Gag order in trials, explained — Surendra Ananth

Datuk Seri Najib Razak arrives at the Kuala Lumpur High Court, July 4, 2018.  ― Picture by Shafwan Zaidon
Datuk Seri Najib Razak arrives at the Kuala Lumpur High Court, July 4, 2018. ― Picture by Shafwan Zaidon

KUALA LUMPUR, JULY 4 — What is a gag order?

It is an order from the court prohibiting certain groups from discussing the merits of the on-going trial. It is normally directed to the media

What is the purpose of such an order?

It is to ensure that the accused is given an effective right to a fair trial

How does the publishing of the merits of the trial affect his right to a fair trial?

The publishing of comments or opinions by various parties on the trial might affect the jury who will be deciding on the merits of the case. Members of the jury are ordinary folks, who like any human being, can be influenced by extensive reporting on the trial

Wait, hasn’t Malaysia got rid of jury trials?

Exactly! Which is why gag orders are not necessary anymore in this country. A trial is decided by an appointed High Court Judge, who is expected to decide any case solely on the evidence laid down before him/her. The accused will be given a fair trial regardless of what is said out there. The judge is expected to decide the case based on what happens in the court room. Granting a gag order is akin to saying that the judge might be influenced by media reports. The only person who decides at the end of the day is the judge. A High Court Judge is constitutionally expected to decide any case solely on the merits.

Aren’t such orders draconian in nature?

They are. They effectively restrict the freedom of expression which is a constitutionally guaranteed right. Such a right can only be restricted by Parliament. This is expressly provided for in Article 10(2)(a) of the Federal Constitution.

Further, the case at hand is being discussed all around the globe. It is imperative that the public be kept appraised of what happens in the trial.

The case involves public funds. The public is entitled to know what happens in the trial. The media’s role is imperative in keeping the public appraised.

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