JANUARY 15 — If you need a recent elucidation of what a gag order is, read the decision of High Court judge K. Muniandy in the case of Public Prosecutor v Badrul Hisham bin Shaharin.

No prizes for guessing who the accused in that case is. If the judge sounds familiar, it is because he was the judge who ruled that the charges against the wife of former prime minister Najib Razak, Rosmah Mansor were illegal and flawed as the charges did not disclose any offence.

A gag order, as explained by the learned judge, is a legal order against the party to whom the order is addressed, to restrict him from disseminating information or comments to the public by whatever means, including social media, on a pending court proceeding.

The aim of a gag order is to deter prejudicial comments to be made by the party on the entire case, thus protecting the integrity of the court proceeding pending in the court. Once ordered and if it is violated by the party, it would lead him to a penalty for contempt of court.

The oft-quoted case on gag orders is the case of Attorney General v Times Newspapers Ltd [1974] where Lord Diplock said:

"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely on obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based on those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely on there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is a contempt of court”. (Emphasis added)

The rationale is this: any publication, be it electronic or otherwise, on an ongoing trial would have the tendency to report on matters beyond the events in a courtroom, and which if it takes place, would have the effect of undermining fairness of a trial.

To publicly share any facts about a case such as evidence which has yet to be tendered in court or expressing opinion on the guilt or innocence or fault of a party is prohibited, as it is considered prejudicial, and may affect the ongoing trial, especially when the said publication is widely circulated outside confines of the court. This would certainly sully "the pristine stream of justice in a pending court proceeding”.

The learned judge said:

"Ensuing from above, the sub judice rule has evolved to limit anyone including an accused person from publishing any part of the case or matters pertaining to his case, which is pending trial and determination by the court. Failure to abide by that golden rule may give rise to a dire consequence, like contempt of court against the publisher.

"To avoid such calamity in the administration of criminal justice and in a pending court proceeding be it for trial or judgment, the court is empowered to impose a gag order to restrain anyone including the accused from publishing on matters in respect of his case.

"The court as the final arbiter and bastion of justice, is in the best position to do so, as the case is pending before it and once a gag order is made, it would be in the best position to decide on the case freely, unhindered by any adverse and prejudicial comments emanating from irresponsible publication.”

Be that as it may, a gag order, in any case, has to be decided based on the case's own peculiar facts and circumstances. A decision on a gag order does not amount to one size that fits all cases. A gag order, again, is aimed at safeguarding, preserving and protecting the rights of the parties to a fair trial.

This gives the court the liberty to take judicial notice of the notorious fact that if comments are made on a pending case, by any party on social media, it would invite comments by netizens who may support a party in the court proceedings.

Such comments may be prejudicial and if read by reasonable men or by the judge himself, would have tainted and prejudiced their minds, which should not be the case.

The judge is supposed to be an arbiter of the criminal case without any bias, fear, favour or prejudice. He is to decide on a case premised on admissible evidence only and not hearsay matters that come to his mind.

It is this kind of dissemination of information that has the tendency to cloud the mind of the public or even the presiding judge and be prejudiced by it.

So, in the interest of justice, such dissemination of information ought to be deterred and nipped at the bud, by a gag order.

What more, the information disseminated is in respect of a pending case before a court and yet to be judged and determined by the court.

The court takes over conduct of the case that comes before it to ensure justice is not compromised for all parties to the proceedings. Accordingly, issues and arguments ventilated during court proceedings have to remain fresh and not as those addressed in a publication outside the courtroom, or sullied by it. That preserves the sanctity and integrity of the court proceedings.

One may argue that prejudicial publication should not affect a professional judge presiding over a case, but Justice K. Muniandy had this to say:

"It is easier said that any form of prejudicial publication would not affect the trial judge presiding over a case, as he would be able to sieve through consideration of the case on a measure of relevancy and not swayed by irrelevant information or public opinion.

"However, judging a case and exercise of judicial discretion is a pristine act and it ought not be sullied by prejudicial comments made by any individual, including the accused, thus preventing the judge to contain himself with only the core and jugular, which is the facts of case, its circumstance, admissible evidence and the law applicable.

"Hence, it is only ideal for a judge to try a case without any other publication lingering and affecting his judicial mind, in order for him to arrive at a decision fairly and justly.”

In his concluding remarks, the learned judge said:

"The risk of prejudice to a fair trial has to be circumvented at all cost and nipped at the bud, so that justice of the case will prevail. The court shall jealously safeguard and preserve it to its core.”

In deciding that a gag order was proper in the circumstances of the case, the learned judge acknowledged the scholarly work of Shukriah Mohd Sheriff titled "Sub Judice and Gag Order: The Recent Development in Malaysia” 30 (2) IIUMLJ 1-22, wherein the learned writer gave an insightful view of the legal principles on the issue at hand and the approach adopted by the court when dealing with accusatory publication and also how the court is guided to arrive at a proportionate ruling when confronted with the issue at hand.

"The said article has assisted me a great deal in the preparation and rendering of this judgment,” said the learned judge.

So, do like the judge did: READ!

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.