THE LAWYERS WEEKLY April 19, 2002

Foreign role seen in end to Malaysian lawyer’s prosecution

 By Michael Wilhelmson

Vancouver

On January 14, 2000, Karpal Singh, a prominent human rights lawyer, deputy chairman of the opposition Democratic Action Party (DAP) and former opposition Member of Parliament was arrested on a charge of sedition under Malaysia's edition Act 1948. Karpal has been an outspoken critic of the government of Prime Minister Mahathir Mohamad.

The charge stemmed from Karpal's defence of a former deputy prime minister and finance minister, Anwar Ibrahim. Anwar had been charged with crimes, the  material ingredient of which were allegations of sodomy and adultery. The prosecution has been widely regarded internationally as political.

In a brief submitted by Lawyers Rights Watch Canada, lawyers Gail Davidson Tami Friesen and Michael Jackson, noted Karpal's defence of Anwar on the sodomy  harges was vigorous, going so far as to give notice to call Mahathir to give evidence.

In an interview with The Lawyers Weekly, Davidson noted that Karpal cuts a  triking figure in court, tall in stature and aggressive, gesticulating broadly and demanding respect from the bench. On one occasion, he chastised the judge with, "that is no way to speak to counsel."

In the context of Malaysia's deferential Bar, Karpal's courage and sense of humour is almost beyond belief, especially after spending 18 months in jail under Malaysia's infamous Internal Security Act, as part of Operation Lalang in October 1987. The Act allows detention for up to two years, on a ministerial signature, not reviewable by the courts.

As if that were not enough to fear, early in the first Anwar trial, a co-defence counsel was summarily sentenced for contempt to three months in jail. His crime: filing a covering affidavit for another affidavit, deemed to be "scandalous."

During the trial, Anwar Ibrahim, who remained in custody, began to lose weight and hair. His counsel arranged for a urine sample to be sent to an Australian lab under a pseudonym. The results showed elevated levels of arsenic.

On September 10, 1999, Karpal disclosed the results of the lab report in court, suggested his client was being poisoned and demanded an inquiry. But Malaysian courts do not use court reporters or tape recording and on this occasion, Karpal was recorded by the judge to have said: “It could well be that someone out there wants to get rid of him … even to the extent of murder. I suspect that people in high places are responsible for the situation.”

Karpal Singh had good reason to suspect murder. One year earlier, Anwar emerged from custody bloodied and beaten and a demand by his counsel for an inquiry was granted, although Prime Minister Mahathir suggested Anwar had beaten himself up. Police Chief Abdul Rahim Noor subsequently admitted to the beating of a blindfolded and handcuffed Anwar, resigned and was prosecuted. No sedition charges were laid as a result of that demand for an inquiry.

After disclosing the lab report, the judge noted that this was a serious matter and an inquiry was in order. Malaysia’s attorney general suggested that perhaps Anwar was being poisoned by his own supporters. The inquiry into the poisoning eventually determined that arsenic was in the food given all prisoners in the institution.

On January 12, 2000, Karpal was charged with uttering seditious words in Court, an offence under section 4(1)(b) of the Sedition Act, 1948. As noted by Human Rights Watch Canada in a letter to Malaysia’s attorney general, the sedition law, “originally enacted by British colonial authorities, limits free expression by broadly criminalizing any speech which is judged to have a ‘seditious tendency,’ including speech which tends ‘to bring into hatred or contempt or to excite disaffection against’ the government or which tends to promote ‘feelings of ill-will and hostility between different races.’ The vague language invites selective application.”

According to Lawyers Rights Watch Canada, the judiciary’s interpretation of the broadly worded law has meant a conviction “appears to be the almost inevitable result of a prosecution.”

According to LRWC, the crime of sedition originates either in the De Scandalis magnatum (Statute of Westminster, 1275, 3 Edw. I, c. 34 (repealed in 1887)), which imposed penalties for publishing false news, or from 1606, when the Chief Justice of the Star Chamber set down in De Libellis Famosis the familiar elements of the offence. Punishments included lopping off ears.

'We thought pretty clearly that the briefs that had been presented made this prosecution an embarrassment to the government.'

Whatever its origin in English law, the crime of sedition clearly arose in society that believed in the divine right of kings. In most of the common-law world today, the offence is regarded as anachronistic, a “dead letter” and inconsistent with modern democratic societies and basic rights to freedom of speech. There has been no prosecution for sedition in Canada for 50 years and no successful prosecution in England since 1909.

In Boucher v. The King, [1951] S.C.R. 265, the Supreme Court of Canada did not conceal its distaste for the charge and held that the prosecution must prove an “intention to incite violence or to create public disturbance or disorder against the sovereign or the institutions of Government.” Justice Ivan Rand rejected the validity of sedition based on the mere creation of negative responses among people such as hostility, ill will and hatred.

No proof of intention is required under Malaysian’s sedition law, nor is truth a defence. The rationale of Lord Coke — that truth is no defence to a charge of sedition because truth can be more harmful to the ruler than fiction — certainly still resonates in Malaysia.

The Karpal Singh prosecution caused an uproar around the Commonwealth. As noted in an opinion field by Michael Birnbaum and James Laddie of the Bar Human Rights Committee of England and Wales, “this is the first case anywhere in the world in which a lawyer has been accused of sedition in respect of words spoken in the defence of his client.”

Not only did the charge violate the common-law immunity in favour of judges, lawyers, parties and witnesses, for among other things, words said in open court, the charge contravened international human rights standards as well as the Basic Principles on the Role of Lawyers, an instrument endorsed by the United Nations General Assembly.

According to Birnbaum and Laddie, the prosecution threatened not only the independence of the legal profession but also the fundamental right of the individual to a fair trial. One wonders how an allegation of poisoning supported by objective evidence could otherwise be brought forward.

Vancouver lawyer David Gibbons, a member of LRWC, says charging someone for words spoken in open court “sets an alarming precedent, because it violates the privilege that allows lawyers, judges, and litigants to speak frankly without fear of facing criminal or civil liability.”

Karpal Singh’s trial was adjourned three times, with the final trial date being set for January 14, 2002. This did not prevent presentation of written briefs on his behalf, as well as the presence of international observers such as Leslie James, principal secretary of the Canadian High Commission in Kuala Lumpur, Mark Prowell of the Australian Bar Council, a representative of the British Foreign Office, a representative of the Australian Foreign Office, the UN Special Rapporteur on Human Rights in Malaysia, a representative of the Malaysian Bar Council, as well as Richard Gibbs, representing the Law Society of British Columbia and Canada’s Federation of Law Societies. The current leader of DAP, Lim Kit Siang (who had himself been failed in Operation Lalang) also attended.

The hearing was held off Freedom Square in a magnificent colonial-era courthouse. Attorney General Dato Abdul Gani Patail, nominally a “director of prosecutions” rather than a political appointment, drove up to the courthouse in a chauffeured limousine.

According to Gibbs, Judge Augustine Paul — the judge who had jailed defence counsel for contempt during the Anwar trial — came in at around 9:20 a.m.

Karpal, assisted by his three sons (all lawyers) rose, introduced himself and then introduced the international observers, including Gibbs.

Karpal then applied to have the international observers given official observer status. When the judge inquired as to why they needed official status, since the gallery was open to the public, Karpal pointed out that Judge Paul’s jailing of counsel for contempt

had been overturned by the Federal Court and that in its ruling, the higher court had held

that Judge Paul had behaved “more like a prosecutor than a judge.”

Accordingly, he submitted that Judge Paul ought to remove himself or be “tribunalized,” as it is called in Malaysia.

“Then Augustine Paul almost hit the roof,” Gibbs said. “Karpal doesn’t mind sticking a thistle up somebody’s nose. I thought he was going out the back door. I didn’t think he was walking out the front after this one.”

Then Attorney General Gani Patail suddenly rose to announce that he was withdrawing the charge. Referring to representations by domestic and international legal bodies, he said that although he considered the charge properly laid, circumstances favoured the exercise of his discretion to discontinue the prosecution.

“We thought pretty clearly that the briefs that had been presented made this prosecution an embarrassment to the government,” Gibbs told The Lawyers Weekly, “that internationally it was going to take a black eye. … The case was going to attract immense publicity, even with the tame press in the country, with international observers there and it was just heading for a show trial that the government no longer wanted.”

In other words, the international response was a total success. Judge Paul was not done, however. He ordered that Karpal’s conduct in suggesting he be “tribunalized” be reported to the Malaysian Bar Council for discipline. Following the hearing, Karpal approach the clerk to clarify exactly what was ordered. The clerk informed him that the judge had said, obviously out of earshot, that “he was going to put you in jail for contempt, but not with all those international observers present.”

Gibbs noted that, to date, no contempt proceedings have been launched, and Karpal is pretty safe with the Bar Council.

“I suspect he is going to be okay there. He is a bit of a legend at the Malaysian Bar.”

Prime Minister Mahathir will no doubt be unhappy with how prosecution unfolded. In a statement reported to have been made in February during an interview in London, England, he noted that he sometimes “cracks jokes” about lawyers, including paraphrasing Shakespeare’s famous line, “the first thing we do, we hang all the lawyers.” He noted that, of course, he is not against all lawyers, just against some like Karpal Singh.

“But there are some lawyers who of course go all out and say things which are nasty. Then I would like very much to hang the lawyers, these particular lawyers. But of course, this is just a wish.”