A contemptuous tempest unfolds

A contentious court case and an unprecedented action in Parliament will likely have far-reaching consequences.

A DOMESTIC weekend getaway to rehabilitate constitutions and provide fresh inspiration (incidentally in the parliamentary constituency of the fourth and seventh Prime Minister) unavoidably included much discussion about threats to the national constitution and the aspirations of particular individuals (especially those surrounding the eighth Prime Minister and those vying to be the ninth and 10th).

In a welcome respite from almost incessant rain, a clear view of the mythologically rich islands of Langkawi emerged from atop gentle waters, but not clairvoyant enough to predict the gravity of what would happen on July 13, on which two events of potentially immense significance were scheduled.

The first was a hearing by the Federal Court on the contempt proceedings against online news portal Malaysiakini and its editor-in-chief Steven Gan.

Initiated by the Attorney General on June 16, the affidavit accuses Malaysiakini of contempt of court based on readers’ comments on

a post on June 9 which allegedly scandalised the judiciary.

I have no automatic love for all online news portals and newspapers – in the past, several have misquoted me, and one newspaper completely invented something I never said.

However, amendments were usually made upon my clarification, and that newspaper retracted the article and issued the public apology that I requested.

While these experiences were annoying, they did not alter my belief in the necessity of press freedom. At the same time, I have immense respect and high regard for the Chief Justice, under whom public confidence in the judiciary has increased.

Bearing both these things in mind, the consequences of the current case against Malaysiakini could be far-reaching indeed.

It’s important to note that past prosecutions in response to online comments targeting other national institutions have used specific laws with clear maximum punishments (such as the Communications and Multimedia Act 1998 or even the Sedition Act 1948), and have charged the actual writers of those comments.

This case is different because contempt of court has less certain limits in terms of punishment (relying on precedent and circumstances) and the action is being taken against the news portal and its editor, rather than those who wrote the comments.

If found guilty, it could mean that other platforms – or even anyone with a social media account – could be guilty of contempt simply by failing to delete a comment written by someone else.

This fear would deter the provision of online commenting, reduce space for debate and ultimately constrain our democracy. In the event, the judges deferred judgment but I hope they will have appropriate regard for Article 10 of the Federal Constitution guaranteeing the right to freedom of speech and expression.

The second event of immense significance did take place as its architects planned. The government succeeded in removing the Speaker of the 222-member Dewan Rakyat by 111 to 109 votes (one

MP was absent; another was the Deputy Speaker presiding over the vote).

This vote marked the first time the government’s majority was put to the test, and the thosai-thin majority may well trigger new implications for the timing of the next general election and in the meantime, the appointments to other positions that the government is able to make.

After this vote, in place of Tan Sri Ariff Yusof and one of his former deputies Nga Kor Ming (who resigned following the vote) are now Datuk Azhar Harun and Datuk Seri Azalina Othman said.

Although Ariff himself allowed the vote, it has not stopped others from decrying its validity according to the Federal Constitution and Standing Orders.

Even if legal, the action was unprecedented in Malaysia and unusual across other parliamentary democracies in the Commonwealth.

Although the Dewan Rakyat did vote on the motion, perceptions will persist that the executive has overreached into the legislature, while positive reforms to Parliament may be under threat.

Hopefully that fear is unfounded. Indeed, when Ariff was appointed, criticism was also hurled because his appointment violated a manifesto commitment that the Speaker would be an MP, and parts of civil society wondered if he was a pawn of the executive.

Over time, that concern evaporated completely. Amidst competing theories of ambitions and incentives, I pray that Azhar will follow in Ariff’s footsteps in this regard.

No doubt it will be a difficult job, particularly when MPs are constantly shouting, hurling insults and making racist and sexist remarks which they can simply retract and later repeat.

In contrast, the Parlimen Digital I praised last week looks even more mature.

In this context, I wonder if young, legally-minded Malaysians would be in contempt of court if they similarly established their own parallel judiciary.

Tunku Zain Al-‘Abidin is Founding president of Ideas. The views expressed here are the writer’s own.