Judge Zaleha Yusof, who chaired a seven-member panel, dismissed Malaysiakini’s review application to set aside the previous court’s decision in an online proceeding.
“After consideration, we are not persuaded by the submissions advanced by the applicant (Malaysiakini) on breach of justice.
“The arguments raised before us had already been raised and considered by the (previous) panel hearing the contempt application.
“If assuming for the moment that we agree with the arguments advanced by the applicant’s counsel (Malik Imtiaz Sarwar), we are constrained by lack of jurisdiction to entertain this complaint as this is a review application and not an appeal,” she said.
The panel made no order on costs.
Besides Zaleha, the judges who heard the review were Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Mary Lim, Harmindar Singh Dhaliwal, Rhodzariah Bujang and Zabidin Mohd Diah.
Senior federal counsel Suzana Atan appeared for the government.
Last year, the Federal Court, in a 6-1 majority ruling, found Malaysiakini in contempt of court. The court imposed a RM500,000 fine against the news portal.
Court of Appeal president Rohana Yusuf, who delivered the majority decision, had said Malaysiakini could not claim that its filter system failed to remove offensive comments when, in fact, it deliberately chose to only filter foul language, “though we remain perplexed how these comments even passed its filter, looking at the language of the impugned comments”.
She said the three safeguards adopted by Malaysiakini proved to have failed and did not efficiently control or prevent offensive comments from being published.
“The surrounding circumstances of the present case strongly suggest that the impugned comments were published without reservation and were only taken down upon being made aware of by the police,” she said.
Rohana said the majority could not accept such failed measures as a complete defence, and Malaysiakini could not unjustifiably and irresponsibly shift the entire blame onto its third party online subscribers, while exonerating itself of all liabilities.
“In short, as stated in the application of the attorney-general, Malaysiakini facilitates the publication of contemptuous comments by third party subscribers,” she said.
Rohana said none of Malaysiakini’s 10 editors came forward to deny knowledge and explain how these abusive comments escaped their attention.
She said Malaysiakini must at least ensure that the public was exposed to balanced discussions on issues of public concern and did not post demeaning posts that ridiculed the judiciary and undermine public confidence.
She said the portal’s defence that the Malaysian Communications and Multimedia Commission (MCMC) content code shielded it from liability arose from a wrong interpretation of the code.
Attorney-General Idrus Harun began contempt proceedings against Malaysiakini and co-founder Steven Gan on June 16, 2020. He said they had facilitated the publication of comments by readers which undermined the country’s judiciary.
The comments in question appeared in an article dated June 9, 2020 titled “CJ orders all courts to be fully operational from July 1”.
Idrus had said the comments “clearly meant that the judiciary committed wrongdoing, is involved in corruption, does not uphold justice and compromised its integrity”.