Understanding the Law on Gag Orders in Malaysia: Balancing Freedom of Expression and Judicial Integrity

Introduction

On 30 December 2024, I had the opportunity to be present at a court hearing where the accused were formally charged. During the proceedings, the defence counsel applied for a gag order, seeking to prevent any media coverage or public discussion about the accused. The argument put forth was that such coverage would amount to sub judice, as the accused were prominent figures in their particular state. The defence contended that if the gag order was not granted, their clients’ businesses and reputations would suffer severe consequences due to widespread media attention and public speculation.

Despite these concerns, the court rejected the application, stating that the necessary legal requirements were not met. The presiding judge emphasized that mere public interest or potential reputational harm did not justify restricting freedom of expression unless there was a real and immediate risk of prejudice to the judicial process. This experience provided valuable insight into the delicate balance between freedom of expression and judicial integrity in Malaysia’s legal system.

The concept of gag orders is closely linked to the sub judice rule, which restricts public discussions about ongoing trials to prevent undue influence on judicial proceedings. This article will examine the legal framework governing gag orders in Malaysia, key judicial precedents, and the challenges in balancing media freedom with the right to a fair trial.

The Legal Basis of Gag Orders and the Sub Judice Rule

The sub judice rule is designed to prevent interference with judicial proceedings. Under this rule, making public statements or publishing materials that could prejudice an ongoing trial may constitute contempt of court. Malaysian courts have the authority to issue gag orders to restrict public discussion of a case if it is deemed necessary to protect the administration of justice.

Article 126 of the Federal Constitution grants Malaysian courts the power to punish acts of contempt, including breaches of the sub judice rule. The courts may issue committal orders against individuals or organizations that publish prejudicial material about an ongoing case. 

However, not all applications for gag orders are granted, as demonstrated by significant cases such as Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor (“DSNR case”) and Public Prosecutor v Arumugam a/l Dorasamy (“Arumugam case”).

Key Judicial Precedents on Gag Orders

In the DSNR case, the court rejected former Prime Minister Najib Razak’s request for a gag order to prevent media coverage and public discussions about his corruption trial. The defence argued that extensive media reporting could unfairly influence public perception and jeopardize a fair trial. The court’s decision was based on several factors, including the absence of an immediate and substantial risk of prejudice. The court ruled that judges are trained professionals who base their decisions on legal evidence rather than media reports. Additionally, alternative legal remedies were available, as any defamatory media publication could be addressed through defamation laws. The court also emphasized public interest and freedom of expression, noting that the case involved allegations of corruption, making it a matter of legitimate public concern. The ruling in the DSNR case set a legal precedent, establishing that media coverage alone is insufficient to justify a gag order unless there is clear and immediate prejudice to the trial.

In contrast, in Public Prosecutor v Arumugam, the court granted a gag order after finding that the accused had used social media to discuss the case and discredit witnesses. The court determined that the accused’s public statements had directly influenced witness testimonies, leading to concerns about trial integrity. The gag order was deemed necessary to prevent further prejudicial statements. The case involved sensitive matters where uncontrolled media coverage could interfere with judicial fairness. This case demonstrated that a gag order may be granted when public statements create a real and substantial risk to the fairness of a trial.

The Three-Part Test for Granting a Gag Order

Following these landmark cases, Malaysian courts have developed a three-part test for assessing gag order applications. First, courts must determine whether there is an immediate threat of real and substantial prejudice to the trial. Public discussion or media reports must pose a genuine risk to the trial’s fairness. Second, courts must assess whether there are alternative legal remedies available. If defamation or contempt laws can address the issue, a gag order may not be necessary. Finally, the courts must consider whether the gag order is necessary and proportionate, ensuring that the right to a fair trial is balanced with the principle of freedom of expression.

Challenges in Enforcing Gag Orders

Balancing judicial fairness and press freedom is a significant challenge. Courts must protect the right to a fair trial while ensuring that media restrictions do not infringe upon freedom of speech. Overly broad gag orders may be seen as censorship, undermining public trust in the judiciary. Another challenge is the rise of social media and the digital age. Controlling information dissemination has become increasingly difficult due to the nature of online platforms. Unlike traditional media, social media lacks editorial oversight, making enforcement of gag orders more challenging. Additionally, international media and cross-border reporting present obstacles, as even if a Malaysian court grants a gag order, international media outlets are not bound by it. This creates disparities in information access between local and global audiences.

Conclusion

The Malaysian legal framework on gag orders and sub judice seeks to balance freedom of expression with the right to a fair trial. The DSNR and Arumugam cases illustrate how courts assess the necessity of gag orders, emphasizing the need for an immediate risk of prejudice before restrictions are imposed.

The three-part test established by the courts provides clear guidelines for future applications, ensuring that gag orders are only granted when absolutely necessary. However, the rise of social media poses new challenges in enforcing these legal principles, requiring a modernized approach to judicial integrity in the digital age.

Moving forward, public awareness and responsible reporting will play a crucial role in preserving judicial fairness while upholding constitutional rights in Malaysia’s evolving legal landscape.