What is sub judice, and is Najib’s apology over the 1MDB fiasco considered sub judice to his corruption trial?
Jailed former Prime Minister Datuk Seri Najib Razak made headline news recently after he released a statement showing regret over the 1Malaysia Development Berhad (1MDB) scandal and how it had affected Malaysians.
In a press conference by his son, Datuk Mohamad Nizar Najib, at the Kuala Lumpur Court Complex on 24 October, he read out his father’s statement, which included how Najib had much reflection over 26 months in prison following his conviction in the SRC International case and how it pained him to know that the 1MDB debacle took place when he was Finance Minister and Finance Minister.
The former Prime Minister then issued an unreserved apology to the Malaysian people. However, Najib reiterated that he wasn’t the mastermind behind the whole fiasco and brought to attention the recent court hearings and convictions of PetroSaudi executives in Switzerland courts, as well as an article by The Edge Malaysia.
In relation to the two, Najib claimed that they proved that he was not 1MDB’s mastermind and that he didn’t collaborate with Jho Low in deceiving 1MDB of its funds. The former Prime Minister further asserted that he was in deep shock after finding the extent of 1MDB’s “wretched and unconscionable shenanigans”. Stressing that he had been punished politically, Najib thus hoped that he wouldn’t be victimised legally as it was clear that he was not the mastermind or collaborated with Jho Low, as revealed by recent events.
Following this statement, many have accused Najib of interfering with his current trial on 1MDB, which would be delivering the verdict just a week after it was released. Specifically, many claimed that the statement is sub judice to his 1MDB corruption trial.
Following this statement, many have accused Najib of interfering with his current trial on 1MDB, which would be delivering the verdict just a week after it was released. Specifically, many claimed that the statement is sub judice to his 1MDB corruption trial.
So, what exactly is sub judice, and did Najib commit it by releasing the statement about 1MDB? Well, join us as we delve into the matter below.
What is sub judice?
A Latin term literally meaning “under judicial consideration”, sub judice is a rule which essentially governs what public statements can be made about any ongoing legal proceedings.
In simpler terms, sub judice is the concept of prejudging, whereby if discussions might place improper pressure on the litigants or witnesses, then the courts can intervene and hold such discussion as Sub Judice and, accordingly, contempt of court.
Hence, many believed that Najib had committed sub judice as his statement on 1MDB can be argued to be about his current 1MDB corruption trial and that it could influence the litigants or witnesses in the trial.
For context, Najib is facing a whopping 25 charges in his 1MDB corruption trial: 21 under Section 4(1)(a) of the Anti-Money Laundering, Anti-Terrorism Financing Act 2001 involving funds of RM4.16 billion and 4 charges under Section 23 of the Malaysian Anti-Corruption Commission Act 2009 involving funds of RM2.27 billion.
Who has the authority to decide whether something is sub judice?
Given that sub judice usually affects juries and that Malaysia has long abolished the jury system in trials, many Malaysian 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.
In a rather ironic twist of fate, the prosecution during Najib’s hearing for his gag order application for the SRC International trial actually put forth this same argument that the concept of sub judice doesn’t exist in our country. In the gag order application, Najib’s council claimed that whatever news reports made in connection to the case could amount to sub judice.
However, Justice Mohd Nazlan Mohd Ghazali dismissed the gag order application for various reasons. His judgement in Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor [2019] 8 MLJ 624 is as follows:
“[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.”
Following Najib’s appeals on the decision, both the Court of Appeal and Federal Court affirmed Justice Nazlan’s judgement and dismissed the appeals. 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 the concept of sub judice is still applicable in Malaysia but in a more limited application. Regardless, what amounts to sub judice must be decided by the Courts.
Therefore, it is up to the Courts to determine whether Najib’s statement is sub judice to his trial, and only if the prosecution filed a proceeding for contempt of court. As of the time of writing, no proceeding had been filed by the prosecution in the 1MDB corruption trial.
Moving forward, all eyes will be on the Kuala Lumpur High Court for the verdict on Najib’s 1MDB trial. In the meantime, if you’re interested in more insights on the Malaysian legal system, follow us on
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.
