Judges have no business gagging media, public, say lawyers

Former prime minister Najib Razak swamped by members of the media on his arrival at court yesterday. Lawyers say the judge has no jurisdiction to impose a gag order barring the media from reporting on the case. (Reuters pic)
Azhar Harun.

KUALA LUMPUR: Lawyers have questioned the gag order on any public discussion of the case involving Najib Razak issued by the High Court yesterday, 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.

Yesterday, Najib claimed trial to three counts of criminal breach of trust and one count of abuse of power, related to RM42 million allegedly siphoned from SRC International, a company linked to 1MDB.

High Court judge Mohd Sofian Abd Razak said the public should not discuss the four charges against the former prime minister through the media from now until Aug 8, when the matter comes up for case management.

However, Azhar said a judge was “a creature of law” who occupied the seat of justice and who was “blind to everything and deaf to all sounds except that which are before him in court and accepted by him as relevant evidence”.

An accused in Malaysia, he said, would therefore always have a fair trial regardless of what was discussed or said by the public because the judge was supposed to be oblivious to external discussions.

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

Najib’s lawyer Muhammad Shafee Abdullah had defended the gag order request by saying it was to prevent any pre-judgment of the case, although Attorney-General Tommy Thomas, who is leading prosecution has opposed the move.

Gag order ‘unconstitutional’

N Surendran.

Lawyers for Liberty (LFL) meanwhile 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.