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Monday, February 22, 2021

You have our respect, Justice Nallini

 


More than five decades ago, the late celebrated judge Lord Alfred Thompson Denning had underscored the importance of freedom of speech.

Speaking of the law of contempt, the then Master of Rolls said the legislation would not be used to curtail critical views against the courts. After all, judges and their judgments are not infallible.

"Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations," Denning said.

"Nor will we use it to suppress those who speak against us.

"We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest… we must rely on our own conduct itself to be its own vindication," he added.

Last Friday, the Federal Court ruled that Malaysiakini was guilty of contempt with regard to five readers' comments deemed to have traduced the men and women in robes.

So grave was the offence that the judges decided to raise the quantum of the fine from the RM200,000 requested by the prosecution to RM500,000.

The news portal's unreserved apology did nothing to salve the wound.

A successful donation drive suggested that the verdict was "overturned" in the People's Court hours later. The offensive comments hitherto read by a handful of people became the subject of international attention.

Malaysiakini argued it had no knowledge of the comments - whose tone and tenor it regretted - but six of the seven judges were of the view that it "ought to have known".

It can be argued that the indignation of the readers, who no doubt should have been more civil in expressing their discontent, is understandable albeit misplaced.

Furthermore, the perception that Lady Justice is not in blindfold when it concerns certain high-profile cases is not something novel in Malaysia. This has been raised for decades.

The comments had come in the wake of a deluge of corruption charges being dropped against former Sabah chief minister Musa Aman.

The dissatisfaction was misdirected at the courts when it was the Attorney-General's Chambers which withdrew the charges.

The dissenting judge

Disagreeing with her peers, Federal Court judge Nallini Pathmanathan ruled that Malaysiakini had rebutted the presumption under Section 114A of the Evidence Act.

According to Section 114A, any registered user of network services is presumed to be the publisher of a publication sent from a computer which is linked to that network service, unless the contrary is proved. When it was introduced in 2012, protests were held as this was clearly against the fundamental principle of innocent until proven guilty.

Nallini argued that in totality, the evidence pointed to the fact that at the time when the comments were first visible to readers, the respondents were unaware of their existence and content until it was brought to their attention.

"They have given sworn evidence of this fact, and there has been no challenge to this evidence given on oath," she added.

Focusing on what she described as the "heart of the case", Nallini asked if the respondents had no knowledge of the existence and content of the third-party comments, can it be said they "published" those comments?

"And further can they be said to have 'intended to publish' the impugned comments by reason of the fact that they are the hosts of an internet portal news site?" she added.

The late Lord Alfred Thompson Denning

Nallini concluded that Malaysiakini could be considered to be the "publisher" of the comments only if it had knowledge of the existence and content of the comments posted by third parties.

"If it does not, then it cannot be said to have published those comments because knowledge is a necessary element of publication," she said.

Arguing that her position on this matter is fortified by the provisions of the Communications and Multimedia Act (CMA) and the Malaysian Communications and Multimedia Code (Code) within it, she said the latter prescribes that an internet intermediary such as Malaysiakini, is only affixed with liability as a publisher, from the point in time when it actually became aware of the existence and content of the third-party comments.

"To suggest that intermediaries such as the respondents are bound to take steps to prevent such comments from appearing on the site, means that apart from the filtering system, the respondents and all other intermediaries with a comments section including Facebook and Twitter users will have to provide supervision throughout the day and night.

"This is in light of the evidence from the respondents that comments may arise at any time during the day or night and at any point of time in the future.

"That, to my mind, with respect, appears to be an untenable proposition. And that is why Parliament in its wisdom adopted the 'flag and takedown' approach that enables the intermediaries to respond as soon as they acquire knowledge," she added.

In concluding that knowledge is a prerequisite for publication in the context of contempt, Nallini said: "I have rejected the 'ought to have known' of the existence of such comments or a 'constructive knowledge' test as being the applicable basis or test on which to determine whether the element of publication is made out."

"Under such a test, an online news portal is affixed with liability as soon as the third party impugned comment appears on the portal and it will be unable to avoid that consequence, even if it removes the impugned comment, because it will be caught by the test that it ought to have known and anticipated that comment before it could be posted," she added.

Respect is earned

The law often described as an "ass" is a convoluting subject and critics have argued that its provisions and loopholes can be interpreted and exploited to suit a particular agenda.

To the layperson, Nallini's ruling appeared to satisfy the simple test of common sense and natural justice. For this, she has earned our respect.

Returning to Lord Denning.

In 1964, a woman litigant, frustrated that her leave to appeal a judgment had been dismissed, flung law books at him and two other judges in court.

According to a news report, the books flew past the ear of Denning and struck the panelling behind him. Neither he nor the two other judges on the dais showed agitation.

Denning then ordered the woman to leave and as she left, remarked: "May I congratulate your lordship upon your coolness under fire."

Recounting the incident in his book "The Due Process of Law", Denning said the woman had hoped to be cited for contempt to draw attention to herself.

In conclusion, respect is earned and cannot be forced.

Perhaps it would bode well for those in positions of power to indulge in introspection to better understand the reasons behind the resentment and trust deficit instead of penalising critics.

To quote retired Indian Supreme Court judge Markandey Katju, "Either the criticism was correct, in which case I deserved it, or it was false in which case I would ignore it. 

"Sometimes an honest and learned judge is unjustifiably criticised. But for one such person criticising an upright judge, one hundred people will immediately rush to his defence... Why then should judges get upset or be afraid of criticism, particularly when we are living in a democracy?"


RK ANAND is the executive editor of Malaysiakini.

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