In February 2021, in a 6-1 majority decision, the Federal Court found Malaysiakini liable for contempt of court over its readers’ comments and a fine of RM500,000 was imposed.
The seven-person bench, chaired by Court of Appeal president Rohana Yusuf, delivered the 6-1 majority decision, with Federal Court judge P Nallini’s dissenting.
In delivering the decision, Rohana ruled that the court needed to consider its public duty to weigh the seriousness of the contempt act, which would ultimately undermine the system of justice in Malaysia.
“The impugned statement (comments) has gone far and wide locally and internationally and the content is spurious and reprehensible in nature, containing the allegation of corruption.”
In an immediate response, senior counsel Malik Imtiaz Sarwar, who appeared for Malaysiakini, said the important takeaway from the decision was that portals that host third-party comments now need to be responsible for those comments.
“Portals like Malaysiakini will have to be responsible for comments that may be offensive and contemptuous. This is the majority view (of the seven-person Federal Court bench),” he said.
“On the face of it (the majority 6-1 judgment), any portal that allows comments must moderate the comments before publication to avoid liability,” he said.
Blatant attacks against judiciary unpunished
This being the case, contrast this with the posts on social media which attacked the judiciary following the conviction and then the jailing of former prime minister Najib Abdul Razak.
Cries of “justice for Najib” and “Najib did not get a fair trial” were heard - insinuating that the judiciary was not independent. These were subsequently posted on TikTok, Facebook, Instagram, X, and other platforms.
Among those who uttered such statements were members of the cabinet that more than bordered on scandalising the judiciary.
The Attorney-General’s Chambers (AGC), which had cited Malaysiakini for contempt, did little as the attacks became intensive.
At almost every gathering of Umno members, leaders continue to shamelessly use this “free Najib” slogan to undermine the judiciary and, in the process, rile up the grassroots.
Yet, they continue to be used, and neither the AGC nor the MCMC has done anything about the proliferation of such contemptuous statements.
Mistrust in enforcement
That may be why some people oppose the new regulations requiring the licensing of internet messaging services and social media sites.
Once registered, the licensees will be held accountable for user interactions on the website that are deemed to break laws including statements violating the Sedition Act or Section 233 of the Communications and Multimedia Act (CMA).
While it does not affect individual users, there seems to be a mistrust that the government would use it to silence critics.
Despite the government’s justifications, electoral watchdog Bersih said it had used draconian laws such as the Printing Presses and Publications Act and the Communications and Multimedia Act in the past as political weapons to investigate and silence critics.
Having called for some sort of control over offensive posts in the past. I welcome the new licensing regime but like Bersih and other civil society groups, I have doubts about the requirements being implemented and enforced fairly.
We have seen how certain sectors of the population have used certain provisions in the CMA selectively and favourably.
Several anecdotal accounts can be found in the archives but what immediately comes to mind is the investigation into allegations of insulting religions.
Religious issues are prime examples
While posts that are deemed insulting Islam are treated expeditiously and the culprits are brought to book and prosecuted, the same cannot be said of those who insult other religions.
On March 22, Ricky Shane Cagampang, 33, pleaded guilty in the Kota Kinabalu Sessions Court to making a Facebook post deemed insulting to Islam concerning the sale of socks bearing the word Allah.
On March 17, he was charged under Section 233(1)(a) of the Communications and Multimedia Act 1998 with misusing network facilities and sentenced to six months in jail and an RM15,000 fine.
The case was investigated, the offender was arrested, prosecutors got the nod from the AGC, and the suspect was then produced in court, convicted, and sent to prison - all in five days.
The same cannot be said of all cases. In at least one, no investigations were carried out.
In April 2021, deputy public prosecutor Ainul Amirah told the High Court that the AGC was unwilling to prosecute Perlis-based preacher Zamri Vinoth Kalimuthu and Multiracial Reverted Muslims founder and president Firdaus Wong for allegedly insulting religious feelings as the police had classified their cases as “no further action”.
In the 15th general election campaign in November 2022, Bersatu leader Muhyiddin Yassin claimed that Pakatan Harapan was an agent of Jews and Christians who was out to colonise Malaysia.
“In Kuala Lumpur and Petaling Jaya, there are Malays attending church on Sundays. They have become Christians,” he said without providing evidence, not that it contained an iota of truth.
But they were enough to cause doubts and create hatred and animosity. Still, nothing happened.
Suspicions justified
I have written on the selective enforcement of the law previously but nothing seems to have changed, and it can be safely assumed that those in authority lack political will or determination.
Every right-thinking Malaysian will welcome any legislation that protects and safeguards the interests of the citizens, but the people are rightly entitled to doubt the motives.
The government has not done anything positive to earn the trust of its citizens. Hence, such views on what I perceive is a good law.
Such thoughts can only be reversed if laws and policies are formulated, applied, and enforced fairly. Even the best laws will face obstacles if there is the slightest deviation or sign of bias. - Mkini
R NADESWARAN is a veteran journalist who writes on bread-and-butter issues. Comments: citizen.nades22@gmail.com.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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