The Malaysian Insight

GOVERNMENT lawyers could not prove that Malaysiakini and its editor-in-chief Steven Gan had knowledge or intent to publish five readers’ comments, which were later deemed to be contemptuous, the news portal’s legal team argued at the Federal Court today.

At a contempt hearing presided by a seven-member panel led by Court of Appeal president Rohana Yusuf today, lead counsel Malik Imtiaz Sawar said neither the news portal nor Gan intended to publish the comments made by third parties.

The comments were published on the news portal in response to an article on June 9, which reported Chief Justice Tengku Maimun Tuan Mat’s directive to the courts to reopen on July 1, following the easing of movement restrictions. 

Malik said Gan had no knowledge of the comments until 12.45pm on June 12. It was removed 12 minutes after the news portal was alerted by police, the court heard. 

He further argued the government could not prove beyond reasonable doubt regarding intentional publication, adding that the news portal had no realistic means to vet the more than 2,000 comments made by its readers daily. 

Attorney-General Idrus Harun initiated the contempt proceedings against the portal and Gan based on five readers’ comments that were critical of the judiciary. He said this had violated Section 114A of the Evidence Act.

Senior federal counsel S. Narkunavathy meanwhile said that Section 114A clearly stated that a person who facilitated to publish or republish the comments was presumed to have published or republished the contents.

She further argued that Malaysiakini and Gan should be liable for contempt because they had not put in place a system that would prevent the publishing of comments.

As the publisher and editor of the comments, they must assume editorial responsibility for the comments posted on their online platform, Narkunavathy added. 

“They cannot use the lack of knowledge or sheer volume to shirk this responsibility.

“If the question is the sufficiency of safeguards the respondents have put in place, we say there are not enough.”

She said the government had taken note Malaysiakini has more than 2,000 comments posted daily and that it has 25,000 subscribers, with eight million unique visitors monthly.  

“All this underlines the importance for the respondent to exercise control and assume responsibility for the comments section,” she added. 

The senior federal counsel also said the comments were not made within the limits of reasonable courtesy and good faith, and that they will undermine public confidence in the judiciary, and ridicule, scandalise and offend the integrity of judiciary. 

She reminded the court it was within its power to ensure that public confidence in the judiciary is not undermined. 

The comments, which implied and alleged corruption in the judiciary, were previously read out in court, as were the user names.

Also serving on today’s panel were Chief Judge of the High Court of Malaya Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, and Federal Court judges Abdul Rahman Sebli, Vernon Ong Lam Kiat, Nallini Pathmanathan and Mohd Zawawi Salleh. 

If found guilty, the news portal and Gan could be fined. The 58-year-old editor could also go to jail.

Present at the court today were Malaysiakini chief executive officer Premesh Chandran and several Malaysiakini employees. – July 13, 2020.