TWO weeks ago, media channels in Malaysia were filled with news of former prime Minister Najib Razak’s arrest and court trial.

The extensive coverage was not unexpected, given the nature and circumstances of the case and the magnitude of the alleged scandal for which he claimed trial.

Najib was charged with one count of corruption related to misusing his position to receive a RM42 million bribe as inducement to provide a sovereign guarantee on behalf of the Malaysian government for a loan of RM4 billion from the pension fund Kumpulan Wang Persaraan (KWAP) to SRC International and three counts of criminal breach of trust (CBT) in his capacity as prime minister, finance minister and advisor emeritus of SRC International, in which he was entrusted with the RM4 billion.

Along with press attention, Najib’s trial also prompted many public comments on the merits of the case. However, when the high court passed an interim gag order on the same day, all public discussion was strictly forbidden, except for the facts presented in court.

This recent order is directed at the media, and will be in force till August 8 where the next hearing has been fixed. This temporary order has got to go and here are five reasons why.

1. It is not clear

The judge didn’t describe the scope of the constraint. Is it only limited to the future publications, or also extended to those which are already in circulation? The defence’s argument is that open discussions are detrimental to Najib’s right to a fair trial. If that’s true, these older publications have a tendency to ‘interfere’ with his fair trial. So, what happens to them?  There is a serious issue of clarity in this order.

2. Creature of the past

The true intention of introducing a gag order is to prevent jurors from being prejudiced by media reports. Hence, it is only relevant in the context of jury trials. Since the famous Mona Fandey case (1995), our courts have stopped exercising the jury system.

The current legal system obliges the presiding judge to decide solely based on the evidences that are put before him. The judgement is by an expert, unlike in a jury trial. If the defence counsel opines it’s an unfair decision, by all means he can appeal to a higher court for reversal of judgement. So why bother applying a gag order when the judgement won’t be affected at all?

3. Lifeblood of democracy

We are conscious of Article 10 of the federal constitution, which guarantees freedom of speech in our country. However, there’s a catch in this Article; it is limited free speech. It can be curtailed in the interest of national security, public order, morality and incitement to violence. Likewise, in Najib’s case if the court decided to restrict the public’s right to free speech, it can be only justified on protecting a greater public interest.

Najib is the centre of the political scandal and there is a fear in the public that justice can be bought in this case. Open debate of this case is necessary to know whether the trial is conducted in a fair manner or not. The defence counsel argued that Najib is prejudged by the public. If so, it is only through the discussion of this case that the public may change their perception on him. Besides, since when do open discussions become a threat to national security or provoke any violence? Limitations most certainly do not apply in this case, subsequently rendering the gag order to be unconstitutional.  

4. From the land of red boxes

Our legal system was developed from England. The cases decided there are persuasive in nature to our courts. Even in England, substantial risk must be shown before a gag order is made. Prominent Judge Lord Denning stated that trial judges or juries are good sensible people and the risk of them being influenced can only be disregarded and not the subject of gag order.

5. Age of the internet

Some of these publications involve reports from around the world which are readily available and downloadable in Malaysia. Preventing the local media when the international journalists from around the globe are free to write anything they want is irrational. How do you control Malaysians from accessing these international publications? Gag orders are meaningless in this sense.

In a nutshell

What is unfair here is the deprivation of rights of the media and the public. In fact, Najib is a person of public interest and everything in this case is a matter of public interest. The judge should balance the public interest with individual right. What seems fair to one party isn’t fair for another. In this case, it is Najib’s right against the whole nation.

Najib’s rights will not be prejudiced by the open discussion and it is a gross injustice on the public depriving their right in obtaining full information of the case. Furthermore, granting a gag order is unconstitutional as it violates the freedom of speech guaranteed under the constitution. This unconstitutional order should be set aside by the presiding judge. No wonder the attorney-general is determined to object to this order in the next hearing. – July 17, 2018.

* Harchanadevi Arivananthan is an intern at the Penang Institute in KL. She pursued her law degree in University of Malaya. Her particular research interest lies in relation to fundamental rights. She truly believes that law accommodating the current needs of the society will bring civilization to the next level.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.