July 8, 2018
Gag Order: An Act of Media Self-Censorship
by Bob Teoh@www.malaysiakini.com
COMMENT | The gag order placed on the High Court trial of former Prime Minister Najib Abdul Razak impairs both open justice and fair reporting. It should be removed at the earliest opportunity.
In the first place, the order is unclear in its scope of restriction. Thus, there is no compelling reason for the media to comply as in doing so it would constitute an act of self-censorship.
This would not only be against the conscience of journalists, it would also be an affront to the new democracy that is emerging after May 9, when the people voted convincingly for a return to constitutional democracy.
Journalists can continue to pursue court reporting in the manner they have always practised in fair conscience. Don’t let anything or anyone gag you. Most of all don’t ever gag yourself again, for that would be a disgrace to your calling.–Bob Teoh
The gag order was issued to ensure a fair trial and to prevent a trial by media, as claimed by the defense counsel. But this is both nebulous and untenable and the order is unprecedented.
This is censorship of the press and, far from preventing a trial of public opinion, the move will only encourage fake news to surface in the ensuing absence of fair and responsible reporting. We must not allow unclear restrictions to shut the door to press freedom and open justice.
Malaysia is a Commonwealth country and our judiciary can follow the open justice convention as espoused by countries like the United Kingdom and Australia where prior restriction to fair reporting is already available.
Likewise, in Malaysia, there are also prior restraints to court reporting like evidence in camera in rape cases where the press is excluded. There is no need for gag orders.
The Najib trial is about alleged corruption and abuse of power in the highest levels of government. Public interest is best served by the widest coverage through fair reporting. The media has its fundamental obligation to report factually, accurately and fairly.
Such reportage must be contemporaneous and not be kept in abeyance for two months, as the gag order demands. That would be stale news and indeed likely to constitute an offence according to the international convention of court reporting.
The Aattorney-General Tommy Thomas (photo), as the lead prosecutor, must appeal against the gag order vigorously and urgently. So too must the Bar Council and human rights agencies like the National Human Rights Commission (Suhakam) and the National Human Rights Society (Hakam).
The media through their own bodies like the National Union of Journalists, publishers and editors associations and the Malaysian Press Institute too must make their representations to the court in no uncertain terms.
Najib, 64, was charged yesterday with misusing his position to receive a RM42 million bribe as inducement to provide a sovereign guarantee on behalf of the Malaysian government for a loan of RM4 billion from the pension fund Kumpulan Wang Persaraan (KWAP) to SRC International.
He also faces three other charges of criminal breach of trust (CBT) in his capacity as Prime minister, finance minister and advisor emeritus of SRC International, in which he was entrusted with the RM4 billion.
The first offence of bribery under Section 23 of the MACC Act 2009 is punishable by up to 20 years’ prison and a fine equal to five times the bribe amount.
The other charges under Section 409 of the Penal Code (CBT by public servant) are punishable by up to 20 years’ prison, whipping and a fine. Due to his age, if found guilty, whipping would not be applicable.
Najib’s lead counsel, Muhammad Shafee Abdullah (photo) said the gag order is to “ensure nobody makes unfair comments about the merits of the case in order to get it published by media”.
A breach of the gag order would be contempt of court, Shafee said. But he said news organisations would not be barred from reporting “clinically” on Najib’s cases. There is no such thing as clinical reporting. Only fair reporting, the hallmark of journalism, is needed.
The interim gag order expires on August 8 when Najib’s CBT and corruption cases are scheduled to return to the High Court for management. Shafee said the defence team will then argue for a gag order in full.
Attorney-General Tommy Thomas said, “The defence will have to put in an official application for the gag order, which we will be vigorously objecting to.” The High Court had tentatively set trial to start from February 18 next year.
High Court judge Justice Mohd Sofian Abd Razak then granted the interim gag order and fixed August 8 for a hearing on the official application.
Guiding court coverage
In his introduction to an official guide for judges and the media, “Reporting Restrictions in the Criminal Courts April 2015 (Revised May 2016)”, Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales writes:
“Open justice is a hallmark of the rule of law. It is an essential requisite of the criminal justice system that it should be administered in public and subject to public scrutiny. The media play a vital role in representing the public and reflecting the public interest. ”
In recognition of the open justice principle, the official guide points out that the general rule is that justice should be administered in public. To this end:
- Proceedings must be held in public.
- Evidence must be communicated publicly.
- Fair, accurate and contemporaneous media reporting of proceedings should not be prevented by any action of the court unless strictly necessary.
Therefore, unless there are exceptional circumstances laid down by statute law and/or common law, the court must not:
- Order or allow the exclusion of the press or public from court for any part of the proceedings.
- Permit the withholding of information from the open court proceedings.
- Impose permanent or temporary bans on reporting of the proceedings or any part of them.
The official guide also points out that the courts and Parliament have given particular rights to the press to give effect to the open justice principle, so that they can report court proceedings to the wider public, even if the public is excluded.
Guidance is based on the recommended approach to take when making decisions to exclude the media or prevent it from reporting proceedings in the courts. The guidance takes the form of an easy reference checklist for use in court.
In the light of this, what is clear is that the High Court gag order in the Najib trial is unclear. An unclear court order is a bad order. This does not serve open justice and fair reporting.
Journalists can continue to pursue court reporting in the manner they have always practised in fair conscience. Don’t let anything or anyone gag you. Most of all don’t ever gag yourself again, for that would be a disgrace to your calling.
BOB TEOH is a media analyst and a readers’ advocate.