Najib fails to obtain gag order on media
Published on: Saturday, August 11, 2018

Kuala Lumpur: The High Court here on Friday dismissed the application by former Prime Minister Datuk Seri Najib Tun Razak for a gag order restraining the media and public to publish statements on the merits of his criminal charges which would infer Najib's guilt pending the disposal of his case.Judge Mohd Nazlan Mohd Ghazali found Najib's application to be unsustainable and therefore dismissed the notice of the motion for a gag order.

"Further, the specific term of the gag order applied for, in this case, if granted would represent a major incursion into the constitutional right of freedom of expression and speech under Article 10 of the Federal Constitution as well as unjustified departure from the open justice principle of Section 15 of the Courts of Judicature Act 1964.

"This is with a part from the technical floor that the scope of the proposed gag order stated in the notice of motion is inconsistent and under this circumstances does not in my view promote the objective of the law as an instrument of justice. In view of the foregoing broad reason, I hereby dismiss this application," he said.

He also said whilst the court might have the jurisdiction to issue a gag order in the nature of a prior restraint in this case, a proper determination of whether there had been a real prejudice to a fair trial and the administration of justice led the court to the conclusion that the application could not succeed based on these reasons.

Firstly, he said existing law of contempt and defamation already provided available and ready measures to deal with any such substantial risk of prejudice or interference with the criminal justice system.

He said secondly, prior restraint had been a form of a further extension to the law of contempt and could only be granted in the most exceptional of cases, where the substantial risk of prejudice was especially clear, imminent and serious.

"There is in any event a high burden of showing the presence of the substantial risk of prejudice to a fair trial or the administration of justice in a situation involving both the usual contempt and the prior restraint in view of the fact that the cases are tried by a single judge sitting alone without a jury," he said.

Earlier, lawyer Tan Sri Muhammad Shafee Abdullah, who is representing Najib, submitted that his client had his right to have a fair trial and not trial by the media or by the court of public opinion.

He said there were adverse comments by media and the public against his client which had a tendency to inflame and excite passions on the applicant (Najib) and the merit of the case and pointed out that following adverse remarks Najib had already been guilty of charges framed on him.

Muhammad Shafee also read several reports from the whistleblower site, Sarawak Report, and comments from the public published in Malaysiakini to which he described as very serious allegations that would be prejudicial to Najib.

He said Prime Minister Tun Dr Mahathir Mohamad, Malaysian Anti-Corruption Commission chief Datuk Seri Shukri Abdull, Attorney-General Tommy Thomas, Finance Minister Lim Guan Eng and Damansara Member of Parliment Tony Pua had also made disparaging remarks about Najib in relation to the case.

"They made rude and venomous statements to my client. How will he get a fair trial?" questioned Muhammad Shafee who took almost three hours to submit on the issue.

He also said the defence was concerned about the administration of justice following a trial by media through comments made by the public and articles published relating to his client's case which could have undermined the judiciary.

"The gag order will prevent the public from being given the 'oxygen of publicity' which will have an adverse impact on my client and the trial," he said.

Muhammad Shafee said, however, the media could report what had transpired in court including unfair remarks from the judge or witness in the course of trial.

"We are not stopping any report that happened in court but the statements and comments by the public towards my client have presupposed the guilt of my client," said Muhammad Shafee adding that the court should have granted the gag order as there was a very real danger that a trial by media and public at large would unduly prejudice the course of justice which consequently will adversely affect Najib's right to a fair trial.

"This court is vested with the inherent jurisdiction and consequently has the power to grant a pre-emptive order as applied by the applicant," he said.

Head of the Appellate and Trial Division in the Attorney-General's Chambers, Datuk Mohamad Hanafiah Zakaria countered that the public had the right to make statements and the court could not stop them from doing so.

He said the court would not be influenced by the statements in arriving at the decision.

Referring to the statements and comments read out by Muhammad Shafee, he said "It is their rights to make such comments".

"The applicant can take contempt of court against them, but until now not a single case had been brought by the applicant against them in court," he said.

Mohamad Hanafiah also said Najib in his affidavit to support his application had also failed to show the statements had prejudiced him to a fair trial.

He also said the applicant was wrong to name the public prosecutor as a party in the notice of motion to obtain the gag order and it was difficult for the court to impose the gag order on a party or public at large.

"The court cannot make the gag order on the public at large. Hence, the application must be specific and name the respondents," he said.

After the ruling, Muhammad Shafee said he would file an appeal against the gag order's decision at the Court of Appeal on Monday.

On the three CBT charges, Najib, 65, was accused of, as an agent, namely the Prime Minister and Finance Minister of Malaysia, Advisor Emeritus of SRC International Sdn Bhd (SRC) and in those capacities entrusted with control of funds belonging to SRC International totalling RM4 billion, having committed CBT involving a sum of RM27 million.

He was accused of committing the offence at AmIslamic Bank Berhad, Ambank Group Building, No 55, Jalan Raja Chulan, here, between Dec 24 and Dec 29, 2014, and charged under Section 409 of the Penal Code which provides for a maximum jail term of up to 20 years and whipping and also a fine, if convicted.

On the second count, Najib was charged with, as an agent, which is the Prime Minister and Finance Minister with control over SRC funds totalling RM4 billion, having committed CBT involving RM5 million at the same place and during the same time frame.

On the third count, Najib was charged with, as an agent which is the Prime Minister and Finance Minister entrusted with SRC-owned funds of RM4 billion, having committed CBT involving RM10 million at the same place between Feb 10 and March 2, 2015, according to the same section of the Penal Code.

On the fourth count, Najib was charged with, being a public official, namely the Prime Minister and Minister of Finance of Malaysia, having used his position to commit bribery involving RM42 million when he was involved in a decision on behalf of the Malaysian government to provide government guarantees for loans from the Retirement Fund Incorporated to SRC International amounting to RM4 billion.

He is accused of committing the bribery at the Prime Minister's Office, Precinct 1, Putrajaya, Federal Territory of Putrajaya, between Aug 17, 2011, and Feb 8, 2012.


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