Wednesday, July 08, 2020

The Malaysiakini Contempt Judgment -denying application to set aside leave - 2/7/2020, Judgment discloses 'contemptous' comments?

The Malaysiakini contempt of court case raises much concern to the Malaysian public - because the contempt is based on comments posted by readers, not a report by Malaysiakini reporters/editor.

Well, it concerns everyone of us, as we also have FB pages, Twitter accounts, Blogs/Websites - many of which anyone can post any comment whatsoever > If Malaysiakini is GUILTY of contempt, then anyone of us can also be guilty of contempt if somebody post something which may be seen as a contempt.

What about internet service providers like TM, Unify, Digi...what about Google, Facebook, etc ..

Looking at the said 'comments' - I wonder whether the courts even considered the said comment - Is it really contemptuous?  

Just because the AG says it is, or even because Mkini says it is, the COURTS must really analyse these comments and determine for itself whether they are contempt of scandalizing the court/judiciary?

In the judgment below, the statement of concern is '(a) The words read out above are contemptuous as agreed by both parties;' DID MALAYSIAKINI AND ITS CHIEF EDITOR AGREE THAT THE COMMENTS WERE CONTEMPTOUS? Sadly, in many contempt cases, parties quickly agree that they committed contempt, and apologize - the reason really is mitigation, so that if guilty, such speedy apology can reduce sentence - I believe this is WRONG.

Both the AG (and the respondents could be wrong), and ONLY the Court should independently consider the comments and determine whether it is contemptuous, and WHY?  It matters not if the Respondents foolishly prematurely agree that it was contemptuous. The Court(the Judges) decide whether it is contempt or not?

The statement,(a) The words read out above are contemptuous as agreed by both parties;' seems to imply court yet to consider, only acknowledge the fact that both parties agreed. In death penalty cases, even if the accused pleads guilty, the court does not accept it and proceeds with the trial because it wants to be sure that the crime was indeed committed, and the accused is really guilty - likewise should be the case for this kind of contempt - which is not an outright disobedience of a court order? 

Can we in Malaysia freely express our feelings and/or perception about judges, courts and the judiciary? Should all these be disallowed? 

FREEDOM OF EXPRESSION/OPINION is on trial now...not everyone is a lawyer, who will know how to 'safely' comment so that it cannot be considered a contempt or defamatory? The limitations of the man in the street must be considered...

FEAR of making comments - also means wrongdoings suspected will never be highlighted ...hence never be investigated...that will be difficult for reforms. Corruption amongst judges - possible - some lower court judges have also been charged for corruption?

How the people feel or think is important to determine what REFORMS will happen to make Malaysia a better country...

Malaysia still does not have a CONTEMPT OF COURT ACT - Disobeying a court order is contempt, disrupting a court proceeding or disobeying a judge may be contempt...

BUT here, we are talking about comments that affects the image of judges/judiciary...Should not our Malaysian judges and judiciary be strong enough to face such statements/criticisms?

UK abolished this 'scandalizing of the courts/judiciary' contempt - should not Malaysia follow suit..

Malaysiakini contempt case is not over yet - the Judgment of the Federal Court on 2/7/2020(see below) was just a decision with regard to Malaysiakini's application to strike out the leave granted to commence the contempt proceedings.. The full hearing(where witnesses could also be called) is fixed for 13th July according to media reports.
The court fixed July 13 for the hearing of the main application on contempt of court.

See earlier post:-

Will the Federal Court finally abolish 'scandalizing of the court/judiciary' when they get the opportunity in the Malaysiakini case?

PERMOHONAN SIVIL NO.: 08(L)-4-06/2020 (W)

Dalam perkara komen-komen dalam suatu artikel bertajuk CJ orders all courts to be fully operational from July 1 Dan 

Dalam perkara suatu permohonan minta kebenaran untuk memulakan prosiding komital kerana menghina Mahkamah selaras dengan Perkara 126 Perlembagaan Persekutuan dan Aturan 52 Kaedah-Kaedah Mahkamah 2012 Dan

Dalam perkara mengenai Seksyen 13 Akta Mahkamah Kehakiman 1964Dan Dalam perkara mengenai Kaedah 3 Kaedah-Kaedah Mahkamah Persekutuan 1995  Dan 

Dalam perkara Aturan 92 Kaedah-Kaedah Mahkamah 2012



 1. MKINI DOTCOM SDN BHD (No Syarikat: 489718-U)



DECISION ON ENCL.22(Setting Aside of leave order by Malaysiakini) 

[1]This is our decision on whether the application by Malaysiakini in Enclosure 22 to set aside the leave granted by this Court should be allowed. The subject of the contempt proceedings relates to the following comments which appeared in Malaysiakini on the 9 June 2020: 

(i)Ayah Punya kata: The High Courts are already acquitting criminals without any trial. The country has gone to the dogs;

(ii)GrayDeer0609: Kangaroo courts fully operational? Musa Aman 43 charges fully acquitted. Where is law and order in this country? Law of the Jungle? Better to defund the judiciary! 

(iii) Legit: This Judge is a shameless joker. The judges are out of control and the judicial system is completely broken. The crooks are being let out one by one in an expeditious manner and will running wild looting the country back again. This Chief Judge is talking about opening of the courts. Covid 19 slumber kah!

(iv)Semua Boleh Bodoh pun Boleh:Hey Chief Justice Tengku Maimun Tuan Mat -Berapa JUTA sudah sapu -46 kes corruption -satu kali Hapus!!! Tak Malu dan Tak Takut Allah Ke? Neraka Macam Mana? Tak Takut Jugak? Lagi Bayar balik sedikit wang sapu lepas jugak. APA JUSTICE ini??? Penipu Rakyat ke? Sama sama sapu wang Rakyat ke??? 

(v)Victim: The Judiciary in Bolihland is a laughing stock. 

[2]We are mindful that in the course of adjudicating on the setting aside application, we should not venture into or purport to decide the substantive merits of the committal application, which is properly the subject matter of the second stage of the adjudication.

[3] In respect of this issue we are of the view that the following facts as revealed:

      (a) The 1st respondent facilitates publication;

      (b)The editorial policy allowing editing, removing and modifying comments; 

    (c) Only upon being made aware by the police, the 1st respondent indeed removed the comments;

    (d) Evidence revealing that the editors of the 1st respondent review postings on a daily basis.

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

[5] We are also of the view that,furthermore 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.Hence, we find a prima facie case has been made out for the following reasons: 

(a) The words read out above are contemptuous as agreed by both parties;

(b) Prima facie there has been publication by Malaysiakini as these statements appeared on their news portal.

[6] The other grounds relied upon by the respondents to set aside the leave are the followings

 (i)O. 52 r. 2B of the Rules of Court2012 Procedural requirement On the requirement of notice pursuant to O. 52 r. 2B which has not been complied with, on the facts of this case, we agree that the non-compliance is not fatal or prejudicial to the respondents. 

(ii)Commencement at Federal Court Looking at the nature of the impugned comments earlier elaborated, which implicate the judiciary as a whole, which also include the Chief Justice of the Federal Court, we are of the view that this Court is the right forum to commence these proceedings.

 [7]On all the above reasons, the application is,hereby unanimously dismissed, and we will hear the merits of the Attorney General’s application in Encl. 19 on another date. 

[8]Pending the final disposal of the matter, we hereby direct parties not to make any comment on this case to avoid sub judice.


President of the Court of Appeal Putrajaya

Dated: 2ndJuly 2020

Counsel for the Applicant:Puan Suzana binti Atan(SFC), (Puan Narkunavathy Sundareson(SFC),with her) Attorney Generals Chambers 45, Persiaran Perdana, Presint 4,62100 Putrajaya 

Counsel for the Respondents:Malik Imtiaz Sarwar(Surendra Ananth And Khoo Suk Chyi with him) Messrs. Surendra Ananth No. 4, Jalan Dalaman Tunku Bukit Tunku 50480 Kuala Lumpur

Watching Brief(Bar Council):Datuk Joy Wilson Appukuttan Messrs. KH Lim & Co.UnitT3-22-01, 22ndFloor,Tower 3 Pusat Perdagangan Icon City No. 1B, Jalan SS8/3947300 Petaling Jaya Selangor

Watching Brief (Centre for YB Senator Yusmadi Yusoff Independent Journalism and Messrs. Fahda Nur Yusmadi Gerakan Media):Unit 5-05-03A, Blok 5, VSQ @ PJ CityCentre, Jalan Utara46200 Petaling Jaya Selangor

Watching Brief (International New Sin Yew Federation of Journalists Messrs. AmerBON(IFJ)and National JournalistB2-2-13A, Solaris Dutamas Union of Malaysia (NJUM):No. 1, Jalan Dutamas 150480 Kuala Lumpur


Federal Court dismisses Malaysiakini's bid to set aside AG's contempt of court action

Malaysiakini's editor-in-chief Steven Gan speaking to reporters outside the Federal Court.

PUTRAJAYA: The Federal Court here has dismissed an application by Malaysiakini to set aside a contempt of court action filed by the Attorney General against the news portal over readers' comments on the judiciary.

A seven-man panel of the apex court made the decision here on Thursday (July 2) after hearing submissions from both parties.

In the unanimous decision, Justice Rohana Yusuf, who chaired the panel, said the Federal Court was the right forum to commence these proceedings after looking at the nature of the impugned comments.

The comments, she said, implicated the judiciary as a whole, including the Chief Justice.

"We will hear the merits of the AG's application on another date.

"Pending the disposal of the matter, we hereby direct parties not to make any comments on this case to avoid subjudice," she added.

The court fixed July 13 for the hearing of the main application on contempt of court.

Other judges on the panel are Chief Judge of Malaya Justice Azahar Mohamed; Chief Judge of Sabah and Sarawak Justice Abang Iskandar Abang Hashim; and Federal Court judges Justices Mohd Zawawi Salleh; P. Nallini; Vernon Ong Lam Kiat; and Abdul Rahman Sebli.

On June 17, a Federal Court three-member bench allowed AG Tan Sri Idrus Harun's ex parte application for leave to commence committal proceedings against Mkini Dotcom - which runs news portal Malaysiakini - and Malaysiakini’s editor-in chief.

The bench allowed the leave application on grounds that a prima facie case for contempt was established.

The application was in relation to five comments on an article published by Malaysiakini on June 9 entitled "CJ orders all courts to be fully operational from July 1".

Malaysiakini then filed to set aside the leave order obtained by the AG, which was heard today before the seven-man panel.

Speaking to reporters outside, Malaysiakini's editor-in-chief Steven Gan said they could not comment further on the matter based on the court's order.

"We will definitely be fighting it when we come back here on July 13," he said. - Star, 2/7/2020

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