YOURSAY | ‘Such an order will stifle free expression and deprive the public of access to rightful information.’
Lawyer: Judge has no power to gag 'world at large'
Anonymous 2413471460628504: I agree with lawyer N Surendran on his points that the judge presiding over former prime minister Najib Abdul Razak’s trial has no power to gag the world and that, even so, gag orders are aimed at jury trials.
Unfortunately, that's how some lawyers argue cases. They seek court orders without considering the wherewithal of a rule, and in some cases even pluck indiscriminately, phrases from a long paragraph and declare the truth of it whilst ignoring the rest of the passage.
It is particularly galling when one considers that lawyers are specifically taught that everything is all about context.
A right in one situation is not necessarily a right in another. One wonders if these lawyers argue in this manner because their audience here are susceptible to such "sleight of hand", except that there is barely any "sleight".
An active reading of the passage in question or even some engagement of the mental faculty on the part of the arbiter concerned would always put paid to such shallow arguments.
Kim Quek: This gag order is neither legally and rationally justified nor enforceable.
While on the one hand, it stifles free expression and deprives the public of access to rightful information, it gives the accused undeserved protection from proper exposure of his alleged crimes against the state on the other hand.
At the end, such a gag order does not only fail to advance justice for the accused, it inflicts a gross injustice on the public by depriving them of their constitutional right to have full and unrestricted information on the case.
The Pragmatist: Our High Court judges lack experience of this scale and prominence.
Yes, what sense is it to issue a gag order when it can't be implemented globally and in today's world of social media reporting.
Surely, it should at least be deliberated and thought through with the prosecution studying it first before the interim gag was placed.
And most importantly, Najib is a person of public interest and everything about the case is a matter of public interest. We want to know, it is also our right too.
Anonymousytmq123: A gag order must draw a distinction between "reporting" and "commentary". Failure to do so means that the terms of order of the court are not of sufficient clarity.
Anonymous_1527658987: I’m curious. But what about sub judice? In England, you cannot comment about a case while it is in progress.
Does that not apply in a common law jurisdiction like Malaysia? In America, there is no such thing of course, because of the First Amendment.
Pakcik Am: Indeed, giving a blanket gag order was unnecessary when there is already an established law relating to contempt of court for discussing matters which are sub judice.
WilliamWallace: If the Wall Street Journal or New York Times publishes news irrespective of the gag order, what can the judge do?
This falls outside the jurisdiction of Malaysia, so the gag order is defunct. This is because there is always a legal lag between legislation and industry.
The gag order is irrelevant because there is no jury. There can be no trial by media. There are no juries to be influenced.
Judge hearing Najib's case is sibling of Umno strongman
Anonymous 2327531438397239: With this revelation, the judge should recuse himself and the chief justice must ensure judges handling Najib’s case must be above board without any interest or ties to anyone or any party.
We can’t allow any of the old practices which must be eliminated.
NewMsian: Yes, Justice Sophian Abdul Razak must be recused from hearing this case since there's a strong possibility that his judgment may be impaired by his brother's Umno connections.
In fact, all judges must declare their political affiliation or those of their family members so as to ensure that conflicts of interest are ruled out.
In this case, it's appropriate that another High Court judge be assigned to hear this case.
Ngms: Many of the comments want attorney-general Tommy Thomas to do something.
What should he do? Change the judge so that he or she is related to Prime Minister Dr Mahathir Mohamad instead?
Please be clear about how the judge was chosen before asking Pakatan Harapan to meddle with the judiciary.
Is this not what we hoped for? An independent judiciary?
Clever Voter: It is frightening to imagine a scenario where the judges represent the last line of defence for the accused.
Rule of law can only be effectively implemented if there is an unbiased judiciary free from any prejudice, association or even relationship with the parties.
Jaded: A judge must recuse himself from presiding on a case when there is an obvious risk of biases by virtue of his relations.
The judge, at any rate, must disclose this to all the parties involved before the trial even takes place. The onus is on the judge to disclose or recuse.
Sun: The judge should have declared his ties and allowed the parties to decide if they were comfortable with it.
We cannot expect Thomas to go through the family tree of all the judges.
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