In jurisdictions with jury trials, it is feared that members of the jury who are laymen may not be able to distinguish between what are relevant facts to the case and what are not. What is hearsay and what is not. And what is the applicable law. Even with the help of court's directions. They may be easily influenced by what they read or hear.
In Bolehland, jury trials have long been a thing of the past.
A judge is supposed to be a different kettle of fish altogether, so to speak. He is supposed to be learned in law, one who is able to distinguish between what are relevant facts and what are not. What is hearsay and what is not. And apply the relevant facts of the case to the law and act impartially in coming to a verdict.
To cut to the chase, a court gag order is ultimately to ensure that the trail judge is not influenced by what is said by other people (to not pre-judge, so to speak) and to decide according to the relevant facts of the case and the applicable law or laws and to afford the accused a fair trial.
Now, here is the contradiction. If a judge is supposed to be all those things, a gag order undermines the very assumptions and makes a mockery of impartiality the bedrock upon which the judiciary is supposed to be anchored. It is understandable where the jury is concerned.
Does a gag order apply to the accused himself? In court, when he claims trial, he is essentially asserting that he is innocent. That can be accepted.
But outside the court when the accused continues to claim that he is innocent and lays out facts that he believes proves his innocence or claims that he had been set up or the charge is without basis for being politically motivated, is he in contempt of the gag order himself?
Why should it be assumed that the trial judge can be influenced by what people say and not that of what the accused says?
In this cyber age, everyone (including the trial judge) has instant access to everything and anything that is said or written anywhere in the world. How is a gag order to be enforced?
Is it even desirable? After all, there is this restraint called subjudice.
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Thursday, July 5, 2018
What Is A Gag Order Of The Court And Does It Make Sense?
Posted by ordinary malaysian at Thursday, July 05, 2018 Labels: What Is A Gag Order Of The Court And Does It Make Sense?