A general view of the Federal Court in Putrajaya February 15, 2022. — Bernama pic
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.
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.
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 for facilitating of 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.
What happened in today’s hearing
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 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.
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 would have 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).
MORE TO COME