GLOBALLY, there is an unfettered right of access to court proceedings by the public, which is consilient with the principle of open justice as it is regarded as an essential tenet of any justice system to guarantee public confidence, independence, and accountability in the administration of justice.
In Malaysia, Section 15 of the Courts of Judicature Act 1964 states that all civil and criminal matters shall be deemed to be open and accessible to the public. Journalists are often keen to report on cases that are newsworthy and those that garners public interest wherein they act as an intermediary between the public and the courts.
Admittedly the media plays this important role in in reinforcing the principles of accountability, independence, and public confidence, all of which are fundamental to a proper and effective working of the justice system. Lord Sumption in the case of Khuja v Times Newspapers Ltd and others [2017] said:
“…It has been recognized for many years that press reporting of legal proceedings is an extension of the concept of open justice and is inseparable from it. In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public…”
However, at times, discussions, and publications in respect of an on-going proceeding may be tantamount to sub judice. The sub judice rule originates from the Latin phrase for ‘under judgment’ or ‘under consideration’ emanating from Roman law, which was integrated into the Western legal system, the earliest which can be traced back to the English case of Roach v Garvan [1742].
Historically the sub judice rule was used to insulate members of a jury from any kind of influence and prejudice in arriving at a fair and just decision. In Malaysia, jury trials were abolished since 1995 and therefore there has been opinions that the application of this rule no longer applies. However, the sub judice rule is not just confined to jury trials but means much more and the rule remains very much alive in Malaysia albeit in a different context.
In Malaysia the sub judice rule is considered part of the law of contempt that is affiliated to the interference with due administration of justice and is used to protect and maintain the integrity of legal proceedings. In this regard, the rule is said to apply in circumstances where there is a tendency to prejudge or cause prejudice to undermine the fairness of trials, misrepresentation of facts, disclosure on evidence yet to be presented, to cause obstruction or to interfere with the due administration of justice.
The rule not only applies to parties in pending proceedings but also includes to the public at large. It can be said that the rule will not apply so long as it does not intrude or undermine the integrity, competence, and impartiality of the Court. Hence, the rule is said to apply to deter any kind of influence on witnesses, prejudgment of Court decisions or encroaching into the functions, duties and power of the Court, which is exclusive to the judiciary by virtue of Article 121(1) of the Federal Constitution.
In the case of Bursa Malaysia Securities v Gan Boon Aun [2009] the Court of Appeal held:
“The law in relation to what may be published concerning legal proceedings is sometimes referred to as the sub judice rule. The publications are such they are intended to impede or prejudice the administration of justice which may in turn constitute acts punishable as contempt of court”.
In Syarikat Bekalan Air Selangor Sdn Bhd v Fadha Nur bt Ahmad Kamar & Anor [2012] the Court held that:
“…it is all a matter of proportion and circumstance. If a comment attacks the merits of an ongoing litigation, for example, or cast aspersions on the independence and integrity of the judiciary and the judicial process in the context of an ongoing active suit, there will obviously be a breach of the sub judice rule…”
It is in this limited context that the sub judice rule is still considered relevant and utilized as a safeguard, albeit sparingly, by the Courts in Malaysia as publications can at times have a much wider influence on public perception that results in the emergence of debates, comments, statements, and inferences through various platforms, which could create a forum of negative bias and bring about unwarranted attacks that may undermine the legal process.
Nevertheless, some contend that the sub judice rule are at times abused wherein the rule is invoked to stifle freedom of speech and expression or fear of negative perceptions and that its applicability has become superfluous since cases in Malaysia are determined by professional, experienced and learned judges as opposed to layman jurors.
Consequently, there cannot be any real risk of any kind of unwarranted influence in the outcome of proceedings or any demonstrable prejudice could arise as judges are trained professionals who are immune to any kind of influence, are not vulnerable to public statements and they possess the courage, fortitude, and ability to determine cases based on facts, admissible evidence and principles of the law.
In the case of R v Horsham Justices, ex parte Farquharson and another [1982], Lord Denning MR said:
“Whoever has to consider it should remember that at a trial, judges are not influenced by what they have read in the newspapers…They are good, sensible people. They go by the evidence that is adduced before them and not by what they may have read in the newspapers. The risk of being influenced is so slight that it can usually be disregarded as insubstantial…”
In the case of Vine Products Ltd v Mackenzie & Co Ltd [1965] Justice Buckley said:
“It has generally been accepted that professional judges are sufficiently well equipped by their professional training to be on their guard against allowing [a prejudging of the issues] to influence them in deciding the case”.
In Malaysia, it can be postulated that the rule of sub judice should only apply in rare and exceptional circumstances and should not be used as a tool to stifle free speech, liberty to express or to restrain the public from having awareness of any on-going proceedings. In this respect, the rule should be inoperative if the possibility of prejudice is based merely on conjectures, assumptions or suppositions without any real or substantial risk of prejudice being first established.
It would be correct to state that to invoke and rely on this rule, there must be credible proof that publications or words spoken will, in fact, create a real risk of danger of influence and interference with the due administration of justice as opposed to any imprecise assumptions or speculation. Additionally, it must also be shown that there is a real or substantial risk of usurpation of the Court’s power and authority with readily available evidence of real risk or substantial danger of prejudice to a fair and impartial legal proceeding.
In this context, prejudice or interference to the administration of justice are not be presumed or based on suspicion as the rule of sub judice interferes with the constitutionally guaranteed right of freedom of speech and expression as enshrined in Article 10 of the Federal Constitution, the most fundamental human rights, which is a necessary constituent in any democratic society.
Undoubtedly, the right to speak and express freely, are not absolute and necessarily comes with responsibilities such as fairness and credibility, which is why the Constitution provides that Parliament may by law impose limits, albeit in limited circumstances, such as in the interest of national security or to maintain public order and morality as provided for in Article 10(3) of the Constitution. The right to free speech and expression cannot be unambiguously curtailed by the use of the sub judice rule purely on speculation, assumptions or suppositions.
Consequently, if the risk of prejudice or interference based on speeches and publications cannot be satisfied on a high burden of proof that it will impede or prejudice the course or administration of justice but instead formulated upon probabilities, suppositions or near-certain occurrences alleging that a proceeding be influenced or that the process of justice may be prejudiced, the rule of sub judice ought not to apply. Referring to the case of Syarikat Bekalan Air Selangor Sdn Bhd supra, the Court held:
“The court has to be satisfied on a high burden of proof that the administration of justice has been sullied or compromised. Ultimately, the test of possible or likelihood of prejudice has to have reference to the professional judge who will be hearing the case, not a collection of layman jurors-a system which has ceased to exist in our system of civil litigation.”
The Courts in other jurisdictions have also held that publication or discussions on matters of public interest should not be discouraged in on-going proceedings if it comes within the ambit of public interest. In the Australian case of Ex parte Bread Manufacturers Ltd., Re Truth & Sportsman Ltd [1937] the Court held:
“It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject litigation, or that a person whose conduct is being publicly criticized has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter.”
The Privy Council in the case of Ambard v Attorney General for Trinidad and Tobago [1936] held:
“The path of criticism is a public way; the wrong-headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and the respectful even though outspoken comments of ordinary men.”
The Supreme Court of Canada in the case of Dagenais v Canadian Broadcasting Corp [1994] held that the Court should only restrict publications only if it poses a serious risk to the proper administration of justice whilst the Indian Supreme Court in the case of Sahara India Real Estate Corp. Ltd v SEBI [2012] said that for the sub judice rule to apply, it must pass the test of “real and substantial risk of prejudice”. The Court went on to state:
‘…it may be stated that the Supreme Court is not only the sentinel of the fundamental rights but also a balancing wheel between the rights, subject to social control. Freedom of expression is one of the most cherished values of a free democratic society. It is indispensable to the operation of a democratic society whose basic postulate is that the government shall be based on the consent of the governed. But, such a consent implies not only that the consent shall be free but also that it shall be grounded on adequate information, discussion and aided by the widest possible dissemination of information and opinions from diverse and antagonistic sources. Freedom of expression which includes freedom of the press has a capacious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any section of the population. It also includes the right to receive information and ideas of all kinds from different sources. In essence, the freedom of expression embodies the right to know.”
In the case of Khairul Azwan bin Harun v Mohd Rafizi bin Ramli [2016] the Court said:
“…the general rule is that the law of contempt cannot be used to curtail public discussion of matters of public importance and public interest albeit that these matters may already be the subject of a court action. Ultimately the court must be satisfied that the administration of justice has been sullied or compromised by reason of the matters that were published…”
Therefore, the sub judice rule should only be applied in extraordinary circumstances and premised upon existing credible evidence that any unfair comment or publication does in fact pose a real risk or danger of prejudice to the fairness of a proceeding or constitutes a real and present danger of interference with the due administration of justice.
To invoke the said rule otherwise would be tantamount to an abuse as it curtails the right to freedom of speech and expression, and this right not only extends to individuals but also the media which is considered an asset in any democracy. – February 2, 2025
Datuk Seri Rajan Navaratnam is a senior advocate and writes frequently on the law.