Denied! Judge rules gag order violates freedom of speech

  • Aug 11, 2018
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High Court judge Mohd Nazlan Mohd Ghazali has dismissed former prime minister Najib Abdul Razak's application for a gag order on the media and public with regard to discussing the merits of his corruption case.

Justice Mohd Nazlan said the existing laws on contempt and defamation could be pursued instead.

He said the court found there was nothing prejudicial against Najib as the court did not have a jury system and the decision was made by the judge.

Whilst the court may have jurisdiction to issue a gag order in the nature of restraint when there is prejudice to a fair trial and the administration of justice, the court was of the view that Najib's application could not succeed here, he added.

"The existing law of contempt and defamation already provides available and ready measures to deal with any substantial risk of prejudice or interference with the criminal justice system.

"The law of contempt can only be granted in the most exceptional of cases, where the substantial risk of prejudice is additionally especially imminent and serious.

"In light of the aforesaid key considerations, I find the motion unsustainable. If granted, it would represent a major incursion into the constitutional right of freedom of speech and freedom of expression under Article 10 of the Federal Constitution," he said.

Justice Nazlan said a gag order under these circumstances did not in the court's view promote the objective that the law was an instrument of justice.

"Hence the application is dismissed,” he ruled.

Trial dates fixed

Justice Nazlan delivered his broad grounds of decision at 5:05pm after hearing submissions on the matter by Najib's defence team and the prosecution led by DPP Mohd Hanafiah Zakaria and DPP Manoj Kurup.

The former premier is faced with three criminal breach of trust, three counts of money laundering and one count of abuse of power, all charged in relation to RM42 million which was deposited into his personal accounts from SRC International Sdn Bhd, a former subsidiary of 1MDB.

DPP Hanafiah informed the court that the prosecution will call 50 witnesses to the trial.

Najib's lead counsel Muhammad Shafee Abdullah indicated that he would file an appeal against the decision.

Following the decision, Justice Nazlan took an hour to fix trial dates beginning Feb 12 to March 29 for hearing.

Sarawak Report editor Claire Rewcastle Brown, was in the public gallery to see the afternoon proceedings. Shafee had earlier pointed that the articles she wrote were prejudicial to Najib, along with articles from Wall Street Journal and comments made by Malaysiakini readers.

The Briton was seated with other journalists behind Najib's children Nooryana Najwa Najib and Norashman who stayed with their father throughout today's proceedings, along with several of the former premier's aides.

Rewcastle Brown said she wanted to know first hand what Najib and his lawyer had complained about her articles.

Media's right to publish defended

During submissions in the afternoon, Hanafiah defended the right of the media to publish the articles and comments referred to by Shafee, who wanted the media and public be gagged from discussing the case.

Hanafiah said the media has the right to report and added the said articles were from 2014, when Najib had not been charged.

"Pre-trial publicity cannot lead to an unfair trial. What the applicant sought are his private rights. He can go for contempt and go for libel proceedings with those persons."

"The trial, is being heard before a competent and legally trained judge and to suggest otherwise undermines the integrity of the court," he said.

Hanafiah further asked how the court could grant a gag order against social media and the foreign media reports.

Lawyer Harvinderjit Singh, who appears with Shafee, said if the gag order is granted, any foreign media which violates it would be served with the gag order.

Shafee at the start of proceedings also complained that Najib was only handed a CD-ROM on Wednesday containing the documents used by the prosecution.

He complained that the documents are not indexed and there are 3,500 pages to be printed and it took his staff the whole of yesterday to print the documents.

Furthermore, he discovered there are some documents which have yet to be handed to the defence.

Following this, Justice Nazlan ordered Oct 4 as case management to ensure that all documents are to be handed to the defence.