The judge in former prime minister Najib Abdul Razak's case has no jurisdiction to issue a gag order binding "the world at large", lawyer N Surendran said.
"The judge trying the criminal matter has no jurisdiction or power to issue such an order against the media at large.
"He can issue an order that binds the parties in the case or in some cases all those present in court, but he cannot issue an order binding the world at large.
"Judges do not have such powers," Surendran, who is the Lawyers for Liberty adviser, said in a statement today.
The gag order also goes against the Federal Constitution, which guarantees freedom of speech and expression, which includes the freedom of the press, he said.
This gag order is a restriction on press freedom, he said, and hence it is unconstitutional.
"And to issue an interim gag order of this nature, without having heard the full merits of the application for a gag order, makes the order all the more untenable.
"No interim order should be issued in a case like this," Surendran, who was formerly the Padang Serai MP, added.
'Terms of gag order vague'
Surendran also criticised the terms of the gag order as being vague, ambiguous and uncertain.
"What does 'merits of the case' encompass? What can or cannot be reported? The court must not issue orders that lack clarity and such orders cannot be enforced," he said.
Most importantly, Surendran said, there is no need for a gag order as there is no jury in criminal trials in Malaysia.
The case is being heard by a single judge who is trained and experienced in considering only evidence presented in court and to exclude all extraneous matters.
"Competent judges are not supposed to be affected by any number of media reports on the case. Hence what is the need for a gag order?
"This case against Najib is of the greatest public interest, and public discussion of the case must not be prohibited and silenced," he said.
The gag order will also lead to absurd results as it does not bind the media abroad, which will continue to discuss the case as it is a case of global interest, Surendran added.
These foreign news reports on the case will be made available to Malaysians through the internet, he pointed out, and this will make a "mockery" of the gag order.
"It is a basic principle that courts must not issue orders that will lead to absurd consequences or which simply cannot be enforced.
"The attorney-general is strongly objecting to the gag order, hence it is hoped that this legally dubious gag order is set aside as soon as can be," Surendran said.
Najib was brought to court yesterday, where he was charged with three counts of criminal breach of trust (CBT) and one count of abuse of power.
High Court judge Sophian Abdul Razak granted the defence's application for an interim gag order after Najib's lead counsel Muhammad Shafee Abdullah argued that it was crucial to prevent statements that could affect his client's case.
He also cited alleged incidents of how his client had been subjected to a "trial by media" even before the case was heard in court.
Attorney-general Tommy Thomas argued against the gag order, arguing that the principles of freedom of speech under the Federal Constitution should remain supreme.