What Did Karpal Actually Say?

The following is an extract from the judgment of the Court of Appeal in the case of Pendakwa Raya v Karpal Singh A/L Ram Singh  [2012] 4 MLJ 433, CA. The High Court had ruled after the prosecution’s case that there was no case to answer, and acquitted the Tiger of Jelutong.

The Court of Appeal overturned that decision, and said that the statement clearly had a “seditious tendency” within the meanings of sections 3(1)(a), (d) and (f) of the Sedition Act 1948. A few days ago, the same judge has now convicted Karpal of sedition based on the Court of Appeal judgment, with his punishment to be determined soon.

If you want to know more about sedition in Malaysia, you can read Jeyaseelan Anthony’s excellent introduction here.

At the start of the Court of Appeal judgment (which was in Malay), they set out exactly what Karpal had said. Unfortunately, the underlining to show which specific parts were considered objectionable was not reproduced. See if you can spot what is seditious in the following:

[8] Responden telah dituduh di Mahkamah Tinggi dengan satu tuduhan bagi kesalahan menyebut perkataan-perkataan menghasut di bawah seksyen 4(1)(b) Akta 15. Pertuduhan tersebut adalah seperti berikut:

Pertuduhan

Kamu didakwa atas kehendak Pendakwa Raya dan pertuduhan terhadap kamu ialah:

“Bahawa kamu pada 6 Februari 2009 jam antara 12.00 tengahari dan 12.30 petang di Tetuan Karpal Singh & Co yang beralamat No. 67, Jalan Pudu Lama, dalam Daerah Dang Wangi, Wilayah Persekutuan Kuala Lumpur dalam satu sidang akhbar telah menyebut kata-kata menghasut (transkrip ucapan dilampirkan sebagai LAMPIRAN ‘A’ kepada pertuduhan ini dan kata-kata menghasut digariskan); dan oleh yang demikian, kamu telah melakukan satu kesalahan di bawah seksyen 4(1)(b) Akta Hasutan 1948 (Akta 15) dan boleh dihukum di bawah seksyen 4(1) Akta yang sama.”

[9] LAMPIRAN A yang dinyatakan dalam pertuduhan tersebut adalah seperti berikut:

Translation:

[8] The Respondent was accused in the High Court on one count of the offence of uttering seditious words under section 4(1)(b) of Act 15 [the Sedition Act 1948]. The said Charge reads as follows:-

Charge

You are charged by the Public Prosecutor and the charge against you is:

“that you on 6 February 2009 between 12.00 noon and 12.30 p.m. at Messrs Karpal Singyh & Co at No. 67, Jalan Pudu Lama, in the District of Dang Wangi, Federal Territory of Kuala Lumpur at a press conference uttered seditious words (a transcript of the speech is enclosed as Annexure A to this Charge, and the said seditious words are underlined); and therefore you have committed an offence under section 4(1)(b) of the Sedition Act 1948 (Act 15) punishable under section 4(1) of the same Act.

[9] The said Annexure A stated in the said Charge is as follows:-

(Note: The transcript is in a mix of Malay and English, and is reproduced verbatim from the Grounds of Judgment of the Court of Appeal).

The Transcript

TRANSKRIP VIDEO KENYATAAN AKHBAR OLEH YB KARPAL SINGH DI PEJABAT PEGUAM KARPAL SINGH NO. 67. JALAN PUDU LAMA. 50200 KUALA LUMPUR PAPA 6.2.2009 m 12.00 TENGAHARI.

I think I baca statement, yang ada a depan saya sekarang ini, The removal of Perak Menteri Besar, Datuk Sen Haji Nizar bin Jamaluddin, by the Sultan of Perak purportedly pursuant to Article 16 (6) of the Constitution of the State of Perak which is stated there in brackets, is clearly ultra vires the provisions of this article.

In law, the decision of the Sultan of Perak can be questioned in a court of law. As far back as the 12th of May 1977, a strong five men bench of the Federal Court ruled that the decision of the Yang Dipertuan Agong to confirm three detention orders under the emergency (Public Order and prevention on crime) Ordinance, 1969 was amenable to judicial review if it was ultra vires the provisions of the federal constitution. The federal court unanimously ruled, although the orders of the detention had been confirmed by the King, that decision was ultra vires Article 1(5)(1)(b)of the Federal Constitution as that confirmation was made outside and beyond the period of three months stipulated in that article.

With that ruling of the federal court which has stood the test of time for 32 years bevond a pale of a doubt the Sultan of Perak has contravened Article 16 (6) of the Constitutions of the State ofPerak. The Pakatan Rakyat State Government had the mantle of legitimacy it still has. In my view the election commission had through its chairman, Tan Sh Abdul Aziz Mohd Yusof publicly ruled that there was a doubt over the vacancy of the seats of PKR Changkat Jering assemblyman, Mohd Osman Mohd Jailu, and PKR Behrang assemblyman Jamaludin Mohd Razi after the letters submitted by Perak assembly speaker V. Sivakumar in relation to their letters of resignation were conducted or rather contradicted by denials from both these assemblymen. This triggered the provisions of Article 33 (1) which states [if any question arises whether a member of the Legislative assembly has been disqualified for membership, the decision of the assembly shall be taken and shall be final.]

Therefore for the assembly to decide on the status of these 3, of these assemblymen and not the Sultan of Perak who determine that they remain independent assemblymen despite having submitted undated letters of resignation to the Perak Assembly speaker and therefore with their presence at the Istana and their pledge of allegiance to the Barisan Nasional together with DAP Jelapang assemblywoman, Hee Yit Foong, the Pakatan Rakyat government could no longer hold on to office.

In mv view, until such time, the Assembly has invoked the provisions of Article 33 (1) both Mohd Osman Mohd Jailu and Jamaludin Mohd Razi remained PKR assemblymen together with Jelapang assemblywoman Hee Yit Foong. remaining with the DAP until her resignation letter was subjected to determination bv the Assembly pursuant to Article 33 (I) thereby causing the Pakatan Rakvat to have 31 members in the assembly of 60 members. It cannot therefore be said that the Sultan ofPerak acted intra vires in fact acted ultra vires Article 16 (6) when he determined that Menteri Besar. 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 f His Roval Highness shall appoint an Executive Council 7 to appoint a Barisan Nasional Executive Council with a new Menteri Besar and a new government. The Government of a Menteri Besar Dato’ Haii Nizar bin Jamaludin still had constitutional supremacy and legitimacy. The actions of the Sultan of Perak are clearly, premature.

I call upon the Sultan to cease and desist from appointing a new Barisan Nasional Menteri Besar and executive council later this afternoon. This in no way should be construe as a threat to the Sultan but on the other hand a firm reminder to him that he is required to act within the parameters and confines of the sacred constitutional document that is the constitution of the State of Perak which is the supreme law of that state.

The following words of Raja Muda of Perak, Raja Dr. Nazrin Shah, during the pledge of loyalty at the special investiture in conjunction with the silver jubilee celebration of Sultan Azlan Shah as the 34th Sultan of Perak at Istana Iskandan’ah on 3rd February 2009 bear repetition.

Quote, “The ruler, as the head of state and country, needs to be neutral, non-partisan, and free of having personal interest to ensure justice for the people”.

Raja Nazrin also said that the power entrusted by Allah should be discharged with responsibility because he (the Ruler) would be judged in the hereafter. As such he said power must be exercised to implement good practices adding that the Ruler’s nobility and honour, position, and sovereignty do not come automatically.

It is my view that the Pakatan Rakyat Government headed by Nizar Jamaludin should be allowed without any hindrance for any quarter to invoke the provisions of Article 33 (1). It is after this exercise that the intervention of the Sultan of Perak could become if at all necessary.

If the Sultan persists in appointing a Barisan Nasional Executive Council and Menteri Besar, later at 3 pm today, the Pakatan Rakyat will have no alternative but to seek a judicial pronouncement in the interest of the rakyat in Perak. The judicial proceedings will inevitably include the purported new state government. This will, in turn, cause unnecessary apprehension, anxiety and concern which should be averted at all costs.

QUESTIONS AND ANSWERS

Well that is my statement. Are there any question?

(…….inaudible….)

Beyond the powers conferred on him under the Constitution of the State ofPerak. That he had no right that he had no right to dismiss the government rather the State Government of MB Nizar Jamaludin. The lawful Government is still the Government, the Pakatan Rakyat government.

(Question from reporter YB, can you.. (unclear)…)

In fact I’ve stated very clearly that we will sue the Sultan together with the new State Government as defendants if thev persist if they don’t, this afternoon, if what I said is right, and the Sultan is prepared to accept that, then things are perfectly in order. The old government would still be in power.

In fact, over Article 83 or rather 63 of the Constitution of the State of Perak. We give a copies of it. I’ll read what is that. What the Sultan of Perak can do is this under Article 64 and that states. His Royal Highness may refer to the Federal Court for its decision or rather its opinion any question as to the effect of any provision of this constitution which has a reason or appears to his Royal Highness likely to arise and the Federal Court shall pronounce in open court to his opinion on any question so referred to it. In other words, under Article 64 the Sultan can now refer this question and the question would be whether these 3 assemblymen are still members of the assembly as Pakatan Rakyat assembly, assemblymen.

Because if that is so, and I say that is so until such time as the a State of Assembly decides under Article 33 (1) as to whether they are still qualified to sit in the assembly they remain members of the Pakatan Rakyat

(Question from reporter……… YB it’s look like the Barisan Nasional new.. (unclear)… tomorrow….)

Well tomorrow is a holiday, the suit will be filed on Tuesday because Monday is also a holiday. In fact I call upon the Sultan to carefully consider what a he has in fact done. The Sultan has no right to call the 32 members, or assemblymen rather, to the Istana and questioned them one bv one as to where their allegiance lav, because that is not within the confines of a what the Sultan could do. That is the job of the assembly to decide under Article 33 (1). The Sultan cannot usurp the powers of the State Assembly.

In fact, I have cited two cases there, in fact the first case if you all can have a look at it. This is the decision of the 5 member bench of the Federal Court way back in a 1977 May 12. If you look at it, this is what was decided by the Court. Now in this case what has happened was 3 detention orders were confirmed by the Yang DiPertuan Agong. But that confirmation was outside the 3 month period provided for under Article 151 (B) of the Federal Constitution, and this is what the Federal Court a held, its at page 5. It’s marked paragraph 3. Although the note, although the orders of detention in these cases had been confirmed by the King, that decision was ultra vires and could be corrected by the court. So we are saying here that what the Sultan Perak has done is ultra vires the Constitution of the State of Perak and the Court has jurisdiction to a set that right. It’s as simple as that. A very simple constitutional issue.

( Question from reporter Sorry YB, could you explain ultra vires in layman terms ?

Ultra vires a means a is acting beyond, you don’t have the power to act beyond what the, the, the a you know a Constitution provides. Which is only the assembly can decide on whether assemblymen in view of these letters. Even…….. Election Commission said there’s a doubt as to whether the letters were valid. And Article 33 very a clearly states if any question arises with regard to whether an assemblyman’s qualified or not, the decision shall be taken by the assembly. In fact, the a, the a present State Government, the Government which has in fact been dismissed by the Sultan, can convene a meeting even today and I tender Article 33 (1) and determine whether those letters are valid and even assuming the assembly decides that the these 3 are in fact no more a lawfully elected assemblyman then there’s a deadlock. It would mean 28:28. 28 for the Barisan and 28 for the Pakatan Rakyat which means there’s a deadlock, which means then the Sultan of Perak should order a snap election in the State of Perak. He should dissolve the assembly, but he cannot act in the manner he has done.

( Question from reporter Do you think Malaysia is facing a perhaps constitutional crisis ?

Well it’s not Malaysia, the State of Perak is. But this could extend to other states, and we wouldn’t want that kind of position. As I said, there’s a way out, way out. The Sultan can act under Article 64 refer this question to the Federal Court vis-a-vis the facts and circumstances of this case. Whether he could act under Article 16 (6) to dismiss the government of a Nizar Jamaludin. As I keep saying our view is that the Government of Nizar Jamaludin, the Pakatan, State Government still is the valid and lawful one. I’ve tried to make it as clear as I can in the statement I have made. I’m backing up whatever I’m saying by cases, a by the Federal Court and the second case. If I could t.t.t.take it the to you the case of a Fan Yew Teng, this was way back in 1975..if I remember correctly, ya, March 12, 1975..I did this case, in fact. What had happened was the same a constitutional provision came into a, a question, at page 15. Article 53 of the a Federal Constitution states if any question arises whether member of the House in Parliament has become disqualified the decision of the House shall be taken and shall be final. Exactly the same as Article 33 (1) and the court held that a there Fan Yew Teng did not stand disqualified this by way of a conviction. In fact a by-election was called after he was convicted by the High Court. He got an injunction to stop the by-election. The court granted it because it was for the for Parliament to decide whether it’s a result of the conviction he had become disqualified.

(Question from reporter…. YB, so you said that, since now the three have a submitted their resignation to the assembly, so the assembly should have the final say to tell them as they have a mean they are not a valid member of the assembly, so by-election should be held or snap..(unclear)….

Oh…oh..a snap election. The Sultan has got no right to intervene. He can’t, under these circumstances I must say. He has certain rights but those rights do not arise under the a present state of the affairs in the state of Perak.

(Question from reporter…..Do you think the resignation letter is still valid because the date was fill… (unclear)….)

Does not matter, let the assembly decide, let the assembly decide. The Sultan cannot decide. He has no power. We are going by the constitution. Sultan is bound by the constitution of the state of Perak. He’s not immune from being taken to the court. But I’ll make it very clear, I got

That, that in fact, it’s unlawful. That, that whoever has stopped him from excluding his duties is committing an offense under the penal code – obstruction of a public servant in the execution of his duty. I hope whoever is doing it realizes what is being done. In fact, a letter has been sent out by the State Secretary to the Menteri Besar and all the actual members of the Pakatan Rakyat Government that they are required to go to the office and collect their personal effects and no other documents. (Cough) You can’t shut out a Menteri Besar who has been lawfully elected from entering his own office. It’s an abuse of power on the part of whoever did it. And I hope he’s prepared for the consequences, and we must make it very clear that the Pakatan Rakyat is very serious about what is going on in the state of Perak. We don’t want it to spread elsewhere.

(Question from reporter…. What happened will happened to them also…(unclear)..)

Well I’m they are not worried, I don’t think anything will happened elsewhere, but the, the fact remains. We don’t want a precedent like this. You can’t grab power. You must get the power from the people in a constitutional manner. And I’m surprised that the Deputy Prime Minister is in fact a heading the charge in Perak including the Prime Minister himself. What is being done is very high-ended. Unbecoming of a Prime Minister and his Deputy. They got no business in fact to be even there. It’s better for the state assemblymen in UMNO that should take it up with the Sultan. Why, why should the a Sultan even give a audience to the Prime Minister and Deputy Prime Minister. They had no business to be there.

Ada apa-apa soalan lain ?

(Question from reporter….. Is Pakatan going to a launch a huge rally to show the protest… (unclear)…)

Oh. That’s a separate matter. My task is a you know to sort of take it up from a the legal side. They want the law to prevail and we want the constitutional provision to prevail. It’s all wrong to take power on the strengths of crossovers, crossovers a people who are guilty of treachery to the rakyat. In fact, crossing over should be made a criminal offence. It’s cheating the public. It’s a very very serious matter to a cheat out of having been elected on a, on a PKR ticket to crossover or for the matter on DAP ticket to crossover. You got no business to do that. You are not elected on the Barisan Nasional ticket. You go back to the people.

( Question from reporter….YB, does your statement applies to both ruling an opposition party… (unclear)….)

Yes, my statement applies to both. In fact I say Anwar Ibrahim was wrong in having started a campaign to take power on the strengths of crossovers. What he did was not right. What has to be said will be said. You can’t take power, or grab power on the strengths of crossovers.

Likewise, Najib is wrong, so why not, why not amend the Federal Constitution. I’ve been saying that all the time. At the moment the federal court has decided and this was a case coming from Kelantan. Kelantan had an anti-hopping law enacted in 1991, the Federal Court declared that the anti-hopping law was unconstitutional on the ground that it contervened. Article 10of the Federal Constitution which says you have a right to form associations. The right to associate include the right to disassociate, that’s what fhe Federal Court said.

The Federal Court has made a decision. The only way to get around the decision is to amend the Federal Constitution to out law party hopping. I think the people, the country are disgusted with party hopping. And every effort should be made by the elected residents of the people. To amend not only the Federal Constitutions, but all states constitutions to include a anti-hopping law. In fact, anti-hopping law should be made a criminal offence. Whoever does that should be put in prison. Barisan Nasional Government does not have a two-third majority in Parliament at the moment to amend the Federal Constitution. I say now that the DAP will prepare, is prepared rather to give them not 9, they need 9 seats to make up two-third majority. We’ll give them 28. I’ll persuade Anwar Ibrahim and PAS to also support that amendment. At the moment PAS and PKR support party hopping, which is wrong. The DAP does not. Our stand has always been from the time the DAP was a in fact a set up way back in 1966 and it was formed until now our stand is very clear. You cannot cheat the Rakyat. Party hopping is something abhorent, unacceptable, and indefensible.

Any other question ?

Dan dari seai Perlembagaan neaeri Perak. adalah terus terana apa vang ada dimengisvtiharkan oleh Sultan Perak iaitu a Keraiaan Negeri Pakatan Rakvat tidak sah tentang dengan peruntukan Perkara 16 (6) Perlembagaan a Perak. Aoa vang dibuat tidak a boleh dimempertahankan. Adakah tiga ahli Dewan Undangan Negeri Perak aoabila menandatangani satu surat letak iawatan a letak iawatan. adakah itu sah, adalah untuk a Dewan Undangan Negeri Perak membuat keputusan. Tidak ada oihak lain vang ada kuasa untuk a buat demikian. termasuk Sultan Perak.

Apa saya menyatakan tadi ada satu a langkah yang lain yang boleh digunakan iaitu rombakan Perkara 64 Perlembagaan Negeri Perak iaitu Sultan Perak ada kuasa untuk a rujuk satu soalan, soalan mengenai peruntukan dalam a Perlembagaan Negeri Perak dari segi apa yang ada keadaan di negeri itu untuk menentukan sapa ada kuasa. Kuasa dalam tanoan Dewan Undangan Negeri untuk menaisy menaisytiharkan adakah tiaa DUN a ADUN ini. ADUN yang tidak letak jawatan atau sudah letak jawatan. Bukan Sultan Perak untuk memanaail 32 ADUN ke Istana. dan menyoal dia.

Adakah dia masih ahli Dewan Undangan Neaeri bagi a Keadilan atau DAP. Itu bukan kuasa Sultan Perak. itu kuasa negeri. Kerajaan Negeri yana sah. Kerajaan Negeri yang akan di a menaisytiharkan a pada 3 setengah petang ini. tidak sah. Jika itu dibuat. kami akan ruiuk perkara ini ke Mahkamah Tinaai di Ipoh pada hari Selasa depan satu kes akan difailkan. Dalam Kes itu. Sultan Perak akan iadi penentana yang a atau a responden. defendan akan dinamakan sebagai defendan yang pertama dan Kerajaan Negeri baru yang akan dia menaisytiharkan pada pukul 3 setengah petang ini. sebaaai defendan yang kedua. Dan Plaintif a adalah Datuk Seri a Nizar Jamaludin. Dia akan memfailkan kes itu sebagai Menteri Besar yang sah untuk dapat satu a pengisytiharaan daripada mahkamah untuk a memputuskan dia adalah Menteri Besar yang sah dan bukan a Menteri Besar dan exco yang akan di um…bersumpah pada 3 setengah petang ini. Itu adalah dengan ringkas apa yang saya menyatakan dalam bahasa Inggeris tadi. Adakah apa-apa soalan?

( Question from reporter…. You sebagai lawyer on behalf… (unclear)…)

Yes..yes, yes, saya lawyer bagi..Bukan saya sahaja, saya dengan Gobind Singh Deo, Ram Karpal Singh, Sanggit Kaur, Deo dan peguam-peguam lain dalam parti bukan DAP sahaja, tetapi Keadilan dan PAS.

( Question from reporter….Kira-kira jumlah berapa lawyer yang akan file-in next week?

a Itu tidak ditentukan, menentukan, di saat ini.

(Question from reporter… YB, sekarang Sultan Perak desak letak.. jawatan.. Datuk Sen.. (unclear)….)

Tidak ada kuasa apa yang saya menyatakan tadi. Ini tentang, tentang, dan a..

(reporter: (cont)…keluar daripada Perak State….)

Tidak boleh. Sultan tidak ada kuasa untuk a apa ni untuk buang negeri. Saya ingat sesuatu warganegara dalam a Malaysia. Tidak ada, tidak ada kuasa untuk buat demikian.

One way, or another by court of law a by, by the State Assembly, and after that by the Court of Law. So what the Sultan is doing is premature, as I said, because, the Pakatan State Government is still in the majority.


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One Response to What Did Karpal Actually Say?

  1. Gopal Raj Kumar

    Perhaps if the long and convoluted assessment and analysis of the writer of the above article can be shortened, put into more cogent sentences we could decide if Jayaseelan Anthony's efforts are deserving of the "excellent" status accorded by Loyar Buruk.