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

The Cost Of Winning

The Cost Of Winning

One cannot be faulted for thinking that those who claim the right to lead us understand that the system of constitutional democracy put in place by the Federal and State Constitutions circumscribes the authority and power of the Yang diPertuan Agong and their majesties the Malay Rulers.

They surely appreciate that this is particulars so in matters of governance where even if a royal discretion or prerogative is involved, such as is invoked where a Mentri Besar is appointed, such discretion is guided by constitutional prerequisites and that the process of checks and balances must necessarily inform the exercise of such discretion.

An aspect of this process is the taking of legal challenge against the Ruler concerned. The constitutional crisis’ in East Malaysia in 1966 and 1994 saw challenges against the Governors of Sarawak and Sabah respectively, for instance. The constitutional framework makes no distinction between a Sultan or Raja and a Governor where the exercise of such discretions is concerned. Both categories of personages are understood in law to be exercising constitutionally delineated discretion. Such exercises of power are open to being scrutinized by the courts of this country.

It is for that reason that it is said that the doctrine of separation of powers, so crucial to efficacious functioning of democracy, safeguards citizens from autocratic action on the part of any organ of this country. This is the bedrock that gives foundation to the sacred principle that no person is above the law.

I believe that this notion of guided discretion prompted the Prime Minister to say last March that the appointment of Datuk Ahmad Said as Menteri Besar by the Regent of Trengganu was unconstitutional. It is also a belief that the Regent had overstepped the constitutional limits of His Highness’ discretion that prompted UMNO assemblymen as well as UMNO agencies to protest the appointment and to stand by their preferred candidate, Datuk Seri Idris Jusoh. A similar situation in Perlis led to a well-publicized crisis within UMNO at around the same time.

In these incidents, and others like them, political parties and individuals had for their own reasons voiced their disagreement with the decision of a Ruler in the belief that the Ruler erred in going beyond what was legally permissible. There was no legal prohibition to them doing so, a state of affairs that remains unchanged. Such action cannot be criminalized for being seditious as the voicing of opinions aimed at showing that a Ruler had been mistaken is allowed. All leaders are capable of making mistakes and being able say that they have done so is a necessary part of democratic forms of government.

To say that such action amounts to treason is wholly incredible. Treason requires an intention to wage war, to cause bodily harm or death or to cause the deposing of a Ruler. Saying that the Ruler is wrong may be impolite or offensive but it can by no stretch of the imagination amount to treason, nor has it ever been suggested to amount to such.

Until now it would seem.

Mr Karpal Singh and his Pakatan Rakyat associates are in the line of fire and ironically, UMNO and its agencies have put them there. The charge: that they have committed treason and sedition in having publicly taken the position that the Sultan of Perak erred in having decided to allow the Barisan Nasional to form a government in Perak.

How what it is Mr Karpal and associates have said and done amounts to treason or sedition eludes understanding, just as how it differs in principle from what was done in Trengganu or Perlis last March. In as much some may have disagreed with those who protested the decisions of the Rulers in those States, they were entitled not only to their views but also to express those views. Their right to do so is a cornerstone of a system founded on the Rule of Law, one that Tun Mahathir relied on to strip away royal immunity when he was Prime Minister.

It is possible to infer from the manifest lack of basis for the fiery denunciations that behind them lurk questionable political objectives. The imminent UMNO assembly is more probably than not a factor that has shaped the way in which the recent “win” in Perak has been approached since.

The posturing and rhetoric is further so threatening in nature that it is not unreasonable to infer that a campaign of intimidation is underway. Its objective is self-evidently the communicating of a message to those inclined to challenge the legal validity of the appointment of the new Mentri Besar: that they do so at their own peril. Such conduct could fairly be characterized as being intended to subvert the due process of law. If so, this is a punishable contempt of court.

More worryingly, such conduct incites. Too often, political leaders get so lost in their politics to the extent that they fail to see that their rallying cries potentially have a less desirable kind of influence. In all societies there skulk individuals who take it upon themselves to force through a conclusion that they believe their community requires in supreme acts of deliverance. All they need is to receive the right message. Our leaders warn us about playing with fire yet they forget sometimes that it is they who ignite sentiments with potentially devastating consequences.

The situation in Perak has caused anger and pain. It may be that the only way in which the chapter can be closed is through a decision of the courts. For many, the decision itself may be less important than the process. An airing of grievances, such as a court hearing will allow for, is more often than not essential to the achieving of reconciliation. Resolution of this nature can only be in the interests of the state and its government, whoever forms it.

Though the Barisan Nasional may have won the day in securing the right to govern, it must ask at what cost to itself and, more importantly, to the rakyat. In this case, the winner does not take all.

(Malay Mail; 10th February 2009)

MIS

Karpal Singh: 'Disaffection' Not An UMNO State Of Mind

Accusations of sedition are being hurled around as if it is going out of fashion.

I think the offence of sedition in itself ridiculous. It is a vestige of colonialism that was aimed at only one thing: silencing of free expression to protect vested interest. I have decried recourse to the Sedition Act and have consistently advised against filing police reports for sedition. It does not matter who says what, be they from the Barisan Nasional, its component parties or those that make up the Pakatan Rakyat; if statements are found to be offensive, there is ample room in the public space to take it up there without having to criminalise expression. God knows, there are more important things for the police to be focusing on.

The case of Mr Karpal Singh illustrates this. Rightly or wrongly, he expressed a view concerning the position taken by His Royal Highness the Sultan of Perak. His view concerned the validity of the legal position taken by the Sultan. If Mr Karpal Singh is right, then the Sultan, respectfully, erred in issuing a show cause to the Menteri Besar of Perak in the way that was done. If Mr Karpal Singh was wrong, then the Sultan was correct.

Where is the sedition in this? I cannot see it. If there are those who disagree with his view, let them state their position and then let all involved agree to disagree.

It is not sedition to voice an opinion. It is only where the opinion is stated in a way that gives rise to a ‘seditious tendency’ within the meaning of the Sedition Act that the opinion could be arguably characterised as being seditious. The Sedition Act sets out six heads of a seditious tendency as follows:

1. to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;
2. 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;
3. to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;
4. 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;
5. to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia; or
6. 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.
   

Looking at the facts of the scenario at hand, it would appear that those who accuse Mr Karpal Singh of sedition take refuge in limbs (1) or (4). Mr Karpal Singh has clarified that he did not seek to question the prerogative of the Sultan, such as it was, and contends that in his view the Sultan was not exercising prerogative in the circumstances.

It is significant that at the heart of both limbs (1) and (4) is a requirement of, at the very least, discontent or disaffection. To establish this is no easy task. It is not enough to merely point to the words giving rise to a tendency towards, putting it simply, dissatisfaction. It is necessary to establish that the potential dissatisfaction would be directed at the institution of the Sultan and would be of such a widespread nature that the institution itself would be in danger.

As was observed by the High Court (PP v Param Coomarswamy, 1986):

“"Disaffection" means disloyalty, enemity and hostility against Authority. In the same way, "discontent" means dissatisfaction against Authority. Therefore, "to raise discontent or disaffection" among the people means to create discontent or disaffection among the people against Authority. Consequently, the assertion of a grievance or complaint which tends to create discontent must be directed at Authority for it to be seditious.”

Looking on at the enthusiastic show-boating by certain UMNO quarters, I am hard pressed to conclude that such expressions as we have heard would amount to a dissatisfaction, let alone such a level of dissatisfaction.

Quite aside from that, it is significant that thus far no one, including the Attorney General, has pointed to section 3(2)(a), Sedition Act which plainly provides:

“...an act, speech, words, publication or other things shall not be deemed to be seditious by reason only that it has a tendency to show that any Ruler has been misled or mistaken in any of his measures;”

Is that not what Mr Karpal Singh was attempting to do? An inference to the contrary is something which, try as I might, I cannot draw from the circumstances.

UMNO must realize the glass house it is in. Judged by the criteria forming the basis of its position on the issue of Mr Karpal Singh having committed sedition, much of what was said in and around the appointments of the Menteri Besars of Perlis and Trengganu could similarly be said to be seditious. But then, I wonder whether this even matters. The political expediency of the very public and highly sensationalised accusations appears to outweigh all other considerations.

MIS

The Methodology Of Fear

This evening, Haris Ibrahim was taken away from Dataran Merdeka by the police. He was there to participate in the candle-light vigil for Raja Petra.

He has since been released, apparently without any intention on the part of the police to take the matter any further. I spoke to him a short while ago and he was his usual jocular self, musing whether he could say that he had faced an arrest when it appeared instead that he had been harassed.

In the period between when I was first told by Tony Yew of Haris being taken away to the point where I managed to speak to him and find out firsthand what is that had occurred and what would, or would not, be happening, a range of thoughts crossed my mind. Being Malaysian and having lived in this country for the better part of my life, these thoughts, not unusually, largely centered on the possibility of his being prosecuted for, perhaps, sedition or, worse still, a detention under the ISA.

Later, after I was informed that he had been released, I went back to my reactions during that period. And I got angry.

At the fact that thoughts like that are the norm in this society. At the fact that the administration had nurtured an environment that keeps us in a constant state of tension and anxiety, so much so that many of us do not even register these feelings any more. At the fact that the administration felt that it had the right to do so.

Why is it that those of us who believe in a better Malaysia should live our lives in the expectation of reprisal. I am not alone in this. After I was told about Haris’ arrest (a flu had kept me home), I called around and, unsurprisingly, everyone I spoke to had the same reaction. The same questions came to mind. Sedition? ISA? Was he going to be ok? And they came to mind because Haris speaks out, regularly and loudly.

Paranoia? Perhaps a little, but then, that’s part of the wider strategy, an element in the methodology of fear by which those in authority keep the rest of us in check. Remember that the next time the Home Minister asserts the continued need for the ISA, remember that he is defending a means of fear-mongering as lethal as it is a means of suppression.

And remember that the only interests that require protection through suppression and fear are vested interests.

MIS

Free Raja Petra

"I am happy. We bloggers have declared war on the government. We are not scared of the government. The government should be scared of us".

Raja Petra

As I stepped out of my home on the morning of the 9th of March, it felt like I had been holding my breath for a lifetime and there I was, suddenly, drawing breath. Perhaps it was the adrenaline, still surging through my veins, the few hours of sleep unable to extinguish the exultation of victory.

And it had been a victory.

It was not just about the fact that the Barisan had been given the trouncing it rightfully deserved. It was also, perhaps more importantly so, about the many personal stories, the sacrifices, of those who had helped change the course of destiny in their own ways, big and small.

We had been involved in a war without even knowing it. Two wars. The first, a war on democracy waged by those who saw only the value of their own empire, to whom the language of democracy was merely a useful means by which to distract from the glint of the weapons as they came hurtling down at us. The arbitrary detentions, the brutality, the perversion of justice, the muzzling of free expression and the subversion of the institutions of state kept us in a constant state of shock that left us blind to all that was being taken from us.

There were visionaries however, those who were our compass stars. They showed us, in their own ways, the true north. They showed us that for us to reclaim democracy, we had to go to war for it. They showed us the way into that war, that second war, the war for democracy.

I saw it as thousands marched for free and fair elections. I saw it as thousands marched against marginalisation. I saw it as thousands marched for justice. I saw it as people stood up in defiance, stood up to be counted. I saw it as people said “No More!”.

And I saw it in the campaigns of truth that spread across the blogs.

Raja Petra, like Haris Ibrahim, and many others, were, are, visionaries who have continued to show us the way through courage and tenacity. These patriots, standing up in defence of their motherland, are the mirrors in which we see ourselves and all that we stand for, all that we should be.

March 8th was a decisive victory for all of us. But it was not the only one that we need. We may have won the battle, but it is the war we want to win. Let the deeds of those who have paved the way with their sacrifice become the standards under which we march. For this time, we march to win. This time, we march for Malaysia.

MIS

HINDRAF Rally: 25th November 2007

The National Human Rights Society (HAKAM) is gravely concerned at the refusal by the Government of Malaysia and the Royal Malaysian Police to allow for the intended peaceable assembly of persons supportive of the cause espoused by the Hindhu Rights Action Force (HINDRAF) this Sunday. HAKAM is equally concerned at the measures aimed at preventing HINDRAF from continuing with the intended assembly including the arrest of three of the principal organizers and the procuring of a restraining order at large against all persons intending to assemble in support of the HINDRAF cause.

HAKAM believes that it is the right of every Malaysian to express his or her views in peaceable manner, no matter how unpopular those views may be. The right to assemble peaceably is a right guaranteed under the Federal Constitution. Though the Government and the Police are charged with the responsibility of maintaining public order, they are equally responsible for ensuring that citizens are free to express themselves. Peaceable demonstrations are universally recognized as legitimate means of expression. There is nothing to suggest that the HINDRAF assembly is intended to be anything other than a peaceable demonstration.

If the Government or the Police are concerned that there are elements that may lead to public disorder, then it is incumbent upon the Police to identify those elements and protect those who wish to assemble peaceably from them. Preventing HINDRAF and its supporters from assembling would only facilitate the purpose of those who wish to impede HINDRAF and its supporters. This would not only be unreasonable but would also render illusory the rights of assembly and expression.

In this vein, the preemptive measures should not have been taken. The situation did not warrant the obtaining of a preemptive restraining order.

Further, HAKAM deplores and condemns the invoking of the Sedition Act by the authorities. HAKAM views the Sedition Act as unconstitutional and as an outdated legislation that has no place in the modern progressive society that Malaysia is today. HINDRAF and its supporters have every right to express their dissatisfaction with the state of affairs even where such expression is not necessarily popular. Majority rule does not justify the denial of minority voices. The attempt to deny the minority voice in these circumstances only goes to reinforce belief that in Malaysia it is only the majority voice that matters. This is a belief that is unsupported in fact or law.

HAKAM urges the Police to allow HINDRAF and its supporters to assemble peaceably this Sunday and to protect them from untoward harm. HAKAM further urges the Police to exercise restraint and to not resort to force.

Malik Imtiaz Sarwar
President, HAKAM
24th November 2007