Censoring with sub judice

WHEN the police banned any mention of Altantuya Shaariibuu or the Barisan Nasional takeover of Perak from by-election ceramah recently, sub judice was used to justify the order.

By Zedeck Siew (The Nut Graph)

"Both cases are still in court. As such, talking about them or bringing them up in crowds can be sub judice or contempt of court," declared then Home Minister Datuk Seri Syed Hamid Albar.

Indeed, sub judice is often cited when the Malaysian authorities issue a gag order even when a subject matter is of public interest. What is sub judice and are the authorities justified in wielding it to censor public discussion?

Preventing prejudgment

Sub judice is a Latin term. It is legalese that literally means "under judicial consideration".

"The sub judice rule governs what public statements can be made about any ongoing legal proceedings," Malaysian Bar Council secretary George Varughese explains in an e-mail interview.

Underscoring the rule, he says, is the concept of prejudging. "If discussion might place improper pressure on the litigants or on witnesses, then the courts can intervene and hold such discussions as sub judice, and thus in contempt of court," he says.

However, the Malaysian government's interpretation is that once the hearing of a case begins in court, sub judice puts a halt to any public or media discussion of it.

Varughese says this is a misconception. "The sub judice rule does not prohibit fair and accurate reporting of the factual contents of any ongoing proceedings," he says. This means that if certain facts or evidence have already been presented in court, discussion of such facts is fair and legal.

"If it is a matter of public interest, it can be discussed at large, without the fear of being in contempt of court," Varughese adds. "Criticisms can be made and repeated. Fair comment does not prejudice a fair trial."

Jury trials

Bar Council president Ragunath Kesavan describes the current concept of sub judice in the Malaysian context as "subverting a judicial process".

He explains that it is "a creature of the past", a leftover from an era when the outcome of Malaysian court cases was decided by a jury.


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