AGC must reconsider contempt action against news portal, say ex-Bar chiefs

THE Attorney-General’s Chambers must reconsider its contempt of court proceedings against Malaysiakini over readers’ comments published on the news portal, said former Malaysian Bar chairmen.

They argued that Malaysian laws must refrain from holding a media agency and its editor-in-chief responsible for readers’ comments unless they are retained after a complaint has been made.

Secondly, the overarching principle of contempt of court is to ensure that freedom of speech is not compromised, said the former presidents, some of whom are prominent human rights activists.

The joint statement was issued by Kuthubul Zaman Bukhari, Yeo Yang Poh, Ambiga Sreenevasan, Ragunath Kesavan, Lim Chee Wee, Christopher Leong, and Steven Thiru.

On June 22, Attorney-General Idrus Harun cited Malaysiakini and editor-in-chief Steven Gan over readers’ comments in response to a June 9 article about the chief justice’s directive to the courts to reopen on July 1, following the easing of movement restrictions.

Idrus, in his affidavit, cited five comments that allegedly conveyed the impression that “the judiciary committed wrongdoings, is involved in corruption, does not uphold justice and compromised its integrity”.

The Federal Court has granted leave to for the AGC’s application and has fixed July 2 for parties to appear.

Malaysiakini has filed for the AGC’s move to be set aside, which will be heard in the apex court on the same date.

In his affidavit, Gan said, due to the high volume of such comments, it was not possible for Malaysiakini to directly moderate comments and thus, it had to rely on a peer reporting process.

In their joint statement today, the former Bar chiefs said allowing readers to post instant unscrutinised comments is a “new normal” for the internet media.

“Such features and platforms find their rightful place and value in public discourse, in contemporary societies, as part of democratic space,” they said.

“Scrutiny by the media agency of a particular posted comment occurs if and when a complaint about the impropriety of the comment is made or communicated to it.

“This, we believe, is a responsible approach that the internet media all over the world adopt.”

Malaysian laws, they said, must accommodate this practice and to do otherwise would have a chilling effect on free speech.

They also cited a Federal Court ruling in Rozali Ismail v Lim Pang Cheong [2012] in arguing that the principle of contempt of court is to prevent undue interference in the administration of justice.

They cited para [21] of the ruling which states:

The jurisprudence for arming the court with the power to punish a contempt is best expounded by Brown J in Re HE Kingdon v SC Goho [1948] MLJ 17 as follows: But the root principle on which this inherent power to punish for contempt is founded, and the purpose for which it must be exercised, is not to vindicate the dignity of the individual judge or other judicial officer of a court or even of the court itself, but to prevent an undue interference with the administration of justice in the public interest.

The former Bar chiefs said these principles are critical to a functioning democracy, and should not be sacrificed.

They argued that the law the AGC relies on, Section 114A of the Evidence Act 1950, is flawed.

The law states: (i) that those named as the owners, administrators and editors of a publication are deemed to have published the contents of that publication;

(ii) that a person registered with a network service provider as a subscriber, is the person who published any content that originates from usage of that registered network service;

(iii) that a person who has custody or control of any computer, is the person who published any content that originates from that computer.

The Bar and civil society have consistently opposed Section 114A, saying it is an unlawful reversal of the burden of proof, is oppressive and anti-democratic.

“Its utility is spurious. It is a repugnant law that has no place in a true democracy.” – June 29, 2020.

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