By Kim Quek

If someone slanders you through Face Book or WhatsApp or any other social media, would you sue that person or the media network that provides the platform for public comments?

Of course, you will sue the person who slanders you and not the network providing the platform.

And that is exactly what the Attorney General has been doing all the time – always acting against the party that makes offensive comments, but not the network providing the platform.

Charging wrong party?

But the AG made an exception this time when it acted against Malaysiakini and not the readers who put up the alleged offensive comments in the “Comments” section that follows every article in the portal.

And that exception made by AG has raised serious ramifications that may grievously dent the image of the government and the country.

Granted that as a publisher, Malaysiakini must take responsibility for any infringement of law arising from the articles it publishes.

But law enforcers must realise the vast difference between the articles that appear in the news section and the readers’ comments that flow like a river every time an article appears in the portal.

Whereas the former are vetted and edited by editors, the latter appear in the comments section automatically without going through the editors. With thousands of comments that come incessantly every day (sometimes a single article can attract more than four hundred comments), it is not feasible to provide effective scrutiny to these comments, except through alert by readers or other third parties.

In this case, Malaysiakini had demonstrated its absence of malice and its high sense of responsibility by promptly removing the questionable comments upon alert from the police.

Thus, from the practical point of view, and indeed from the point of view of law enforcing, Malaysiakin’s platform for readers’ comments should be treated on par with that of Face Book or other social media network.

The Attorney General should go after the mischief maker (in this case, the commenters) and not the platform provider, as it has always correctly done in the past.

Charges misused?

Now, let us look at the charges.  Malaysiakini was charged for contempt of court proceedings for publishing readers’ comments of the judiciary being corrupted, lacking integrity and failing to uphold justice.

But these are general criticism against the judiciary that developing countries like Malaysia face all the time and should not become the fodder for initiating criminal charges – unless the country is under tyrannical rule.

Significantly, these general criticisms were not directed at any particular judgment or any particular judge, and as such, it should not come under the armpit of contempt of court proceedings.

AG has therefore misused its charges.

Reviewing the extra-ordinary circumstances surrounding the current prosecution of Malaysiakini – AG’s exceptional decision to forego the alleged mischief makers to go after the platform provider, and the lightning speed and the abrupt manner with which court proceedings were rushed through, one cannot help but be alarmed that the democratic rule briefly revived under the curtailed Pakatan Harapan regime is receding with amazing speed under this nascent Perikatan Nasional regime.

However, the Federal Court could still prove the skeptics wrong.

As the last bastion for constitutional rule, will the Federal Court allow the dim light of democracy to survive by letting justice and good common sense to shine through in its coming deliberation of the case?

 

Kim Quek