Sedition charge against Karpal

(The following is the charge preferred against DAP National Chairman and MP for Bukit Gelugor Karpal Singh under Sedition Act 1948 at the Kuala Lumpur Sessions Court on Tuesday 17 March 2009)

DALAM MAKAMAH SESYEN DI KUALA LUMPUR
KES TANGKAP NO:
PENDAKWA RAYA
LAWAN
KARPAL SINGH A/L RAM SINGH

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.”

Hukuman

Kamu boleh, bagi kesalahan kali pertama, didenda tidak melebihi lima ribu ringgit atau dipenjara selama tempoh tidak melebihi tiga tahun atau kedua-duanya, dan bagi kesalahan yang kemudian boleh dipenjara selama tempoh tidak melebihi lima tahun.

Bertarikh pada 16 Mac 2009
PENDAKWA RAYA
[signature]
(TAN SRI ABDUL GANI PATAIL)
PENDAKWA RAYA

LAMPIRAN A

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

I think I baca statement, yang a ada depan saya sekarang ini, –
The removal of Perak Menteri Besar, Datuk Seri 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 beyond a pale of a doubt, the Sultan of Perak has contravened Article 16 (6) of the Constitutions of the State of Perak.

The Pakatan Rakyat State Government had the mantle of legitimacy it still has. In my view the election commission had through its chairman, Tan Sri 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 trigerred the provisions of Article 33 (1) which states [if any question arises whether a member of the Legislative assembly has a 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 my 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 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 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 [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 a Menteri Besar Dato’ Haji 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 conjuction with the silver jubilee celebration of Sultan Azian Shah as the 34th Sultan of Perak at Istana Iskandariah on 3 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 of Perak. 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 they 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 by one as to where their allegiance lay, because that is not within the confines of a what the Sultan could do. That is the a job of the assembly to decide under Article 33 (1). The Sultan cannot usur p 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 Govermnent 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 injuction 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 wonied, 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 a 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 10 of the Federal Constitution which says you have a right to form associations. The right to associate include the right to disassociate, that’s what the 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 Govemnent 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 NCR 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 segi Perlembagaan negeri Perak, adalah terus terang apa yang ada dimengisytiharkan oleh Sultan Perak iaitu a Kerajaan Negeri Pakatan Rakyat tidak sah tentang dengan peruntukan Perkara 16 (6) Perlembagaan a Perak. Apa yang dibuat tidak a boleh dimempertahankan. Adakah tiga ahli Dewan Undangan Negeri Perak apabila menandatangan satu surat letak jawatan a letak jawatan, adakah itu sah, adalah untuk a Dewan Undangan Negeri Perak membuat keputusan. Tidak ada pihak lain yang ada kuasa untuk a buat demikian, termasuk Sultan Perak.

Apa saya menyatakan tadi ada satu a langkah yang lain yang boleh digunalcan iaitu rornbakan Perkara 64 Perlembagaan Negeri Perak iaitu Sultan Perak ada kuasa untuk a rujuk saw soalan, soalan inengenai peruntukan dalam a Perlembagaan Negeri Perak ,dari segi apa yang ada keadaan di negeri itu .untuk menentukan sapa ada kuasa. Kuasa dalam tangan Dewan Undangan Negeri untuk mengisy mengisytiharkan adakah tiga DUN a ADUN ini, ADUN yang tidak letak jawatan atau sudah letak jawatan. Bukan Sultan Perak untuk memanggil 32 ADUN Istana dan menyoal dia.

Adakah dia masih ahli Dewan Undangan Negeri bagi a Keadilan atau DAP. Itu bukan kuasa Sultan Perak, itu kuasa negeri, Kerajaan Negeri yang sah. Kerajaan Negeri yang akan di a mengisytiharkan a pada 3 setengah petang ini, tidak sah. Jika itu dibuat, kami akan rujuk perkara ini ke Mahkamah Tinggi di Ipoh pada hari Selasa depan satu kes akan difailkan. Dalam Kes itu, Sultan Perak akan jadi penentang yang a atau a responden, defendan akan dinamakan sebagai defendan yang pertama dan Kerajaan Negeri baru yang akan di a mengisytiharkan pada pukul 3 setengah petang ini, sebagai 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 a exco yang akan di um..bersumpah pada 3 setengah petang ini. Itu adalah dengan ringkas apa yang saya menyatakan dalam bahasa lnggeris 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 Seri..(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 in a 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.

[AFZAN SAKINA SULAIMAN, AISHAH AHMAD AZAM]

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SEDITION ACT 1948 (ACT 15)
(AS AT 25TH OCTOBER 1999)

Section 3. Seditious tendency.

(1) A “seditious tendency” is 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.

(2) Notwithstanding anything in subsection (1) an act, speech, words, publication or other thing 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.

(3) For the purpose of proving the commission of any offence against this Act the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact the act had, or would, if done, have had, or the words, publication or thing had a seditious tendency.

Section 4. Offences.

(1) Any person who –

(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act which has or which would, if done, have a seditious tendency;

(b) utters any seditious words;

(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or

(d) imports any seditious publication,

shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding five thousand dollars or to imprisonment for a term not exeeding three years or to both, and, for a subsequent offence, to imprisonment for a term not exceeding five years; and any seditious publication found in the possession of the person or used in evidence at his trial shall be forfeited and may be destroyed or otherwise disposed of as the court directs.

(2) Any person who without lawful excuse has in his possession any seditious publication shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding eighteen months or to both, and, for a subsequent offence, to imprisonment for a term not exceeding three years, and the publication shall be forfeited and may be destroyed or otherwise disposed of as the court directs