The Malaysian Federal Court concluded the hearing on the contempt of court case against online news portal Malaysiakini and its editor-in-chief Steven Gan on Monday, July 13.
The 7-member federal court panel reserved its judgment for another day that is yet to be set. But if found guilty, Gan could face prison time and/or a hefty fine could be imposed on him and the online news outlet.
Several organizations both in Malaysia and abroad condemned the charge and said it is an act meant to stifle press freedom. It also underscores the growing threat to press freedom not only in Malaysia, but also in Southeast Asia.
Malaysiakini is Malaysia’s first independent news outlet launched in November 1999. It is known for being the first news organization in Malaysia to give real-time updates on election results since 2008. It has also published articles critical of the administration, such as its comprehensive reporting on the 1Malaysia Development Berhad financial scandal. This led to the arrest of former prime minister Najib Razak and the fall of Malaysia’s ruling political party in 2018.
It is the first time Malaysiakini has been cited for contempt of court in its 20-year history.
On June 9, Malaysiakini published a news article about Malaysian chief justice instructing all their courts to be fully operational by July 1, in line with the country’s transition to the recovery phase of the country’s movement control order – or lockdown measures – amid the coronavirus pandemic.
Six days later, Attorney General Idrus Harun, the principal legal adviser of Malaysia, filed an application to initiate contempt of court proceedings against Malaysiakini and Gan over 5 comments left by readers on the said article online.
Malaysiakini said it deleted the comments after being contacted by the police on June 11, two days after the article was published.
Still, on June 15, Idrus alleged in his affidavit that the online news portal facilitated the posting of the comments, which he said, “clearly meant that the judiciary committed wrongdoings, is involved in corruption, does not uphold justice and compromised its integrity.”
The Federal Court of Malaysia allowed contempt proceedings against Malaysiakini and Gan on June 17. The proceedings began on July 2, during which Malaysiakini filed for a motion to set aside the contempt charge.
Gan and Malaysiakini’s defense counsel argued that the law does not require news outfits to moderate the comments made by readers on their websites.
The award-winning journalist also maintained that Malaysiakini should not be held liable for the comments made by its readers, and that the result of the case would greatly impact media organizations who use the online space and social media.
"This is because they [media] are not only responsible for the content that they run on their Facebook page, they could be liable for whatever comments that have been put (there) by their readers – even after the comments have been taken down," a report by Malaysiakini quoted Gan as saying.
Still, the Federal Court denied Malaysiakini’s motion on July 2 and said that Idrus had established a case to initiate the contempt proceedings. It also imposed a gag order on Gan and Malaysiakini that prohibits them from talking about the case.
On July 13, the Federal Court concluded the hearing on the contempt of court case. It is expected to hand down a ruling at a later date.
If found guilty, Gan could face prison time. There is no legal limit to the penalties for contempt of court in Malaysia.
Syed Ahmad Idid, a former justice of the High Courts of Malaya & Borneo, explained in a 2019 piece that a person found guilty of contempt under Malaysian laws may be fined or imprisoned.
“Regardless of whether contempt is civil or criminal, the resulting effect is criminal...The term of imprisonment or the amount of the fine depends largely on the seriousness of the contempt,” Syed wrote.
The first time a journalist was detained in Malaysia for contempt was in 1999, when Malaysia’s Court of Appeals sentenced Canadian journalist Murray Hiebert of the Far Eastern Economic Review to 6 weeks of imprisonment for contempt of court over an article he wrote in 1997. He was released two weeks early for good behavior.
Still, imprisonment of journalists is considered "very uncommon" in Malaysia, according to Malaysian media advocacy group Gerakan Media Merdeka (Geramm). In a message to Rappler, a representative said there have been improvements in the journalists' working environment in the previous year but it was not sustained.
RSF cited the change of government brought by the 2018 polls as reason for the improvement of the environment for journalists in the country. But the organization also said Malaysia still has draconian and archaic laws that have shaped the repressive environment journalists in Malaysia are working in today. (READ: Malaysia's Mahathir wins shock election victory)
Further, RSF said Mahathir Mohamad’s “reformist government” was taken over on March 1 by Muhyiddin Yassin, the head of a different coalition. RSF said press freedom violations in the country have surged since Muhyiddin was sworn into office.
Geramm said that access to government events is more difficult now compared to during Mahathir's government. "The current government used COVID-19 as an excuse to restrict media access to official functions. Certain functions are restricted to only official government media," the group told Rappler.
With Malaysiakini's case, the Geramm representative – who's also a reporter – said that independent journalists consider it a test of the solidarity of Malaysian media.
"We are aware that there might be more pressure from government but it hasn't changed how we do our work. We continue to do our work as usual," the representative added.
Apart from Malaysiakini’s case, RSF cited the questioning of Al Jazeera reporters who produced a documentary on Malaysia’s arrests of undocumented migrants as an example. Authorities said the documentary besmirches Malaysia's image. (READ: Malaysia police question Al Jazeera journalists over documentary)
“(...) We have seen an alarming surge in violations of journalistic freedom since the new coalition government took over 4 months ago. We call on Prime Minister Muhyiddin Yassin’s government to halt this dangerous trend by rejecting the past practice of censoring and harassing reporters,” said Daniel Bastard, head of RSF’s Asia-Pacific desk, in a report on July 8.
Malaysiakini's case and the situation of Al Jazeera reporters are just two of the many challenges journalists in Southeast Asia are facing today.
RSF ranks Southeast Asian nations at the bottom half of the World Press Freedom Index. Of the 10 countries, Malaysia is already considered the freest, followed by Indonesia (119), the Philippines (136), Thailand (140), Cambodia (144), Brunei (152), Singapore (158), Laos (172), and Vietnam (175).
The Council of Foreign Relations (CFR), an American non-profit think tank, said journalists in the region have always worked in a difficult environment but it has gotten worse over the past two years, due to government suppression.
Here in the Philippines, recent blows to press freedom include the shutdown of broadcasting network ABS-CBN in May and the rejection of its legislative franchise two months after, and the conviction of Rappler CEO and executive editor Maria Ressa and former Rappler researcher-writer Reynaldo Santos Jr of cyber libel in June.
Several organizations, both in Malaysia and abroad, have denounced the charge against Gan and Malaysiakini.
On June 30, the Malaysian Bar called for the attorney general to “revisit” his complaint.
“The law of contempt serves the public interest and is not to vindicate the dignity of any judge or the Court itself, but to prevent an undue interference with the administration of justice in the public interest. There must be a balance between public interest and individual liberties,” Salim Bashir, Malaysian Bar president, said in a statement.
Centre for Independent Journalism in Malaysia executive director Wathshlah G. Naidu also said in a statement on July 2 that the charge is a “serious threat to freedom of expression.”
The International Federation of Journalists (IFJ), a global union federation of journalists' trade unions, likewise condemned the contempt charge. The IFJ represents more than 600,000 journalists in 140 countries. Malaysiakini is a project partner of IFJ.
“The Federal Court proceedings will set a dangerous precedent stifling press freedom if the case is not set aside,” IFJ said on July 2.
The Committee to Protect Journalists (CPJ), an American independent non-profit organization for press freedom, called on Malaysian prosecutors to drop the charges against Gan and Malaysiakini.
“Malaysian prosecutors should drop the bogus contempt of court charges pending against Steven Gan and stop using legal threats to intimidate the media,” said Shawn Crispin, CPJ’s senior Southeast Asia representative, in a report on July 6. “Pursuing an independent news outlet over comments from random internet users reeks of a witch hunt and sends a worrying signal about the state of press freedom under Prime Minister Muhyiddin Yassin’s new government.”
RSF called on the federal court to “immediately abandon” the charge against Malaysiakini and Gan, too, on July 8.
The contempt of court charge against Malaysiakini and Gan is just one of the many challenges the online news portal has faced in its two decades of operations.