Apex Court seven-man panel dismisses Malaysiakini's review bid to overturn contempt conviction, fine

PUTRAJAYA: A seven-member Federal Court panel today dismissed a review application by Malaysiakini to overturn a Federal Court's decision which found the online news portal guilty for contempt over comments by its readers.

The panel led by Justice Puan Sri Zaleha Yusof held that the arguments raised in today's review proceedings by counsel Datuk Malik Imtiaz Sarwar, representing Malaysiakini operator Mkini Dotcom Sdn Bhd, had been raised and considered by the Federal Court panel hearing the contempt application.

She said the court were not persuaded by the submissions raised by the counsel on issues pertaining to allegation of breach of the rules of natural justice.

Even, if assuming for a moment that the court agree with the argument by Malaysiakini's counsel, the court is constrained by lack of jurisdiction to entertain the complaints as it is a review application and not an appeal, she added.

Justice Zaleha said since the matter is a public interest case, the court would not make any order on costs.

The other judges presiding 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.

On Feb 19 last year, in a 6-1 majority decision, a Federal Court seven-member bench led by Court of Appeal President Tan Sri Rohana Yusuf, found Mkini Dotcom guilty of contempt of court for facilitating in the publication of five readers' comments and fined the company RM500,000. Mkini Dotcom paid the fine.

The Federal Court, on June 17, 2020 had allowed Attorney-General's ex-parte application to obtain leave to commence committal proceedings against Mkini Dotcom and its editor-in-chief Steven Gan over readers' comments on an article published by Malaysiakini on June 9, 2020, entitled "CJ orders all courts to be fully operational from July 1" which was deemed offensive.

The court, however, found Gan not guilty of contempt of court.

In the review application filed only by Mkini Dotcom, the company sought to set aside the earlier Federal Court's decision and a re-hearing of the contempt proceedings.

In today's proceeding conducted online, Malik Imtiaz argued that Malaysiakini had been prejudiced as the majority judgment of the Federal Court dealt on certain issues which was beyond the Attorney-General's argument.

He said Malaysiakini would not have been found guilty for contempt of court if the case was based only on the Attorney-General's case as the later had conceded on some points that favoured the portal.

Malik Imtiaz said the Federal Court panel, in arriving at the majority decision, had occasioned serious breaches of the rules of natural justice, resulting in a miscarriage of justice.

He also said Malaysiakini was not asked or given the chance to clarify during the contempt hearing on issues that formed the foundation of the majority judgment.

Senior federal counsel Suzana Atan representing the Attorney-General, however, submitted that the review application was without merit as the Federal Court panel hearing the contempt proceedings had made findings of facts and on law based on evidence that was adduced in the court.

She said the review application is an attempt to re-submit arguments that had already been submitted in the contempt proceedings.

The other lawyers representing Mkini Dotcom were Surendra Ananth and Khoo Suk Chyi, while federal counsel Saravanan Kuppusamy also represented the Attorney-General.

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) and National Union of Journalists Malaysia (NUJM).

-- BERNAMA