Citing freedom of speech, judge throws out Najib’s gag order bid

Emmanuel Santa Maria Chin
Datuk Seri Najib Razak leaves the High Court in Kuala Lumpur August 10, 2018. — Picture by Azneal Ishak

KUALA LUMPUR, Aug 10 — The Kuala Lumpur High Court has dismissed an application for a gag order by former prime minister Datuk Seri Najib Razak’s lawyers to limit the merits of his criminal cases being published in mainstream media.

High Court judge Justice Mohd Nazlan Mohd Ghazali, in passing his judgment, explained the motion as unsustainable and in violation of freedom of speech.

“Decisions on the case will be made based on evidence presented in court and nothing else.

“Freedom of speech is curtailed by and subjected to existing laws on contempt and defamation, which already provides a safeguard and can be pursued if there is any wrongdoing,” he said.

Lead defence counsel Tan Sri Muhammad Shafee Abdullah, in acknowledging the judgment, said the defence would appeal the decision on the gag order on Monday in the Appellate Court in Putrajaya.

Mohd Nazlan explained that prior restraint, as a form of a further extension to the law of contempt, could only be granted in the most exceptional of cases, where the substantial risk of prejudice is especially clear, imminent and serious.

“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,” he added.

Earlier, during the morning session, lead defence counsel Muhammad Shafee had argued the gag order should be granted as a pre-emptive measure, to deter the masses from issuing statements that suggest either Najib is guilty or innocent even before any form of trial or conviction.

Today’s lead prosecutor, in the absence of Attorney General (AG) Tommy Thomas, deputy public prosecutor Datuk Hanafiah Zakariah then rebutted, saying the gag order would infringe on the tenets of freedom of speech.

After the lunch break, second defence lead counsel Harvinderjit Singh argued the gag order should be in place, or at least a directive given by the AG’s Chambers, specifically to detail to media houses and laymen on the fine line between opinion and sub judice statements.

“The court can tell the people; look, this is what will lead you to court for contempt,” he said after citing Article 126 of the Federal Constitution, which allows a Federal Court, Court of Appeal, or High Court to punish any contempt of itself.

The court then set October 4 for the next date for case management.