Lawyers' Right Watch Canada

Dagmar Dlab, “Canadian Lawyers Defend the Independence of the Bar in Malaysia”

“Our tradition is one of centuries old respect for the independence of the Bar. As we look internationally, there is a struggle being played out…we, as lawyers, have to work to ensure that the ideal of an independent Bar is promoted abroad and at home. Our citizens cannot be properly served by any other kind of a Bar.”

On January 14, 2002, the Malaysian Attorney General’s office withdrew its sedition charge against Karpal Singh, a prominent lawyer, on grounds of “public interest”. The charge was laid against Mr. Singh two years earlier for comments he made as legal counsel in the course of the trial of former Deputy Prime Minister and Minister of Finance, Anwar Ibrahim. In the history of the Commonwealth, this is the only known instance of a charge of sedition being brought against a lawyer for remarks made in open court in the defence of a client.

Karpal Singh’s prosecution was highly controversial as it directly challenged the independence of the Bar in Malaysia. International organizations, including Lawyers’ Rights Watch Canada (“LRWC”)[2], Amnesty International and the Bar Human Rights Committee of England and Wales (BHRC) campaigned on Mr. Singh’s behalf. Richard Gibbs, Q.C., President of the Law Society of British Columbia, attended Mr. Singh’s trial as an international observer, on behalf of the Law Society, the Federation of Law Societies of Canada, and LRWC, with a view to ensuring that the Malaysian Director of Public Prosecutions knew the eyes of the world were upon him.

In withdrawing the charge, Malaysia’s Attorney General specifically referred to the representations the government had received from national and international legal bodies, and acknowledged that he had considered those representations in deciding to abandon the prosecution. The commitment of the Canadian group LRWC to Karpal Singh’s case was critical to ending his persecution, suggesting that lawyers around the world can contribute, in a practical way, to protecting the independence of the Bar internationally.

Karpal Singh is a high profile defence lawyer in Malaysia, referred to by some as the “people’s lawyer” for his work defending political dissidents. He has been heavily involved in Malaysian politics as a government critic and member of the opposition Democratic Action Party (DAP) for over 25 years. He was arrested under the Internal Security Act[3] as a result of his peaceful political activities, and imprisoned from October 1987 to January 1989, leading Amnesty International to declare him a prisoner of conscience.

Prime Minister Mahathir, who has been in power since 1981, abruptly dismissed his heir apparent, Anwar Ibrahim, from his political positions on September 2, 1998 after a rift developed in their relationship.[4] Days later, Malaysian newspapers headlined that Anwar had been implicated in sodomy. The Malaysian Press is not free as a result of coercive legislation such as the Printing Presses and Publications Act, 1984, by which gives the Minister of Home Affairs the power to revoke publishing licences at his sole discretion. The discretion is not subject to judicial review. On September 20, 1998, Anwar was arrested and charged with sodomy[5]. Anwar was later charged with corruption, based on allegations that he used his political office for a personal benefit by directing the police to investigate confessions which implicated him in sodomy.[6] Amnesty International declared Anwar to be a prisoner of conscience, stating that he had been arrested in order to silence him as a political opponent.

A team of lawyers, including Karpal Singh, represented Anwar pro bono on the sodomy charges. During the sodomy trial, all of Anwar’s lawyers were threatened with contempt proceedings. One, Zainur Zakaria, was sentenced to three months in jail for contempt for filing an affidavit alleging that two public prosecutors had attempted to fabricate evidence against Anwar.[7]

On September 10, 1999, while in court representing Anwar, Karpal Singh expressed a concern that someone might be trying to murder his client. He uttered the following words in the course of his submission:

“ 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.”

This statement was made in a submission to the court about an Australian laboratory report indicating that Anwar, imprisoned for over a year, was suffering from arsenic poisoning. A year earlier, while in police custody, Anwar had been shackled to a chair and severely beaten, while bound and blindfolded. Malaysian Chief of Police, Abdul Rahim Noor, later confessed to the beating and resigned. In his submission, Karpal was calling for Anwar’s hospitalization and an inquiry into the poisoning while in police custody.

For these open court remarks Karpal Singh was, on January 14, 2000, arrested and charged with sedition.[8] He was later released on bail, and represented himself over a two- year period, until the charge was withdrawn on January 14, 2002.

International human rights organizations condemned the charge against Mr. Singh on grounds which stressed that, in an independent Bar, lawyers enjoyed immunity for words spoken in court in the representation of their clients.

LRWC, founded and based in British Columbia, took the lead in condemning the Malaysian government’s actions from the outset. One of LRWC’s mandates is to campaign for lawyers whose rights, freedoms and independence are threatened as a result of their advocacy. As part of their campaign in support of Mr. Singh, LRWC prepared an extensive submission titled “Lawyers and the Rule of Law on Trial: Sedition in Malaysia”[9], which examined Malaysia’s sedition laws and concluded that they violated both common law principles of absolute privilege and international law. LRWC concluded that the charge against Karpal Singh impugned the integrity of the Malaysian legal system. Barristers Michael Birnbaum, Q.C., and James Laddie of the Bar Human Rights Committee of England and Wales submitted an extensive written brief to the Malaysian government[10]

British Columbia lawyers, David W. Gibbons, Q.C., and Richard Fowler twice prepared to attend Mr. Singh’s trial as representatives of LRWC, but each time the Public Prosecutor sought and obtained adjournments of the trial. When the trial was rescheduled to October 2001, Messrs. Gibbons and Fowler could not attend due to their commitments to the Glen Clark trial. A call for LRWC volunteers went out and Mr. Gibbs was able to respond. In October the trial was once again adjourned, this time to January 2002. In the fall of 2001, the Federation of Law Societies and the Law Society of British Columbia adopted resolutions requesting that Mr. Gibbs report to them on the independence of the Bar and of the judiciary in Malaysia and on the fairness of the sedition trial of Karpal Singh.

International observers present in court on January 14, 2002, included diplomats from the Australian and Canadian High Commissions, from the British Foreign Office, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, Datuk Parum Cumaraswamy, Mark Trowell, Q.C. of the Australia Bar Council, and British Columbia’s Richard Gibbs, Q.C.

Forty minutes after the trial was scheduled to begin, Attorney General Abdul Gani Paitul “discontinued and withdrew” the charges against Mr. Singh:

“The office of the Public Prosecutor has received numerous representations from domestic and international legal bodies soon after En Karpal Singh was charged for the present offence seeking reconsideration of the pending charge against En Karpal Singh.… Today, having reconsidered the circumstances and the representations, and taking into consideration the public interest, the Public Prosecutor is of the view that it is appropriate to exercise his discretion under article 145 of the Federal Constitution to discontinue and withdraw the charge against En Karpal Singh under section 49(1)(b) of the Sedition Act 1948.”

Following this, Justice Augustine Paul, discharged and acquitted Karpal. However, he directed that Karpal be referred to the Malaysian Bar’s disciplinary board for making statements which Justice Paul found to be contemptuous and an attack on his impartiality.[11]

Karpal now faces disciplinary proceedings. Anwar is currently serving a nine- year sentence for convictions on the sodomy and corruption charges, with appeals pending. Anwar’s appeal was to be heard January 14, 2002, but, on Friday, January 11, 2002, the Attorney General applied, ex parte, for an adjournment of the appeal and his request was granted. Anwar’s counsel informed Mr. Gibbs that the first he knew of the adjournment application was when a copy of the adjournment order was faxed to him.

LRWC advanced three main criticisms of the sedition charge against Mr. Singh. They are outlined briefly as follows.[12]

Today most jurists and scholars in common law jurisdictions consider that the offence of sedition is obsolete. The most recent case law in this area defines sedition narrowly to be limited to an intention to incite the violent overthrow of lawfully constituted authority coupled with acts likely to achieve the prohibited result.

In 1951, the Supreme Court of Canada in Boucher v. The King commented that the crime of seditious libel was founded in legal and social beliefs no longer held:

“The crime of seditious libel is well known in the Common Law…Up to the end of the eighteenth century it was, in essence, a contempt in words of political authority or the actions of authority. If we conceive of the governors of society as superior beings, exercising a divine mandate, by whom laws institutions and administrations are given to men to be obeyed, who are, in short, beyond criticism, reflection or censure upon them or what they do implies either an equality with them or an accountability by them, both equally offensive.” [13]

Boucher v. The King was the last prosecution for sedition in Canada. It targeted a member of the Jehovah Witnesses, prosecuted for urging people to protest against the Quebec government’s “mob rule and Gestapo tactics” through obedience to God.

In most common law jurisdictions including Canada, England, Australia, India and Kenya, sedition laws have either been repealed altogether or the laws have simply ceased to be invoked.

In Malaysia, however, sedition laws have been used by the current regime as a political weapon to silence opposition to the Mahathir government. The definition of seditious tendency under the Sedition Act is far-reaching[14], and the Malaysian courts have interpreted the provisions so broadly that a conviction appears to be almost inevitable once a charge is laid.

LRWC advanced the position that Malaysia’s sedition laws ignore contemporary standards and principles of a free and democratic society.

Under common law, absolute privilege attaches to any statements made by judges, witnesses and advocates during the course of judicial or quasi-judicial proceedings. The only exceptions to absolute privilege are perjury, contempt of court and perverting the course of justice. This principle has been central to the integrity of the common law legal system for over three hundred years.

The sedition charge against Mr. Singh violated the principle of absolute privilege, and set an alarming precedent which could have undermined a cornerstone of proper legal traditions: the right and duty of a lawyer to represent fully the best interests of his or her client.

The charge against Karpal Singh also violated principles of international law relating to lawyers’ rights and duties.

The United Nations Declaration of Human Rights (“UDHR”)[15], Article 10, provides that “everyone is entitled to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. Article 11, paragraph 1, provides that “everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”. All the “guarantees necessary for a defense” include the right to representation by an independent counsel.

The United Nations Basic Principles on the Role of Lawyers (the “Basic Principles”), which are norms of international law, support the propositions that lawyers must not be hampered in their conduct of judicial proceedings by limitations on their speech and that they must enjoy immunity for statements made during those proceedings. In particular, paragraph 20 of the Basic Principles provides that lawyers have immunity for in-court statements:

“Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before the court, tribunal or other legal or administrative authority.”[16]

Malaysia acknowledged, in a letter of January 23, 1998, to the U.N. Special Rapporteur, that it “takes full cognizance of Principle 16” of the Basic Principles. Principle 16 provides that lawyers shall be able to perform their duties without improper interference.

Pursuant to the 1998 Latimer House Guidelines (the “Guidelines”)[17], Malaysia and other members of the Commonwealth are committed to ensuring that their national law and procedure reflect the principle that “[a]n independent, organized legal profession is an essential component in the protection of the rule of law”.[18]

On the basis of these principles, LRWC concluded that Mr. Singh’s prosecution was a violation of international law.

The international legal community demonstrated, in Karpal Singh’s case, effectiveness in protecting the independence of the Bar in Malaysia. The influence of representations from international legal organizations, including LRWC, were explicitly acknowledged as the Malaysian government desisted from a prosecution it had, until the very end, suggested it was determined to carry through.

Mr. Gibbs has returned from Malaysia optimistic about the future role of Canadian lawyers in cases like Mr. Singh’s. He is confident that an international consciousness will arise within our legal communities, and that they will embrace a role in campaigning on behalf of lawyers who are being persecuted as a result of their advocacy. LRWC offers itself as a vehicle for that action.[19] LRWC can be contacted at lrwc@portal.ca

[1] Richard Gibbs Q.C., President of the Law Society of British Columbia and member of Lawyers’ Rights Watch Canada, commenting on his attendance at Barrister Karpal Singh’s trial in Malaysia, on January 14, 2002.

[2] Lawyers’ Rights Watch Canada (LRWC) is a committee of lawyers working to promote human rights by protecting those who defend them. LRWC campaigns for lawyers whose rights, freedoms or independence are threatened as a result of their advocacy.

[3] Under the preventive detention laws of the Internal Security Act, the Malaysian government can arrest an individual for up to two years upon Ministerial signature. There is no right to judicial review. The detention is renewable indefinitely.

[4] For more on Mahathir’s government see “Malaysian Politics under Mahathir”, R.S. Milne and Diane K. Mauzy, (Routeledge: New York, 1999).

[5] Anwar was charged under section 377B of the Penal Code which provides as follows: “Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment which may extend to twenty years, and shall also be liable to whipping”.

[6] Three of Anwar’s associates, after being held incommunicado for periods of up to 126 days, confessed to having been sodomized by Anwar. These men claim that the police and others in authority forced them, through deprivation, torture and brutality to give false confessions.

[7] The Federal Court unanimously set aside the sentence, which had been upheld by the Court of Appeal, and acquitted Zainur. All three Federal Court judges criticized the decision of the lower court, stating that the lower court judge, Augustine Paul, had behaved more like a prosecutor than a judge. Justice Paul was the judge trying Karpal Singh on January 14, 2002.

[8] Karpal Singh was charged under section 4(1)(b) of the Sedition Act, 1948.

[9] By Gail Davidson, Tami Friesen and Michael Jackson, Q.C. A shorter version of this brief was published in the Criminal Law Forum 12: 1-23, 2001.

[10] Re Karpal Singh, An Opinion (2000). This paper can be obtained from BHRC’s web site at www..barhumanrights.org.uk.

[11] Mr. Singh said that “The Judiciary should not be afraid of being the subject of observation. Your Lordship has been found by the Federal Court to be more of a prosecutor than a judge…rightly, you should be tribunalised.” This statement was made in reference to comments made by the Federal Court about Justice Paul in the context of a contempt charge he had brought against another member of Anwar’s defence team. See note 7, supra.

[12] For more on these submissions see LRWC’s paper titled “Lawyers and the Rule of Law on Trial: Sedition in Malaysia”, published in the Criminal Law Forum 12: 1-23, 2001.

[13] Boucher v. The King, [1951] S.C.R. 265, per Mr. Justice Rand at 285-286.

[14] See section 3(1) which defines “seditious tendency” as including a number of extremely broad categories of consequences which could render otherwise legal acts illegal. The language used in this provision is broad and imprecise enough to catch everything from a ‘tendency to question’ certain topics to a ‘tendency to raise discontent among inhabitants’.

[15] G.A. Res. 217A (III), U.N. GAOR, 3^rd Sess., Supp. No. 13, UN Doc. A/810 (1948) 71.

[16] U.N. Doc. A/CONF. 144/28Rev. 1 at 118 (1990)

[17] Latimer House Guidelines for the Commonwealth, published June 1, 1998.

[19] LRWC: 1) campaigns for lawyers whose rights, freedoms or independence are threatened as a result of their advocacy; 2) produces legal analyses of national and international laws and standards relevant to human rights abuses against lawyers and other human rights defenders; 3) works in cooperation with other human rights organizations.