I was criticized recently for being biased in my view of the political landscape. The basis of this criticism was a perceived unwillingness on my part to be as critical of the opposition as I was of the government. As this was not the first time, and as I had read similar observations made of other commentators whom I view as being fairly objective, I spent some time reflecting on what it is I had written in the past and why. I also gave some thought to why it is I write.
I am not a member of a political party. I cannot even honestly say that I am a supporter of any particular party. It is true that I have in the past acted as a lawyer for some of the Pakatan Rakyat parties and for opposition members, my role in that regard was limited to that of an advocate. That I have not acted for the Barisan Nasional parties is easily explained by my not having ever been retained to do so.
As a general rule, I write when I have something to say about a particular issue of significance. My training and exposure affords me a perspective that may be of assistance to those seeking to form a view. A weekly column in the Malay Mail and a monthly column for the Malaysian Insider has made this process more regimented, providing the need for a much welcomed discipline on my part. Writing is a skill that requires practice, much like any other.
In writing, my desire to espouse a viewpoint is self-limited by a narrower interest in policy and frameworks, in particular legal and constitutional. I am concerned not so much with what people say or do but with the permissible limits of their doing so.
This has quite naturally focused my attention on matters of governance, primarily at the Federal level. Though I have written at times about matters within a particular state, my relatively infrequent commentary has been largely confined to matters of constitutionality. Notable instances have been comments on the so-called Trengganu crisis last year and more recently, the Perak affair.
Concerned as I am with matters of governance, it is not surprising that I have tended to scrutinize Executive action and its impact. In the nature of things, consideration of Executive action has in turn necessitated a deliberation of the politics underlying Executive action.
An aim to ensure comprehensive analysis has required examination of the agencies through which Executive dictate has been, or has been perceived to be, effected. This has unavoidably led to commentary on the police force and other federal agencies as well as the Judiciary and other constitutional bodies.
I will concede that much of this commentary has not been complimentary. This has however not been because I am anti-government. I do not condemn merely for the fact of what I condemn having been precipitated by the government. I condemn because what it is that I condemn is, in my view, wrong in principle and its long-term implications of grave concern. Being critical does not necessarily arise from the animosity that being anti-anything requires.
Take, for instance, the tabling of the motion to suspend the Member of Parliament for Puchong, Gobind Singh. The decision to allow for debate on the motion on an urgent basis was a matter within the discretion of the Speaker. It could be said that it was also within the discretion of the Speaker’s to not allow Gobind Singh to address the House despite the motion being aimed at him and carrying with it punitive consequences was also within his discretion. Having said that, it is my view that this decision of the Speaker was and is highly questionable for having manifestly denied Gobind Singh of his right to be heard in his own defence.
My criticism in this regard is not intended to reflect my being anti-Barisan or anti-government. It is instead borne out of a commitment to the fundamental principles upon which democracy was established in this country. I would hold the same view if the motion was against a Barisan Member of Parliament and he or she was denied an opportunity to be heard. The Rule of Law is not a matter of expediency.
Where I have asserted that the Executive has occasioned abuses of power, and no such assertions have been made against the opposition, at the Federal level the opposition has no such power to abuse. At the state level, in my view, no such abuse has been demonstrated. That is understandable; the Pakatan Rakyat state governments have no influence over federal agencies or constitutional bodies.
If the Pakatan were ever to form Federal Government, it would be the subject of scrutiny in very much the same way as the Barisan is at the moment. Civil society has promised that it will have higher expectations of the Pakatan. It has already set the tone with its scrutiny of the Pakatan state governments.
And where I have expressed a preference for the Pakatan, then it is only because I think that it is not as entrenched in its politics as the Barisan is and, unlike its counterpart, is still capable of distinguishing its own political needs from those of the nation as a whole. Though it is not without its own faults, it espouses ideals that the Barisan seems to have abandoned some time ago. To the great majority of this country, a strong and accountable system of democracy is more than just a matter of political convenience.
It is far too convenient to dismiss criticism for it being anti-government without regard to what it is that is being said. No government is infallible, least of all one that has virtually untrammeled powers. Confronting the painful realities is the only way in which we can progress, it is the price of nation building.
I am not a member of a political party. I cannot even honestly say that I am a supporter of any particular party. It is true that I have in the past acted as a lawyer for some of the Pakatan Rakyat parties and for opposition members, my role in that regard was limited to that of an advocate. That I have not acted for the Barisan Nasional parties is easily explained by my not having ever been retained to do so.
As a general rule, I write when I have something to say about a particular issue of significance. My training and exposure affords me a perspective that may be of assistance to those seeking to form a view. A weekly column in the Malay Mail and a monthly column for the Malaysian Insider has made this process more regimented, providing the need for a much welcomed discipline on my part. Writing is a skill that requires practice, much like any other.
In writing, my desire to espouse a viewpoint is self-limited by a narrower interest in policy and frameworks, in particular legal and constitutional. I am concerned not so much with what people say or do but with the permissible limits of their doing so.
This has quite naturally focused my attention on matters of governance, primarily at the Federal level. Though I have written at times about matters within a particular state, my relatively infrequent commentary has been largely confined to matters of constitutionality. Notable instances have been comments on the so-called Trengganu crisis last year and more recently, the Perak affair.
Concerned as I am with matters of governance, it is not surprising that I have tended to scrutinize Executive action and its impact. In the nature of things, consideration of Executive action has in turn necessitated a deliberation of the politics underlying Executive action.
An aim to ensure comprehensive analysis has required examination of the agencies through which Executive dictate has been, or has been perceived to be, effected. This has unavoidably led to commentary on the police force and other federal agencies as well as the Judiciary and other constitutional bodies.
I will concede that much of this commentary has not been complimentary. This has however not been because I am anti-government. I do not condemn merely for the fact of what I condemn having been precipitated by the government. I condemn because what it is that I condemn is, in my view, wrong in principle and its long-term implications of grave concern. Being critical does not necessarily arise from the animosity that being anti-anything requires.
Take, for instance, the tabling of the motion to suspend the Member of Parliament for Puchong, Gobind Singh. The decision to allow for debate on the motion on an urgent basis was a matter within the discretion of the Speaker. It could be said that it was also within the discretion of the Speaker’s to not allow Gobind Singh to address the House despite the motion being aimed at him and carrying with it punitive consequences was also within his discretion. Having said that, it is my view that this decision of the Speaker was and is highly questionable for having manifestly denied Gobind Singh of his right to be heard in his own defence.
My criticism in this regard is not intended to reflect my being anti-Barisan or anti-government. It is instead borne out of a commitment to the fundamental principles upon which democracy was established in this country. I would hold the same view if the motion was against a Barisan Member of Parliament and he or she was denied an opportunity to be heard. The Rule of Law is not a matter of expediency.
Where I have asserted that the Executive has occasioned abuses of power, and no such assertions have been made against the opposition, at the Federal level the opposition has no such power to abuse. At the state level, in my view, no such abuse has been demonstrated. That is understandable; the Pakatan Rakyat state governments have no influence over federal agencies or constitutional bodies.
If the Pakatan were ever to form Federal Government, it would be the subject of scrutiny in very much the same way as the Barisan is at the moment. Civil society has promised that it will have higher expectations of the Pakatan. It has already set the tone with its scrutiny of the Pakatan state governments.
And where I have expressed a preference for the Pakatan, then it is only because I think that it is not as entrenched in its politics as the Barisan is and, unlike its counterpart, is still capable of distinguishing its own political needs from those of the nation as a whole. Though it is not without its own faults, it espouses ideals that the Barisan seems to have abandoned some time ago. To the great majority of this country, a strong and accountable system of democracy is more than just a matter of political convenience.
It is far too convenient to dismiss criticism for it being anti-government without regard to what it is that is being said. No government is infallible, least of all one that has virtually untrammeled powers. Confronting the painful realities is the only way in which we can progress, it is the price of nation building.
(Malay Mail; 17th March 2009)
MIS
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.
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.
Malik Imtiaz Sarwar
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