Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
The High Court here has granted an interim gag order against the media from discussing the "merits" of Dato' Sri Najib Tun Razak's case
Image credit: https://goo.gl/WAECbg
Recently, the arrest of former premier Dato’ Sri Haji Mohammad Najib bin Tun Haji Abdul Razak (Dato’ Sri Najib Tun Razak) garnered massive attention from the rakyat and the world. In response to such scintillating news, the Malaysian media outlets have given vast coverage on this issue from the moment of arrest up until the hearing before the Kuala Lumpur High Court. Tenaciously, these media outlets prescribed the background information and details of this arrest, which happened due to graft allegations in the management of the 1Malaysia Development Berhad subsidiary known as SRC International Berhad by Dato’ Sri Najib Tun Razak and his counterparts.
However, the Kuala Lumpur High Court, in its decision, included a gag order, which is defined as a “judicial ruling barring public disclosure or discussion (as by the press) of information related to a case”. It means that all media outlets are prevented from reporting or releasing any updates on the merits of the case to the public in order to avoid “trial by media”, as cited by the former prime minister’s defence counsel, Shafee Abdullah. In light of such a decision, the question on the relevance and the constitutionality of this gag order would arise. Does it impinge on the right to freedom of expression? Would it appear as a direct confrontation to the notion of media freedom? Does it contradict s. 7 of the Criminal Procedure Code which guarantees the courts to be open and accessible to the public generally?
II. UNDERSTANDING GAG ORDERS
Before we proceed with the technical questions, it is imperative for us to first understand the roots of such an order. A gag order falls within the classification of a “prior restraint”, which is any form of censorship imposed by a government or institution on particular instances of expression. In Anglo-American legal jurisprudence, prior restraints are considered as oppressive forms of censorship for their prevention of material from being distributed at all. However, in Malaysia a wealth of prior restraints exist through legislations like the Printing, Presses and Publications Act, the Communications and Multimedia Act and the Anti-Fake News Act. All of which the new government has consented to either amend or repeal. Hence, from its outset a gag order is presumably unconstitutional for its capability to impede the right to express and chill free speech effectively.
III. STRIKING A BALANCE
Nonetheless, the unconstitutionality of a gag order may be eclipsed by the right to a fair trial. This is because it is generally understood that media reporting - regardless of whether in an objective or prejudiced manner - may induce a “trial by media” by its capability to influence the jury or witness, or even cause a chaotic courtroom. A gag order may also prevail upon the consideration of the harm which may be caused on minors and other crime victims who may not wish to talk about their experiences openly. Hence, there is a need to balance between the competing interests of the right to expression and the right to a fair trial when considering the necessity of a gag order.
In the effort to achieve such a balance, the United States Supreme Court created a three-part test to evaluate the constitutionality of a gag order through the case of Nebraska Press Association v Stuart. The three-part test is as follows: (i) whether the publicity would harm the defendant’s right to a fair trial; (ii) whether the gag order is the least restrictive means possible to ensure that fairness; and (iii) whether the gag order will be effective. If a gag order satisfies all three parts, then it may be enforced. Looking at the current case at hand, the gag order issued by the Malaysian High Court is still in its interim stage, and is set to be determined on 8 August 2018. As the learned Attorney-General, Mr Tommy Thomas stated that he will oppose it during its official application by the defence counsel, the application of such a test should be left in the capable hands of the 12-man prosecution team.
IV. THE PRACTICALITY OF A GAG ORDER
However, regardless of such legal technicalities, the practicality of a gag order is questionable. It must be understood that a gag order mainly exists for the purpose of ensuring the objectivity of a jury pool before trial. In Malaysia, the usage of a jury system was abolished since 1995, with the Mona Fendy murder trial being one of the last cases to appear before a jury. Hence, a gag order is unnecessary. In fact, the existence of a gag order is based on the false presumption that extensive publicity would make the conviction of a defendant a certainty. However, high profile cases in the US such as the murder trials of the Menendez brothers and the OJ Simpson prosecution resulted in acquittals, thus questioning the truth behind publicity hurting criminal defendants. It should also be noted that a gag order would be counterproductive to the goal of fair judicial proceedings, as it would cause the public or the media to rely on less accurate sources of information. This situation would further aggravate the spread of false information which may mislead the public.
V. THE CONSTITUTIONALITY OF A GAG ORDER
Practicality aside, the question of the constitutionality of a gag order would also come into the picture. The existence of a gag order would infringe Article 10 of the Federal Constitution, which guarantees the right to free expression. This right is widely understood to be the cornerstone of democracy for the right of the people to have a lively and informed interest in the process of governance. This coveted right is also generally understood to be a combination of many rights in many forms. It could be argued that media freedom is also protected under the wide umbrella of Article 10, although it is not expressedly mentioned in the Constitution. However, the development in India through the case of Bennet Coleman v Union of India may be referred to, as the court upheld the notion that freedom of speech and expression includes freedom of the press.
Also, we may refer to international standards by looking at the Universal Declaration of Human Rights (UDHR), where Article 19 guarantees the right to freedom of expression: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers [emphasis added].”  Since Malaysia is a signatory to the UDHR, the covenants included in it must be observed. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) also embraces the right whereby the media may receive information on the basis of which it can carry out its function. The Human Rights Commission also decided in the case of Mavlonov and Sa’di v Uzbekistan that the public has a corresponding right to receive media output.
Hence, by looking at other jurisdictional approaches, it is clear that media freedom is a right that must be protected by the Federal Constitution. The commission of a gag order would infringe the general right to expression under Article 10 and the right to media freedom.
As a conclusion, the gag order issued by the High Court is questionable in the practical and constitutional perspectives. Constitutional lawyers and organisations like Lawyers for Liberty (LFL) have criticised the gag order for its apparent breach of Article 10 of the Constitution and for the absence of its need since there are no jury trials in Malaysia since 1995. In his humble opinion, the author shares the same view on the constitutionality of such an order, and with the consideration that it is also high time for the recognition of media freedom in the Constitution. The discussion on the legitimacy of the gag order in the coming trial would present a golden opportunity for a precedent which implies the right to media freedom within Article 10 to be established. Echoing the words of the newly appointed Foreign Affairs Minister, Saifuddin Abdullah, Malaysia shall push for ratification of six international human rights conventions. With hopes that these conventions include the ICCPR, International Covenant on Economic, Social and Cultural Rights (ICESCR), and such, it would be the right step forward for the courts to adhere to the international standards of media rights protection and press freedom. With the dawning of Malaysia Baru, her citizens deserve any positive change to the constitutional landscape of the nation, which may appear in the form of an affirmative nod to the importance of media freedom.
Written by Iqbal Harith Liang, a third year law student of the Faculty of Law, University of Malaya. Edited by Corina Robert Mangharam.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
 Panirchellvum, Vathani and Achariam, Timothy, “Najib Charged CBT, Abuse of Powers Involving RM 42 Million of SRC Funds (Updated)”, The Sun Daily 4 July 2018, 5 July 2018 <http://www.thesundaily.my/news/2018/07/04/najib-charged-cbt-abuse-power-involving-rm42-million-src-funds-updated>.
 Gag order. (n.d.). In Merriam-Webster.com. Retrieved 5 July 2011, from <https://www.merriam-webster.com/dictionary/gag%20order>.
 Nurbaiti Hamdan, “Najib’s Trial: Interim Gag Order Against the Media Granted”, The Star Online 4 July 2018, 5 July 2018 <https://www.thestar.com.my/news/nation/2018/07/04/najib-trial-interim-gag-order-against-the-media-granted/>.
 S. 7 Criminal Procedure Code (Act 593).
 Waldman, Jaqueline G., "Prior Restraint And The Police: The First Amendment Right to Disseminate Recordings of Police Behavior”, (2014) Illinois Law Review 311.
 Printing, Presses and Publications Act 1984 (Act 301).
 Communications and Multimedia Act 1998 (Act 588).
 Anti-Fake News Act 2018 (Act 803).
 Tarrence Tan, “Dr M: Pakatan to Repeal Controversial Laws Including Fake News Act”, The Stare Online 3 April 2018, 5 July 2018 <https://www.thestar.com.my/news/nation/2018/04/03/dr-m-pakatan-to-repeal-controversial-laws-including-fake-news-act/>.
 Crowell, Michael, “Gag Orders”, University of North Carolina School of Government, 5 July 2018 <https://www.sog.unc.edu/sites/www.sog.unc.edu/files/additional_files/GagOrdersarticle.pdf>.
 Farhi, Isabel, “When Silence isn’t Golden: How Gag Orders Can Evade First Amendment Protections”, Cased Disclosed, 24 October 2017, Yale Law School Media Freedom & Information Access Clinic, 5 July 2018 <https://law.yale.edu/mfia/case-disclosed/when-silence-isnt-golden-how-gag-orders-can-evade-first-amendment-protections>.
 See footnote 11 above.
 427 U.S. 539 (1976).
 Adam Aziz, “AG: No Grounds Given by Judge on Gag Order in Najib’s Case”, The Edge Markets MY 4 July 2018, 5 July 2018 <https://www.theedgemarkets.com/article/ag-no-grounds-given-judge-gag-order-najibs-case>.
 Amarthalingam, Sangeetha, “AG to Oppose Gag Order”, The Edge Markets MY 5 July 2018, 5 July 2018, <www.theedgemarkets.com/article/ag-oppose-gag-order>.
 Juraimi bin Hussin v Pendakwa Raya  2 CLJ 383.
 Menendez v State of California 194 Cal. Rptr. 805.
 Rufo v Simpson 103 Cal. Rptr. 2d 492.
 Cherminsky, Erwin, “Lawyers Have Free Speech Rights, too: Why Gag Orders on Trial Participants are Mostly Always Unconstitutional”, 17 Loyola of Los Angeles Entertainment Law Journal 311-332, 5 July 2018 <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2165&context=faculty_scholarship>.
  2 S.C.R. 757.
 Art. 19, Universal Declaration of Human Rights (UDHR).
 General Comments No 34, Human Rights Commission; Gauthier v Canada (1999) 7 IHRR 7.
 Mavlonov and Sa’di v. Uzbekistan Communication No 1334/2004.
 FMT Reporters, “Judges Have No Business Gagging Media, Public, Say Lawyers” Free Malaysia Today 5 July 2018, 5 July 2018
 Martin Carvalho, “Saifuddin Pledges to Push for Ratification of Six International Conventions”, The Star Online 2 July 2018, 5 July 2018. <https://www.thestar.com.my/news/nation/2018/07/02/saifuddin-pledges-to-push-for-ratification-of-six-international-human-rights-conventions/>.