AGC fails to obtain gag and protective orders in Najib's house arrest bid

The High Court has dismissed the Attorney-General’s Chambers’ application to obtain gag and protective orders to restrict information and documents relating to former prime minister Najib Abdul Razak's house arrest bid from being disseminated to the public.

Judge Alice Loke Yee Ching dismissed the application today after finding that there is no real and substantive risk to the trial’s fairness if the case is being reported or held in open court.

“I’m mindful that a delicate balance needs to be struck between the objective of a gag order and freedom of speech and expression under Article 10 of the Federal Constitution.

“I do not think there is a real risk to the fairness of the trial, if a gag order is not issued (as) so much has been said in the public domain already on this matter.

“I find there are adequate alternative measures to address the concerns for which the gag order seeks to restrict (such as) laws of contempt or defamation,” she said.

Having considered the objective of the application, Loke said the term of the gag order in the application is too wide.

“I don't find the gag order necessary, on the whole, for these reasons. I am not minded to grant both the orders. The application is thereby dismissed,” she said.

She also ordered AGC to pay RM20,000 in costs to Najib.

The AGC filed the application on Jan 20, seeking to restrain any party, including the media, from publishing, broadcasting or disseminating anything related to the ongoing judicial review.

It claimed that this could cause public discussions and speculation that could trigger doubt, questioning, challenging or insulting against the Yang di-Pertuan Agong’s prerogative.

Senior federal counsel’s arguments

The judge delivered her decision after hearing and considering submissions from senior federal counsel Shamsul Bolhassan.

Shamsul had argued that the gag order is necessary to protect the parties’ interests, while the protective order is to preserve the confidentiality of sensitive information or documents relating to the case.

Commonly, the public can access documents related to a civil case via the court’s online e-filing system. However, Shamsul argued that if the protective order is granted, it would disable the public from obtaining the documents from the system.

“There are real and substantial risks to the fairness of the trial, as the subject matter of dispute relates to the Yang di-Pertuan Agong’s prerogative powers, which is not only non-justiciable in the court of law but also wholly improper to be condemned or criticised by the public at large.

“(While) the gag order sought was not an attempt to cast a blanket ban on all communications prejudicial to the respondents or the royal institution (but) it is to prevent discussions, misleading information and defamatory assumptions to be circulated in the public domain,” he said.

Without these orders, he added, the sub judice rule may easily be breached to a point that it could be detrimental to the administration of justice.

Najib's counsel, Shafee Abdullah, rebutted by saying that the gag order and protective order would violate Article 10 of the Federal Constitution, which guaranteed Malaysians’ fundamental rights to freedom of speech, assembly and expression, as well as Section 15 of the Courts Judicature Act 1964 that establishes the principle of open court.

Najib’s bid

Today’s proceedings began with the judge delivering her decision that dismisses Najib’s interlocutory application to amend his judicial review claims.

The former premier wanted to include the case chronology from when leave was first declined last year to when the Federal Court allowed leave and remitted the case to be heard before Loke.

Najib was also seeking to include damages in his judicial review claim, on the grounds that his liberty was deprived for over a year due to the delay in enforcing the royal addendum order that allegedly allows him to serve the remainder of his jail time at home.

“(Allowing this application) would be tantamount to allowing the applicant (Najib) to introduce a substantially new course of action (in this judicial review).

“I would consider it an injustice to respondents if amendments are allowed, as they would have to unnecessarily answer matters which are not the issues before this court. Therefore, this application is dismissed,” said the judge.

The former Pekan MP filed the judicial review on April 1 last year, seeking the court’s mandamus order to compel the government and six others to confirm the royal addendum order’s existence.

He named the attorney-general, the Home Ministry, the Prison Department commissioner-general, the Federal Territories Pardons Board, the Prime Minister’s Department (Law and Institutional Reform) and its Legal Affairs division director-general as the respondents.

On July 3 last year, the High Court denied Najib from pursuing his application, which led to his appeal.

The Court of Appeal then overturned the decision on Jan 6 this year and allowed Najib to adduce new evidence, which was his son Nizar’s affidavit and a letter from the Pahang royal household sultan affirming the royal addendum’s existence.

The Federal Court upheld the decision when it dismissed the AG’s appeal against the lower court’s verdict.

The court will hear Najib’s substantive judicial review on Nov 24.

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