Najib v PP & Sub Judice in Malaysia

The issue of sub judice arose in July 2018 as a result of a gag order[1] applied for by Dato’ Sri Najib Razak (“DSNR”) who had been charged in the High Court with the commission of various offences including money-laundering and corruption.

A month later, Tan Sri Tommy Thomas, the then Attorney General had said:

“Bear in mind we do not have a jury. Again you know, members of the Bar know my position for years. I have never accepted the principle of ‘sub judice’. The principle of ‘sub judice’ does not exist in Malaysia because juries don’t exist.”[2]

During the hearing of the gag order application, the prosecution had submitted that the rule of sub judice would be inapplicable in the instant case for the reason that the trial will be presided by a professional judge sitting alone in the absence of jury trials in this country.[3]

After having heard both parties, Justice Mohd Nazlan Mohd Ghazali (“Nazlan J”) dismissed the gag order application[4] for various reasons. In his written grounds, on the issue of sub judice, Nazlan J had stated inter alia:

“[44] One cannot disregard the risk of prejudice that could potentially be brought about by pre-trial publicity. To start with however, it is not disputed that it is generally considered improper for publications be made in respect of on-going court cases which are pending judicial determination. As stated earlier, sub judice is part of the law of contempt, which in turn is especially concerned with interference with the due administration of justice and the legal process which invariably extends to the right of an accused to a fair trial.

[45] The rule on sub judice therefore seeks to safeguard the sanctity of court proceedings and ensure a fair trial to an accused in a criminal trial. It is rudimentary that decisions on issues of fact and law should be immune from every irrelevant and extraneous consideration. Decisions should be on the basis of evidence produced in court, and nothing else.

[46] As such, publications and discussions cannot extend to pre-judging cases and encroaching into how certain issues already pending before the court ought to be addressed or decided by the court because that would prejudice the outcome of the proceedings and may constitute criminal contempt in the sense of such statements and publications presenting a real and substantial risk of interference with the legal process and the due administration of justice.

[47] A review of the relevant jurisprudence and literature suggests that the restrictions associated with the concept of sub judice are designed to deal with three not unrelated key considerations. First, to prevent persons involved in the proceedings such as witnesses and jurors from being influenced by the prejudicial publication; secondly to avoid prejudgment of court decisions; and thirdly, to stop others from usurping the judicial functions of the courts.

[69]  I should add for emphasis that jury trials have also been abolished for criminal cases in this country. I would not go so far as saying that sub judice has no application in Malaysia. I think that is quite misconceived. However, the absence of jury trials does principally mean that the scope for the application of the sub judice rule is decidedly more circumscribed in the Malaysian justice system.”[5] (emphasis mine)

On appeal, the Court of Appeal dismissed the appeal and affirmed Nazlan J’s decision.[6] On the issue of sub judice, Zabariah Yusof JCA (later FCJ) remarked that the Court of Appeal was “…  in agreement with the learned trial judge that the sub judice rule applies in this country despite the absence of jury trials nowadays.”[7]

DSNR subsequently appealed to the Federal Court. A seven-judge bench unanimously dismissed the appeal and affirmed the decision of the Court of Appeal.[8]

The Federal Court, in its written grounds, appeared to acknowledge the existence and application of the principle of sub judice in Malaysia:

“Would the refusal of the pre-emptive gag order result in the deprivation of the appellant’s right to fair trial? We think not. In the circumstances he still has recourse to the laws of defamation. It is also open for him to bring committal proceedings for contempt of court in the event any party offends the rule against sub judice. Indeed the courts are well-equipped to safeguard the appellant’s right to a fair trial even without resort to the grant of a pre-emptive gag order.”[9] (emphasis mine)

In light of the above, it appears that the principle of sub judice continues to apply in Malaysia albeit with a more circumscribed scope of application. This will be the position until and unless the matter is revisited by a subsequent decision of the Federal Court.