Can the Govt remove Netflix's 1MDB documentary for Sub Judice as requested by Najib's lawyer?

Beyond the recent Royal Pardon received by former Prime Minister Datuk Seri Najib Razak which halved his imprisonment from 12 years to 6 years and reduced the fine from RM210 million to RM50 million for the SRC International case, a complaint raised by his lead defence lawyer Tan Sri Muhammad Shafee Abdullah during the ongoing 1MDB trial have made headlines in Malaysia. This was after Shafee sought for “Man on the Run”, a Netflix documentary on 1MDB to be removed from the platform because its contents are “extremely Sub Judice and contemptions”.

According to a report by Malay Mail, Shafee told the High Court on 8 January that the programme has about 160 excerpts that are contemptuous and Sub Judice to the ongoing trial. Deputy Public Prosecutor (DPP) Ahmad Akram Gharib then suggested that Shafee should write to the relevant authorities such as the Malaysian Communications and Multimedia Commission (MCMC) to alert them about the situation. He has since done so and also sent a copy of those communications to the Attorney-General.

In the ensuing week, many public figures voiced their opinion on the matter, with Prime Minister Datuk Seri Anwar Ibrahim being quoted by FMT as saying that the authorities will be considering Shafee’s request. Furthermore, BERNAMA reported that Communications Minister Fahmi Fadzil revealed that the government has yet to make any decision on the matter, though he will be meeting with MCMC to scrutinise the legal aspects before making any further announcements.

However, does the federal government actually have the legal authority to compel Netflix to remove a documentary on its platform in Malaysia? Furthermore, what is Sub Judice and does the Netflix documentary amount to such a consideration?

Well, join us as we delve into the relevant laws and conventions below

Does the government have the power to remove the Netflix documentary?

This is a rather complicated issue as Netflix is not a conventional TV broadcasting platform but rather an international online streaming service known as the Over-The-Top (OTT) platform. Hence, while Netflix and others of its ilk such as Disney+ Hotstar and Amazon Prime are still under the purview of the Malaysian Communications and Multimedia Commission (MCMC) through its powers under the Communications and Multimedia Act 1998, they are exempted from the MCMC licensing requirements. Furthermore, as of the time of writing, the Malaysian government has yet to implement new provisions under the aforementioned act to impose licensing requirements for OTT platforms.

Besides that, these OTT platforms are also not subject to the Film Censorship Act 2022 and Film Censorship Guidelines, hence why movies that are banned from screening in Malaysian theatres such as Marvel’s Thor: Love and Thunder are readily available to view in our country through Disney+ Hotstar. With that being said, the government can’t use the Film Censorship Act 2022 to censor the “Man on the Run” documentary because the provision is not applicable to Netflix.

What is applicable to Netflix is MCMC’s content standard as outlined by the Malaysian

Communications and Multimedia Content Code 2022, co-regulated by the Malaysian Communications and Multimedia Content Forum as per Sections 212 and 213 of the Communications and Multimedia Act 1988 .

This is also in line with Section 211 of the Communications and Multimedia Act 1998 below:

Based on the Content Code, the most relevant code to the Netflix documentary is Article 7.1 regarding False Content below:

However, should the government take action requesting Netflix to remove the “Man on the Run” documentary for alleged false content, it can be argued that such an action is internet censorship. This is expressly against Section 3(3) of the Communications and Multimedia Act 1988 below:

The above provision clearly prescribes that nothing in the Act can be construed as permitting the censorship of the Internet, which is basically what removing the “Man on the Run” from Netflix would amount to.

So, the authorities are left in a bit of a pickle because as we’ve mentioned previously, there are still no new provisions to impose licensing requirements for OTT platforms, which means Netflix are not subjected to the Communications and Multimedia Act 1998. Therefore, it is up to the lawmakers to introduce a provision dealing specifically with this matter and as of now, should the government request Netflix to remove the documentary, the action can be challenged in court.

What is Sub Judice and who decides on it?

Another thing of note regarding the request is Shafee’s claim for Sub Judice. A Latin term that literally means “under judicial consideration”, the Sub Judice rule essentially governs what public statements can be made about any ongoing legal proceedings. Basically, Sub Judice is the concept of prejudging, whereby if discussions might place improper pressure on the litigants or on witnesses, then the courts can intervene and hold such discussion as Sub Judice and accordingly, contempt of court.

Applied to the subject matter at hand, Shafee is claiming that the “Man on the Run” documentary is Sub Judice in that it is prejudging the ongoing 1MDB trial as some interviewee’s remarks already painted Najib Razak as being guilty. However, does the Netflix documentary actually amount to Sub Judice and who has the authority to decide on this?

Given that Malaysia has long abolished the jury system in trials, many legal figures have claimed that the principle of Sub Judice is no longer relevant. One of whom is former Attorney-General Tan Sri Tommy Thomas who according to a report by The Star asserted that he had never accepted the principle and said that Sub Judice doesn’t exist in our country because juries don’t exist.

Ironically, this argument was put forth by the prosecution during Najib’s hearing for his gag order application for the SRC International trial in which his counsel claimed that the issue of Sub Judice arose. Justice Mohd Nazlan Mohd Ghazali dismissed the gag order application for various reasons. His judgment in Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor [2019] 8 MLJ 624 reads:

“[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.”

Afterwards, both the Court of Appeal and Federal Court dismissed Najib’s appeal, with the Federal Court in its written judgement in Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor [2019] 4 MLJ 281 asserted:

“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.”

Based on the Federal Court’s judgement above, it appears that Sub Judice is still applicable in Malaysia but in a more limited application. Regardless, Sub Judice must be decided by the Courts and not by the government through such extraordinary requests as made by Shafee.

Moving forward, it would be interesting to see how things unfold and whether the court would deem the documentary as being Sub Judice to the trial. One thing’s for certain though, should the government through its agencies do take down the documentary, it can be challenged in court and given the nature of the trial, an unnecessary bad press for the administration.

For more insights into the Malaysian legal system such as this, do make sure to follow us on Facebook and Instagram or visit our official website. You can also read our articles on the popular Malaysian news aggregator app Newswav here.