A prima facie case for contempt is established when the published comments are deemed to undermine the judiciary, with the presumption of publication under s 114A of the Evidence Act 1950.

Rohana Yusuf PCA:

Decision On Encl 22

(Setting Aside of leave order by Mkini)

[1] This is our decision on whether the application by Mkini in encl 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 Mkini 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 allows editing, removal and modification of comments;

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

(d) The evidence revealed 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 s 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 Mkini as these statements appeared on its news portal.

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

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(i) Order 52 r 2B of the Rules of 2012 - 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 the 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.