Mkini Dotcom, editor-in-chief fail in bid to set aside AG’s leave for commi al proccedings

PUTRAJAYA: Mkini Dotcom Sdn Bhd and Malaysiakini editor-in-chief failed in their bid to set aside the leave obtained by the A orney-General (AG) to commence commi al proceedings against them.

Court of Appeal President Datuk Rohana Yusuf who led the Federal Court seven-member bench unanimously dismissed the application and set July 13 to hear the merits of the contempt of court proceedings.

In her decision, Rohana said looking at the nature of the impugned comments which implicated the judiciary as a whole, and also included the Chief Justice of the Federal Court, the court was of the view that the Federal Court is the right forum to commence the commi al proceedings.

She said the court was also of the view that by virtue of Section 114 of the Evidence Act 1950, the applicants (Mkini Dotcom and editor-in-chief) were presumed to have published the impugned comments.

Justice Rohana said a prima facie case has been made out as the words were contemptuous and prima facie there has been the publication by Malaysiakini as those statements appeared on their news portal.

She said the court also agreed that the non-compliance by the AG in not issuing a formal showcause notice to Mkini Dotcom and its editor-in-chief pursuant to Order 52 Rule 2B of Rules of Court 2012 was not fatal or prejudicial to the applicants.

“Pending the final disposal of the ma er, we hereby direct parties not to make any comment on this case to avoid sub judice,” she said.

The other judges presiding were Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim and Federal Court judges Datuk Seri Mohd Zawawi Salleh, Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli.

On June 17, the Federal Court allowed AG Tan Sri Idrus Harun’s ex-parte application for leave to commence commi al proceedings against Mkini Dotcom, the company which runs news portal Malaysiakini and its editor-inchief Steven Gan.

The AG’s application for leave to start commi al proceedings against Mkini Dotcom and Gan was in relation to five readers’ comments on an article published by Malaysiakini on June 9 titled “CJ orders all courts to be fully operational from July 1” which was deemed offensive.

Earlier in yesterday’s proceedings, lawyer Datuk Malik Imtiaz Sarwar representing Mkini Dotcom and Gan, argued that the AG’s application for leave ought to have been filed in the High Court and not directly in the Federal Court as it deprived his clients of their right to appeal.

He also submi ed that there was no requirement in law for online news portal to moderate comments prior to their being posted, adding that news portals cannot be expected to moderate all contents published by third parties.

Malik also contended that the AG had not shown that the applicants or either one of them were directly involved in the posting of the comments. He said the comments were taken down within approximately 12 minutes from the time the company’s executive director R.K. Anand was alerted by police on June 12.

Senior federal counsel Suzana Atan appearing for the AG argued that the reason the case was filed in the Federal Court was because of the nature of the comments made against the judiciary as a whole and also on comments pointing to the highest office of the Palace of Justice.

She also submi ed that the show-cause notice cannot be a condition precedent to the commencement of contempt proceedings by the AG in his capacity as guardian of public interest.

She said the applicants had facilitated and provided the platform for people to comment so they have sufficient control over the platform they provided to the public.

Suzana said the applicants should exercise their responsibility by taking down the comments almost immediately and not only removed the comments upon being notified, adding that the comments were posted on June 9 and was only taken down on June 12.

Pending the final disposal of the ma er, we hereby direct parties not to make any comment on this case to avoid sub judice. Datuk Rohana Yusuf