THERE shouldn’t be a gag order, says Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said.
“In my personal view, I don’t think there should be a gag order (as the issue concerning the royal addendum) is already in the public domain and Parliament will be sitting next month (when) all this will be raised again,” said Azalina.
One may agree with her, especially when there is authority of the highest order to support her contention.
In Datuk Seri Najib Razak v Public Prosecutor [2019] 4 MLJ 281, the accused was charged in the high court with the commission of various offences including money laundering and corruption.
He applied by way of a notice of motion for a pre-trial gag order – to last until the proceedings were disposed of – to prevent anyone from publishing, broadcasting or communicating in any manner whatsoever to the public any words, comments, discussions or statements which might suggest, conclude or infer that he was guilty of the offences concerned.
The trial court dismissed the application. The learned judge reasoned, among others, that even if a gag order was granted it could not be enforced against the world at large and that the accused had not shown an immediate threat of a real and substantial risk of serious prejudice to the administration of justice if the order was not granted.
Moreover, the accused himself had given public interviews to answer the allegations against him.
On appeal to the Court of Appeal, the appellate court dismissed the accused’s appeal and affirmed the trial court’s decision including its view that the sub judice rule still applied in Malaysia notwithstanding the fact jury trials had been abolished in the country.
On further appeal to the Federal Court, the apex court unanimously dismissed the appeal and affirmed the decision of the Court of Appeal.
In dismissing the appeal, the Federal Court ruled, through Chief Justice Richard Malanjum who delivered the judgment, as follows, among others:
– The accused did not disclose any obvious or imminent threat to a fair trial. The accused had also admitted to giving statements to the press to answer the allegations against him. In the circumstances, since the accused had had the opportunity to present his side of the story, so to speak, there was a balanced narrative of competing perspectives on the matter and, hence, there was no real and substantial risk to the fairness of the trial.
– The accused failed to satisfy the criteria of “necessity” and “proportionality” in his application. He was applying to cast a blanket ban on all communications prejudicial to him. It would be impossible to enforce a gag order over foreign media outlets which were beyond the jurisdiction of the Malaysian courts.
– If an order in terms of the accused’s application was granted it would create a situation where local news outlets would be effectively censored while their foreign counterparts would enjoy free rein over what to report. This was plainly untenable.
– Moreover, the allegations against the accused had been circulating in the public domain for some time and it was pointless for the court to attempt to regulate the same.
But let the public beware that it is still open for committal proceedings for contempt of court in the event any party offends the rule against sub judice. – January 14, 2025
Hafiz Hassan reads Scoop