by RAHIMI YUNUS/ pic by RAZAK GHAZALI

MKINI Dotcom Sdn Bhd, the company that controls news portal Malaysiakini, and its chief editor Steven Gan (picture) have failed in their bid to set aside contempt of court proceedings at the Federal Court over “impugned” readers’ comments on its website.

A seven-member panel of the Federal Court unanimously dismissed the application by the respondents to set aside a Federal Court’s ruling that granted Attorney General (AG) Tan Sri Idrus Harun leave to initiate contempt proceedings against the news outlet.

The apex court fixed July 13 for hearing of the case merits.

In ruling her judgement, the Court of Appeal president Judge Datuk Rohana Yusuf said the facts revealed that the first respondent facilitates publications; the editorial policy allows editing, removing and modifying comments; the first respondent indeed removed the comments upon being made aware by the police; and evidence reveals that the editors of the first respondent review postings daily.

“Based on all these facts inter alia, we are of the view the respondents had published the impugned comments and that a prima facie case had been made out.

“We are also of the view that by virtue of Section 114A of the Evidence Act 1950, the respondents are presumed to have published the impugned comments. The presumption is a rebuttable one,” Rohana said in leading the bench at the Federal Court in Putrajaya yesterday.

The judge said they were of the view that a prima facie case has been established inter alia for reasons that the words in the comments were contemptuous and prima facie case had been established as the statements appeared on its news portal.

Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and Federal Court Judges Datuk Seri Mohd Zawawi Salleh, Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli were part of panel.

Rohana further said they were of the view that the Federal Court is the right forum to commence the proceedings given the nature of the impugned comments which implicate the judiciary as a whole and also include the Chief Justice (CJ) of the Federal Court.

The respondents, represented by legal counsel Datuk Malik Imtiaz Sarwar, earlier said in their submission that the filing of the leave application in the Federal Court, without justifiable basis in law, deprived them of the right of appeal.

On June 15, Idrus filed an ex-parte application to initiate committal proceedings against the respondents over readers’ comments that were complained as scandalising the court. He cited five comments made to an article entitled “CJ orders all courts to be fully operational from July 1”, which was published on June 9.

The respondents, among others, argued that they are not the publishers of the comments and demanded proof of direct involvement on their part as the law does not require news portals to moderate comments before being posted.

Malik Imtiaz said the applicant must prove the intention concerned the scandalising contempt and that the respondents had “knowingly” published the comments.

Senior federal counsel Suzana Atan said the respondents have sufficient controls on the platform and they should take a more proactive role to moderate the comment including taking down any contemptuous comments immediately.

As it was, the respondents removed the comments on June 12 after they were contacted by the police, about four days from the upload date of June 9. The respondents, nonetheless, accepted that the comments were offensive and inappropriate and tendered an unreserved apology.

Pending the final disposal of the matter, the Federal Court also directed parties not to make any comment on the case to avoid subjudice.

Met outside the courtroom, Gan declined to comment further.

“We will be fighting it the best we can on July 13,” he said.