​Senior federal counsel Suzana Atan argued that Malaysiakini’s application for review and rehearing of the Federal Court’s February 2021 decision was without merit and without basis. — Picture by Miera Zulyana

Senior federal counsel Suzana Atan argued that Malaysiakini’s application for review and rehearing of the Federal Court’s February 2021 decision was without merit and without basis.

She argued that Malaysiakini’s arguments today for a review were baseless as they were the same as those submitted to the Federal Court in February 2021, and that the judges had considered them previously.

The other lawyers who represented Mkini Dotcom today were Surendra Ananth and Khoo Suk Chyi, while federal counsel Saravanan Kuppusamy also represented the attorney general.

Malaysiakini’s editor-in-chief Steven Gan and its co-founder Premesh Chandran were also seen as among the attendees of the hearing conducted via Zoom, while lawyers who held a watching brief were Datuk Joy Wilson Appukuttan for the Bar Council and New Sin Yew for the International Federation of Journalists (IFJ) dan National Union of Journalists Malaysia (NUJM).

Quick recap of Malaysiakini’s case

On June 12, 2020 at 12.45pm, the police informed a Malaysiakini employee that the company was being investigated over five comments by readers in the comments section under a June 9, 2020 news report uploaded on the news website.

Malaysiakini’s editorial team then immediately reviewed the comments at 12.50pm, and removed those five and other comments at 12.57pm the same day.

Malaysiakini said it was not aware of the five comments until the police alert, and said it had removed them within 12 minutes of being made aware.

Malaysiakini editor-in-chief Steven Gan later gave his statement to the police as requested.

On June 26, 2020, Malaysiakini provided details of the five readers to the Malaysian Communications and Multimedia Commission (MCMC) and the police in compliance with a June 24 request by the internet regulator. Malaysiakini has since permanently banned all five users.

While there have been contempt cases that started out at the High Court level, in this case, the attorney general applied to start contempt of court proceedings against Mkini Dotcom and Malaysiakini’s "Ketua Editor” at the Federal Court.

The Federal Court on June 17, 2020 granted leave or allowed the attorney general to start contempt of court proceedings over the facilitating of the publishing of the five comments (which had already been deleted by then).

Malaysiakini’s lawyer previously urged the Federal Court not to hear the contempt of court case as further appeals cannot be pursued there unlike if the case started at the High Court.

But the Federal Court on July 2 decided to proceed with the hearing, which took place on July 13, 2020.

Six of the seven judges on February 19, 2021 found Mkini Dotcom to be guilty of contempt and imposed the RM500,000 fine. The remaining judge dissented and said the company was not guilty of contempt.

Malay Mail’s simplified summary of the Malaysiakini contempt case and the key points of the majority and minority judgments can be viewed here.