Wednesday, March 18, 2009

Chilling Out With Karpal Singh

Distilling it to its essence, Karpal Singh is being prosecuted for stating a legal opinion and for indicating an intention to seek remedy from a court for his clients.

I was in court yesterday and had the benefit of hearing the charge read out to him. The charge of sedition is in respect of certain statements made during a press conference on 12th February 2009, held just after the Perak controversy erupted. These statements included the following excerpts reproduced by Malaysiakini:

"The allegedly seditious statement read out this morning was from a partial transcript of a press conference held at the law firm, during which Karpal had said Sultan Azlan Shah could be taken to court in his official capacity for authorising the removal of Pakatan Rakyat Perak Menteri Besar Mohd Nizar Jamaluddin.

Based on the underlined parts of the transcript, Karpal is alleged to have said: ‘With that ruling of the federal court which has stood the test of time for 32 years, beyond a pale of a doubt, the Sultan of Perak has contravened Article 16(6) of the constitution of the state of Perak.

‘In my view, until such time the assembly has invoked the provision of Article 33(1), both Mohd Osman Jailu and Jamaludin Mohd Radzi remained PKR assemblymen, together with Jelapang assemblywoman Hee Yit Foong remaining with the DAP until her resignation letter was subjected to determination by the assembly pursuant to Article 33(1), thereby causing the Pakatan Rakyat to have 31 members in the assembly of 60 members.

It cannot therefore be said that the Sultan of Perak acted intra vires (when) in fact (he) acted ultra vires Article 16(6) when he determined that Menteri Besar (Mohd) Nizar Jamaludin had ceased to command the confidence of the majority of the members of the legislative assembly and was therefore required to tender resignation of the executive council over which he presided including his own resignation.

‘Clearly the Sultan of Perak cannot invoke his powers under Article 16(1) which states [His Royal Highness shall appoint an Executive Council] to appoint a Barisan Nasional executive council with a new menteri besar and a new government. The government of Menteri Besar Nizar Jamaludin still had constitutional supremacy and legitimacy. The actions of the Sultan of Perak are clearly premature.’

These statements give a sense of the nature of what Karpal said and of what the senior lawyer was trying to communicate. It would not be unreasonable to say that the nature of his observations was similar to that of the numerous opinions on the issue that were published at the time.

It is true that Karpal did go on to speak about the remedies that Nizar could see and explained that these could and would be procured by way of an action againt His Highness, Sultan Azlan Shah. Karpal however explained why this was so and pointed to precedent in the course of his explaining his position.

Looking at this in the objective and unemotional way that one assumes the authorities did, it seems that the State will no longer tolerate any expression of opinion concerning the Rulers, and presumably the other matters with which the offence of sedition is concerned. In this regard, section 3(1) of the Sedition Act defines a “seditious tendency” as a tendency:

(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;

(b) to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established;

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;

(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State;

(e) to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia; or

(f) to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution.

The impact of the decision to prosecute is yet to be fully understood, in part because the charge did not explain the seditious tendency that is the foundation of the charge. It does however appear that the prosecution case is founded on the statements having excited disaffection against His Highness, the Sultan or having questioned a matter of prerogative. Much has been said about the decision of the Sultan having been made pursuant to prerogative discretion.

How this will be reconciled with the proviso in section 3(2) is however not clear. This proviso reads as follows:

(2) Notwithstanding anything in subsection (1) an act, speech, words, publication or other things shall not be deemed to be seditious by reason only that it has a tendency -

(a) to show that any Ruler has been misled or mistaken in any of his measures;

(b) to point out errors or defects in any Government or constitution as by law established (except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in subsection (1)(f) otherwise than in relation to the implementation of any provision relating thereto) or in legislation or in the administration of justice with a view to the remedying of the errors or defects;

(c) except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in subsection (1)(f) -

(i) to persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Government as by law established; or

(ii) to point out, with a view to their removal, any matters producing or having a tendency to produce feelings of illwill and enmity between different races or classes of the population of the Federation,

if the act, speech, words, publication or other thing has not otherwise in fact a seditious tendency.

I recognize that the State has a duty to ensure the freedom to express is not abused. The right of the State to intervene is however limited to where intervention, and this must be by way of federal law, is necessary in the interests of democracy. Where this is the case, the extent of the intervention must be proportional to the threat that is sought to be dealt with. What this means is that the State cannot erect a complete barrier to expression, a state of affairs that the legislature recognized in enacting the proviso in section 3(2). Expression on sensitive issues is essential in certain circumstances.

The prosecution does not appear to have an easy case on its hands. It must show that Karpal's statements did disclose a seditious tendency and, if so, did not fall within the ambit of the proviso. From comments made by Karpal that have been carried by the media, it appears that he is not too worried in view of the way the sections are to be understood and applied. Seen from this perspective, it may be premature to say that the freedom of expression has been curtailed; a court is yet to make a decision on the subject.

Having said that, the decision to prosecute Karpal will undoubtedly have a chilling effect on free speech. Many will think that if Karpal could be prosecuted for stating a legal opinion, then it is possible that others may be charged for less. Against a backdrop of other individuals being charged for comments left on internet site, this would not be an unreasonable conclusion.

MIS

6 comments:

R.Prem Kumar said...

The Govt of the day has chosen to pit its wits against the Lion. I doubt if the Lion didn't see it coming. I believe that when he made a press statement from his office, he was laying down the terms on the turf, so to speak. Foolishly, as usual, the legal nitpicks fell for it like a lame lamb led to the slaughter. If they had incured the opinion of His Royal Highness, they would have been imformed that it was not the matter in context, that the other 'offenders' were charged for lesse majeste. Here is a charge under the Sedition Act, largely and quite untimely at that, evoked for political gain. Another nail in the coffin for Barisan Najib.

Bobby said...

As much as BN would want to hide the fact, it remains that actions taken against the father and son are obvious "punishments" for the incidents in Parliament, whilst using it to try to "redeem" UMNO's (and the Youth Wing) honor. They will also use the actions as a political tool for the upcoming election to deceive their members that "justice" has been done.
Sorry, BN, the people are no longer "stupid" and we see with our eyes open wide what treachery you are attempting.
This makes us hate BN even more.

Old Fart said...

I have become such a sceptic that I am inclined to believe taht if they want Karpal out then he will be out.

Sorry, but who gives a shit for all those wise and for all I care, correct, arguments of yours? Who cares for its validity and the precedents supporting it? Do you have an honourable judiciary out there which has independence and can exercise such independence? Sorry, but even the Chief justice does not seem to think that independence is an important ingredient for the judiciary to begin to gain any kind of respect.

Its quite simple really, everythign and all the volumes that has been, can be and will be written and said about this case, Karpal is going in. Why all this charade, I really don't know!!

Just hope that this country does not become one that qualifies for a Madagascar solution!

Pratamad said...

Your objective and unemotional analysis on the matter strengthens the truth: there is no basis to prosecute Karpal.

When you wrote "Looking at this in the objective and unemotional way that one assumes the authorities did...", no, I am sure you are too far off in such assumption.

This prosecution is clearly part of the much bigger plot to enthrone Najib. Starting from Perak, then RM60 billion mini-budget, Karpal and Gobind, now Mohd Ali Rustam, leading to the finale next week. You could have saved yourself the effort and time in writing this analysis, but it does help to strengthen what is already commonly known - the Najib enthronement plot.

Tommy Peters said...

I’m with Pratamad. MIS is indeed stoic and unemotional. Only details differ with his ‘brother’ but he and Karpal are consistent with the ‘principle of damage’ devised by a 19th century philosopher, who argued that no person should suffer as a result of someone else’s exercise of freedom.

Two decades ago, Karpal responded to a Member of Parliament who willed Malaysia an Islamic state. He applied the ‘principle of damage’ then, as he does now. In the Perak affair, he stated a cold fact and rendered a blunt opinion.

The issue is not ‘consistency’ but rather a ‘formality’ in his thought process, the way a lawyer is trained to think. As much as he is a politician, he does not discern the concept of power. He is focused on the vertical relationship between the individual and government rather than the horizontal power-spread perpetrated by his partners.

He relates party hopping to usurpation of an individual’s freedom in favour of the usurper, where desire for power trumps fidelity, where a vile practice trumps a sound principle.

Anonymous said...

OBSERVER FROM TEMASEK,

I agree whole heartedly to the article.. However, if an outsider (non Malaysian) is allowed to express an opinion....

Both Karpal Singh and Lim Kit Siang should step down... Its awful to see both fathers and sons in Parliament... Its a case of JUSTICE MUST BE SEEN TO BE DONE...

Of course, there are similar awful scene in Temasek too...