JANUARY 22 — The Attorney-General’s Chambers (AGC) has reportedly filed for a gag order forbidding any party from discussing the issue relating to Datuk Seri Najib Razak’s judicial review concerning his claims of the existence of an additional document that purportedly allows him to carry out the remaining duration of his six-year prison term under house arrest.
The filing has not been well-received by some quarters, viewing the application for a gag order as reflective of the government track record of suppression of freedom of expression and right to information.
But applications for gag orders have been made by both parties to proceedings in court.
Take the case of Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor [2019] 8 MLJ 624.
When the accused was first charged on July 4, 2018, the accused, through his lead counsel, applied for an interim order prohibiting any publication and discussion on the merits of the four criminal charges against the accused until disposal of the criminal trial.
In support of the application for the interim gag order, the lead counsel for the accused submitted that there had been unprecedented adverse publicity against the accused that would prejudice a fair trial of the accused.
The application was strongly objected to by the prosecution, then led by the Attorney-General (AG) himself.
The presiding High Court judge then allowed the application but directed that the accused make a formal application within 14 days to enable the issues to be fully argued by both the accused and prosecution.
In allowing the application the learned judge ruled that the interim gag order would expire on August 8, 2018.
The accused accordingly filed a notice of motion on July 18, 2018 for a formal application for a gag order which was fixed to be heard by the High Court judge on August 8, 2018.
On that date, however, the prosecution proffered three additional charges against the accused. These were read to the accused before a new judge, Justice Mohd Nazlan who was transferred to the court as part of a transfer exercise involving judges, as directed by the Chief Judge of Malaya.
As the written submissions on the application for the gag order were only exchanged between the parties a day before, Justice Nazlan agreed with the request of the parties for the hearing of the application for the gag order be fixed two days later on August 10, 2018.
On that date, the learned judge heard lengthy submissions from both the lead counsel for the accused and the lead deputy public prosecutor (DPP).
The lead counsel for the accused made it clear that he had no issue with accurate reporting and articles which were fair, factually accurate, and published contemporaneously and made in good faith.
The principal objection was against publications containing opinions on the guilt or innocence of the applicant or on the character of the accused and the witnesses, and discussions on the merits predicting or influencing the outcome of the trial.
The lead counsel forcefully argued that the gag order was necessary to prevent especially future sub judice materials and discussions from prejudging the matters like the criminal charges which were already under the purview of the court.
The lead counsel also forcefully made the assertion that unrestrained trial by media, including the social media, would not only place undue influence on the minds and ability of witnesses to give testimony truthfully, and result in unconscious effects on the trial judge in assessing the evidence and the credibility of witnesses, but would also affect adversely the integrity of the administration of justice as a whole.
The lead counsel then examined various Commonwealth authorities, particularly Indian, Canadian and English case laws on the subject and invited the court to grant the gag order as applied for on the basis of the following considerations.
First, there was a risk of substantial prejudice to the accused given the accused’s claim of the media furore surrounding his alleged criminal wrongdoings and the resulting public backlash having the effect of presupposing the guilt of the accused, affecting witness testimony, and the risk of the displacement of judicial power and due administration of justice in favour of pre-trial and prejudicial publicity.
Secondly, other than the gag order, there were no alternative measures that could instead be made to ensure the accused receive a fair trial. An order for the trial to be delayed for instance would serve only to deny the accused to the right of a speedy trial.
Thirdly, the gag order would be proportionate and not unfairly impinge upon the interest of free speech, and that it would be insufficient to merely weigh the right to freedom of expression by the media against the right of an accused to a fair trial since the latter has far reaching consequences for the liberty of an individual, like the accused who was facing seven criminal charges.
Based on the above, wasn’t the learned counsel seeking to protect the accused from being substantially prejudiced?
It is therefore ironic that the AGC’s application for a gag order has been viewed as an attempt by the AGC to prevent public discussion of the case, arguing that the application for a gag order by the AGC was aimed at protecting the AGC and the former AG.
There have even been calls for the former AG to resign for misleading the High Court during the leave stage of the application for judicial review by not acknowledging the existence of the addendum order during judicial review proceedings, a stance that led to the High Court’s dismissal of Najib’s application.
Wasn’t the principal reason for the application of the gag order in 2018 to prevent publications containing opinions on the guilt or innocence of the accused, among others?
So, why call for the resignation when the substantive stage of the judicial review has not even been argued and ventilated before the court?
The AGC is exercising its right to apply for a gag order. The terms and ambit of the gag order may be too wide but let the court decide the matter.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
