Contempt of Court against Malaysiakini

Brief facts:

On 15 June 2020, a committal application for contempt of court against Malaysiakini and others was filed directly to the Federal Court by Attorney-General Idrus Harun for the comments made by its readers under this news article herein provided: https://www.malaysiakini.com/news/529385...

On 19 Feb 2021, the Federal Court found Malaysiakini liable for contempt by scandalizing the court, and thereof, has ordered Malaysiakini to pay a fine of RM500k for contempt.

What is "Contempt of Court"?

Based on the case of AG v Times Newspaper Ltd [1973] 3 All ER 54 citing the words of Lord Diplock in verbatim, "'Contempt of court' is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes". In short, conducts that would undermine public confidence in the Judiciary could be legally deemed as a contempt of court which shall include conduct in facilitating the publication of scandalous comments.

Essentially, the concept of contempt of court is created to protect public confidence in the Judiciary and the administration of justice (PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd [2019 6 CLJ 1).

However, is 'Contempt' in conflict with the fundamental right to freedom of speech?

The answer is 'No' because your right to freedom of speech is not absolute. Given that Malaysia practices constitutional democracy, our rights are confined to what is defined in the Federal Constitution. It is to be noted that Article 10 of the Federal Constitution allows Parliament to limit the right of free speech or freedom of speech by enacting law in dealing with contempt. For the actual wordings, please read Article 10(2) of the Federal Constitution. Hence, power of the courts to order against contempt of court is without a doubt constitutional (see Article 126 of the Federal Constitution and Section 13 of the Courts of Judicature Act 1964).

Thus, without dwelling into the merits of the case, which also I am not in the right position to make any comments on the decision made, I am positive that the learned Judges had perused every evidence available in reaching its decision to hold Malaysiakini in contempt for allowing publication of the scandalous comments under its new article as have provided above.

However, with all due respect, what bothers me as to the case is that the leave panel had actually allowed AG Tan Sri Idrus Harun to initiate contempt proceedings against Malaysiakini directly (my emphasis) at the Federal Court. The Federal Court in granting leave in the case of Peguam Negara Malaysia v MKini Dotcom Sdn Bhd [2020] 7 CLJ 173 held that, at para 6, as delivered by Rohana Yusof PCA:

"The other grounds relied upon by the respondents to set aside the leave are the followings:

(i) O.52 r 2B of the Rules of Court 2012 - Procedural Requirement

On the requirement of notice pursuant to O. 52 r 2B which has not been complied with, on the facts of this case, we agree that the non-compliance is not fatal or prejudicial to the respondents.

(ii) Commencement at Federal Court

Looking at the nature of the impugned comments earlier elaborated, which implicate the Judiciary as a whole, which also include the Chief Justice of the Federal Court, we are of the view that this court is the right forum to commence these proceedings."

Now, in addressing point (i), it is stated by the learned PCA that non-compliance of Order 52 r 2B is not fatal to the case of the AG nor does it prejudice MalaysiaKini. Order 52 r 2B reads:

"In all other cases of contempt of Court, a formal notice to show cause why he should not be committed to the prison or fined shall be served personally"

I, with utmost humbleness, is unable to agree with this ground of decision. Citing the case of Lokman Noor Adam v PP [2020] 10 CLJ 435 (CA), it was acknowledged by the Court of Appeal that O. 52 r 2B plainly and unambiguously requires a notice to be given before action. As stated by the Court of Appeal:

"if the Rules Committee had intended otherwise, i.e., for the court to issue such notice after leave was given, such would be plainly stated in the Rules. It is pertinent to note that r 2B was placed, in the order of rules before the r. 3 which deals with the next step in proceeding in the process of obtaining leave."

Therefore, compliance with O. 52 r 2B is clearly and expressly required, provided the application by AG Idrus Harun was made under O. 52 of the Rules of Court. Regrettably, the judgment didn't mention the procedural rules, laws, codes or orders of which the application to commence committal proceeding was made. However, as far as I know, only O. 52 of the Rules of Court 2012 provides for the application for committal for contempt of court.

Besides, the Federal Court is a creation of the Federal Constitution which contains both appellate jurisdiction and original jurisdiction, and it is clear in this case that the Federal Court has exercised "original jurisdiction" because there wasn't an appeal at all. To my mind, the Federal Court is not conferred by the Federal Constitution nor the Courts of Judicature Act 1964 with such "original jurisdiction" to hear the matter directly. Arguably, R 137 of the Rules of the Federal Court allows the Federal Court the inherent jurisdiction to hear the matter directly. However, citing the case of Badan Peguam Malaysia v Kerajaan Malaysia [2009] 1 CLJ 833,"r. 137 may not be resorted to in the face of an express statutory provision and that [the Federal Court] has no jurisdiction save that conferred by the Constitution and by federal law."

Hence, given that O. 52 provides for the initiation of proceeding for contempt of court (save except for the power to punish summarily of its officers), it is my humble opinion that the Federal Court has no power to hear the matter directly. The reason is simple. O. 52 r 1 provides that "Court" shall mean High Court, Sessions Court and Magistrates' Court only and "Judge" shall mean a High Court Judge, Sessions Court Judge or Magistrate. It is clear that no mention of Federal Court is made under O. 52, and thus, the Federal Court has no jurisdiction to hear an application under O. 52 directly. The only way that this matter can be heard by the Federal Court is via an appeal from the High Court, to the Court of Appeal and finally to the Federal Court.

Given the above, with due respect, I am unable to agree with point (ii) delivered by Rohana Yusuf PCA as well. Point (ii) should not hold water against the clear requirements of the law which clearly spells out the jurisdiction of the Federal Court under the Federal Constitution and the Courts of Judicature Act 1964 but doesn't include O. 52.

Further, it is arguable that in light of Section 81 of the Courts of Judicature Act 1964, the Federal Court "shall have the same jurisdiction and may exercise the same powers as are had and may be exercised by the High Court". In my opinion, this does not confer the Federal Court the jurisdiction to hear the matter directly because if such implication of jurisdiction is made via Section 81, MalaysiaKini will be deprived of the right to appeal which goes against Article 8 of the Federal Constitution (Right to Equality). According to Auto Dunia Sdn Bhd v Wong Sai Fatt [1995] 3 CLJ 485, every natural person or legal person, subject to the legal requirements, has the right to appeal two times though "following the ordinary course of things, there would only be one". It is arguable that the fate of MalaysiaKini will still be the same even with the right to appeal, and I might agree with you, but that doesn't justify the deprivation of the fundamental right to equal treatment before the law regardless of the nature of the matter.

In conclusion, given the explanation above, I am of the opinion, with all due respect, that the leave panel in Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd [2020] 7 CLJ 173 has erred in law in granting leave for the matter be heard directly before the Federal Court.