A-G: Why Issue Gag Order When “Whole World Will Talk About It”?

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Attorney-Gen­eral Tommy Thomas is challenging the gag order banning the media from discussing the merits of Datuk Seri Najib Tun Razak’s case, saying that it goes against the right of free speech.

  • Gag order goes against the right of free speech, is unconstitutional
  • Gag order only punishes local press
  • Issuing the gag order is as good as the judge saying he cannot otherwise give Najib a fair trial.
  • Judges have no power to gag the media and public
  • Foreign news reports available to Malaysians through the Internet will make a mockery of the gag order

The A-G’s objection will be fully heard on Aug 8. Pending that date, High Court judge Justice Mohd Sofian Abd Razak had granted an interim gag order.

“Our position is that we are totally against it in principle, jurisdictionally and constitutionally because that is the right of free speech,” Thomas said.

He, however, said the prosecution was uncertain about how wide the scope of the gag order was.

“The interim gag is only for SRC (International) and the four charges.

“So, take the four charges and consult good lawyers for independent legal advice and let them tell you your rights. As for today’s proceedings, of course, you can report on it,” Thomas told the media yesterday.

Earlier in a court proceeding, the High Court granted an interim gag order against the media from discussing merits of the case after defence counsel Tan Sri Muhammad Shafee Abdullah made the request.

He claimed his client had been facing a trial by media since he stepped down as prime minister, adding: “He (Najib) has the right to a fair trial.”

Thomas objected to the request, citing freedom of expression and speech.

“What is the point of issuing a gag order when the whole world will talk about it?” he said.

Thomas gave the example of the Sarawak Report, saying that the website was read globally.

“The defence will have to put in an official application for the gag order, which we will be vigorously objecting to,” he added.

Thomas also told Muhammad Shafee to specify whom the gag order applied to, to which the latter replied: “The media, both digital and newspaper.”

When approached later, Muham­mad Shafee said the gag order was primarily aimed at stopping anyone from making statements that would get published in the media.

“Our Constitution guarantees a fair trial like most other civilised countries.

Lim Huey Teng/Malaysiakini

“One of the fundamentals of a fair trial is that you cannot discuss and issue statements commenting on the merits of the case in a prejudicial way, but if you’re reporting court proceedings, there is nothing wrong with it,” he said.

However, in a statement issued later, lawyer Syahredzan Johan said gag orders in principle were against freedom of expression.

He said Malaysia does not practise the jury system, therefore media reports on this case – whether on the merits or otherwise – cannot sway the judge.

“I am convinced that Najib will be dealt with fairly by the court based on the statements submitted, rather than be influenced by media reports.”

Syahredzan, who is also political secretary to DAP adviser Lim Kit Siang, said the case is high profile and would inevitably gain worldwide attention regardless of a gag order.

Therefore, a gag order will only end up punishing local media because the court has limited jurisdiction (and will find it hard to punish foreign media).

Meanwhile, lawyers also weighed in on the gag order, saying judges have no business barring the media from reporting on the case.

“To issue a gag order preventing discussions about a case is thus tantamount to the judge being of the opinion that he, himself, as a single judge, cannot otherwise give the accused a fair trial,” said vocal lawyer Azhar Harun, better known as Art Harun.

“Besides, a gag order may also be unconstitutional, it being repugnant to freedom of speech,” he added.

Lawyers for Liberty (LFL) said it was surprised and disappointed that the judge had allowed the request for a gag order.

LFL adviser N Surendran said the order breached Article 10 of the Federal Constitution which guarantees the right to freedom of speech and expression, including press freedom.

He added that there was no need for a gag order as there was 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?”

In a statement, he added that the judge in question had no 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.”

Noting that Najib’s case was now of global interest, he added that the order would not be binding on foreign media.

“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,” he said.