Judge in Najib’s case had no jurisdiction to issue ‘gag order’ against the media
5 July 2018
We refer to the ‘gag order’ upon the media ordered by the court hearing the charges against ex-PM Najib Razak.
We are surprised and disappointed that the judge allowed the request for a gag order asked for by Najib’s counsel.
The order purports to prohibit all discussion in the media upon the ‘merits of the case’ against Najib.
Firstly, the judge trying the criminal matter has no jurisdiction or power to issue such an order against the media at large. He can issue any order that binds the parties in the case or in some cases all those present in court. But he cannot issue an order binding the world at large. Judges do not have such powers.
And to issue an ‘interim’ gag order of this nature, without having heard the full merits of the application for a gag order, makes the order all the more untenable. No interim order should be issued in a case like this.
The gag order is further in direct breach of Article 10 of the Federal Constitution which guarantees the right to freedom of speech and expression, which includes the freedom of the press. The gag order is a drastic curtailment of press freedom, and hence unconstitutional.
The terms of the order is also vague, ambiguous and uncertain. What does ‘merits of the case’ encompass? What can or cannot be reported? Courts must not issue orders that lack clarity; and such orders cannot be enforced.
Most importantly, there is no need for a gag order because there is no jury in criminal trials in Malaysia. The case is being heard by a single judge, who is trained and experienced in considering only the evidence presented in court, and to exclude all extraneous matters. Competent judges are not supposed to be affected by any number of media reports on the case. Hence, what is the need for a gag order?
This case against Najib is of the greatest public interest, and public discussion of the case must not be prohibited and silenced.
It will also lead to absurd results, as the order will not bind the media abroad who will continue to discuss and debate the case. Najib’s case is of global interest.
The foreign news reports will thus be instantaneously available to Malaysians through the internet and social media. This will make a mockery of the gag order.
It is a basic principle that courts must not issue orders that will lead to absurd consequences or which simply cannot be enforced.
The Attorney-General is strongly objecting to the gag order; hence, it is hoped that this legally dubious gag order is set aside as soon as can be.
Lawyers for Liberty