Why gag the media?

THE High Court has issued a gag order against the media. It cannot discuss the merits of Najib's pending criminal trial. This is ostensibly to ensure that he is not subject to adverse publicity ("trial by media") which could prejudice the outcome of the case. For any breach of the order the offender can be hauled up by the court; and even sent to prison for contempt.

A drastic order indeed. But what of the freedom of speech – in this case of the media and the public – guaranteed by the Federal Constitution. For sure this right is not absolute. So really the question is: can the court make such an order. If so, when?

The public will be shut out from any prior media coverage and discussion of a case that is generating as much interest and excitement as the World Cup and Wimbledon games combined. For the first time ever the spectacle of the outgoing prime minister charged for high crimes.

Why such gag orders? In England from where our legal system has emerged, decisions in serious criminal trials are made by a jury of 12 lay persons. They never give reasons for their decision. It will never be known if they were influenced by any hostile publicity against the accused. This undermines confidence in the criminal justice system. Indeed, an accused could be acquitted if prejudicial publicity was shown. Hence the justification for gag orders against the media.

But this is in stark contrast where a judge decides the case. As in Malaysia. He or she is a professional trained to disregard any such media publicity. And decides a case based on evidence given in court. That evidence is tested by examination and cross examination of witnesses by lawyers. The judge must give reasons for his decision. And his decision is appealable. If shown to be influenced by any extraneous information – from wherever taken, including the media – the decision will be set aside. So essentially in a trial by a judge there is no issue of media publicity affecting the outcome.

Even in the case of trial by jury (abolished long ago in Malaysia), substantial risk must be shown before a gag order is made. As the illustrious Lord Denning said, a judge before imposing a gag order must remember that "at a trial judges are not influenced by what they may read in the newspapers. Nor are the ordinary folk who sit on juries, they are good sensible people. So the risk of them being influenced is so slight that it can usually be disregarded as insubstantial and not the subject of (a gag order)". (R v Horsham Justice, ex p Farquharson [1982]).

The English House of Lords credited the jury "with the will and ability to decide the case only on the evidence before them": Ex p Telegraph plc [1993].
Courts implicitly acknowledge the ability of a juror "not to accept as true the contents of a publication just because it has been published": AG v MGN Ltd (2001). Indeed, despite a barrage of adverse publicity against an accused imam of a London mosque (characterising the accused as an ogre and a public enemy), the court held that the judge's detailed, careful and skilful directions on the media coverage had neutralised any risk to the accused: R v Abu Hamza (2006).

Hence there is simply no basis to fear any real prejudice to an accused where the judge himself is to decide the case on the evidence presented.

And what of the other competing interest – ensuring a free press to promote open justice? Our Constitution guarantees that freedom of speech can only be abridged on specified grounds such as national security, public order, morality and incitement to violence. Other matters such as defamation and contempt of court are covered by other laws.

The gag order in Najib's case may even be challenged as unconstitutional. In the US – where jury trial for criminal cases is the norm – the Supreme Court has ruled that no gag order can be constitutional. Because it is entirely speculative to predict the manner in which prejudicial information will be published; the emphasis it would be given, the context or purpose for which it is reported, the scope of the audience exposed to the information, or the impact on the audience, especially potential jurors.

Additionally, rumours could run wild if there is no balanced press coverage and fair and open discussion of a case such as this.

In any event, how will the courts control international press coverage; or internet coverage? Will Najib's lawyers stalk the globe to gag these foreign press disclosures? And how to prevent access by Malaysians to these reports and commentaries in this age of digital technology?

Practically then gag orders would be essentially unworkable and even counterproductive. (They are only justified to prevent disclosure of the name of child victims or other vulnerable witnesses.)

Did the judge, before gagging the media, albeit in the interim pending an Aug 8 hearing, consider these matters, the constitutionality of the gag and whether he would be prejudiced against the accused after reading the media coverage?

Gurdial Nijar retired as a law professor at Universiti Malaya and is now a practising lawyer. Comments: letters@thesundaily.com