Criminal Defamation Case: Court Issues Gag Order Against Che’gu Bard

KUALA LUMPUR: The High Court here today issued a gag order against Badrul Hisham Shaharin, also known as Che’gu Bard, a member of the Bersatu Information Bureau Committee, prohibiting him from making any statements or comments regarding the criminal defamation case he is facing.

Judge K. Muniandy made this decision after granting the prosecution’s application to review the Sessions Court’s decision that had previously rejected the gag order application.

“This court finds that the order rejected by the Sessions Court Judge is unwarranted, and, pursuant to Section 325(1) of the Criminal Procedure Code (CPC), this court exercises its review jurisdiction, allowing the application for criminal review, and, under Section 316(c) CPC, sets aside the Sessions Court’s decision.

“According to this court’s existing jurisdiction, the gag order is now imposed in addition to the bail conditions granted to the respondent (accused) pending trial,” he said.

In his judgment, Judge Muniandy stated that it would be better for the trial judge to hear the case according to the rules, laws, and procedures without being influenced by any statements, comments, or criticisms that might be directed at the case as a whole.

“The legal principle of the sanctity of the trial must be preserved under all circumstances. Given the significance of the charge under Section 500 read with Section 499 of the Penal Code, the rationale is to prevent any allegations that would harm the good name of the Yang di-Pertuan Agong,” the judge said.

The judge added that unlike in civil cases, where the aggrieved party is in a position to seek an injunction to prevent and restrain the offender from repeating the defamatory statements, such recourse is not available to the prosecution in criminal proceedings. Once the matter reaches the court, the court takes over the management of the case to ensure that justice is not compromised for both the prosecution and the accused.

“Handling contempt proceedings or similar issues is something that needs to be addressed as the need arises. Therefore, until then, the freshness of the issues to be presented at trial and the sanctity of the trial need to be preserved by the court,” he said.
Judge Muniandy made this decision regarding the prosecution’s application to review the Sessions Court’s decision, which did not allow the gag order for Badrul Hisham to refrain from making any comments or statements regarding the charge of making defamatory statements against the Yang di-Pertuan Agong.

Meanwhile, in a separate High Court, Judge Datuk Azhar Abdul Hamid rejected the prosecution’s application to review the Sessions Court’s decision that did not allow the gag order for Badrul Hisham to refrain from making any comments or statements regarding the charge of publishing seditious content on his Facebook page.

Judge Azhar said the court agreed with the respondent’s (Badrul Hisham) argument that there was no strong reason for the court to change the order given by the Sessions Court judge when the application was made in that court.

“Therefore, the prosecution’s application for a gag order against the respondent is rejected. However, the respondent is reminded that the freedom of speech granted under Article 10 of the Federal Constitution has its limits and is not absolute,” the judge said.
On April 29, Badrul Hisham, 45, was charged with publishing seditious content on his Facebook page at Taman Bukit Cheras here at 12:15 p.m. on April 6.

The charge was filed under Paragraph 4(1)(c) of the Sedition Act 1948, punishable under Subsection 4(1) of the same Act, which carries a maximum fine of RM5,000 or imprisonment not exceeding three years or both, upon conviction.

Badrul Hisham was also charged with making defamatory statements, with reason to believe that the defamatory statements would harm the reputation of the Yang di-Pertuan Agong.

This offense is alleged to have been committed at the office of the Datuk Pengelola Bijaya Diraja, Istana Negara, here at 6 p.m. on January 22, under Section 500 of the Penal Code, which carries a maximum imprisonment of two years or a fine or both upon conviction.

The court allowed Badrul Hisham to be released on bail of RM10,000 with one surety for each charge and rejected the prosecution’s application for a gag order.

-Agency