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"Media gag" in Malaysia's Najib case is nothing special

Editorial Staff

Ironically, the new-found press freedoms (which have not been backed by changes in legislation) have demonstrated a problem. The media, which has long had oppressive control foisted on it has learned self-censorship drawn far inside boundaries in countries with greater press freedom. Now the problem is this: domestically trained journos don't know where boundaries should be. So when an application was granted for restrictions on reporting matters subject to charges against former PM Najib Razak, there's mistaken outrage.

Malaysia remains a largely Common Law country. So in any discussion of its legal position, in the absence of specific legislation, the Common Law is the primary starting point and that, inevitably means, looking at the UK first then Malaysia for any local deviations, then at the Commonwealth and then other Common Law countries.

So, what are the restrictions on UK media relating to trials. They are, in fact, long established and fundamentally very simple: once court proceedings are commenced, the case is "sub judice" and while facts may be reported, there must not be media discussion of the merits of the case. In criminal cases, the proceedings commence once a person is arrested - which is, of course, often some time before charges are laid.

When Najib appeared before the Court for the first time this week, his lawyers made a surprise request for an order that the media not cover the proceedings. After argument the Court ordered a temporary 14 day ban on reports that discuss the merits of the case. In short, facts in evidence are fine, opinion is not.

That is entirely consistent with the position under Common Law. Yes, there have been cases where it has been eroded or varied but the core principle remains intact.

The Government argued against the application first on the basis that it was made without notice (the new Attorney-General found himself having to explain after the hearing that the term "taken by surprise" when used in Court has a technical meaning and it doesn't mean that there was shock and awe which is how some media had described his reaction to the application, demonstrating the dangers of editorialising that characterise the new freedoms. Secondly, it argued against it on the basis that the case will be heard by a judge alone who is above being swayed by media reports and opinion, and the absence of a jury makes such an order otiose.

Rightly, it is here submitted, the Court took the middle ground. It did not ban reporting but it did ban opinion and discourse. That will reduce the instances of fake news, false reporting and general dependence on rumour which, in the absence of a credible independent media, has been the primary source of (usually mis-)information for Malaysians for many years.

There will be those who argue that the Court has gagged the media but it hasn't. It has merely given the media parameters within which it must work and those parameters are those widely accepted across the Common Law world.

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