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[1] LAWYERS’ RIGHTS WATCH CANADA is a committee of lawyers providing support to lawyers imperiled because of their advocacy. Gail Davidson is the founder of LRWC and a member of the Law Society of British Columbia; Tami Friesen is a founding member of LRWC and a member of the Law Societies of British Columbia and Ontario; Michael Jackson, Q.C., is a professor of law at the University of British Columbia Faculty of Law, a member of the Law Society of British Columbia and a founding member of
LRWC.
[2] Karpal Singh was a DAP Member of Parliament from the State of Penang from l978 to November l999, and was a State Assemblyman for the State of Kedah from l974 to
1978.
[3] Karpal Singh is one of the defense counsel for Anwar Ibrahim on a sodomy charge, the trial of which commenced in June, l999. Anwar Ibrahim is charged under the Penal Code of Malaysia, s.377B:”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.
[4] V.N.Dadrian,The historical and legal interconnections between the Armenian genocide and the Jewish Holocaust: From immunity to retributive justice (1998), 23 Y.J.I.L 503 at
504.
[5] Karpal Singh was arrested during ‘Operation Lalang’ in October l987 under the Internal Security Act and imprisoned until January l989. He was released on a habeas corpus application in March l988, but was arrested hours later. As a result of the l987 arrest, Karpal Singh was designated as a prisoner of conscience by Amnesty
International.
[6] The Straits Times [Singapore] (23 September
1998).
[7] Pursuant to Emergency (Essential Powers) Ordinance No. 22/1970, s.2(1), repealed in October l998, [the Ordinance 22
charges].
[8] Amnesty International Press Statement (28 January 2000) AI Index: ASA
28/01/00.
[9] Muzzled in Malaysia, The Economist (29.08.98 - 04.09.98).
[10] Amnesty International Press Statement (March 2000) AI Index: ASA 28/03/00.
[11] Dato’ Param Cumaraswamy is currently the UN Special Rapporteur on Judicial Independence.
[12] Civil Case No. S2-23-93-1999 (19 November 1999) (Kuala Lumpur High Court) [unreported]. This decision has been appealed.
[13] As reported on the website <http://www.malaysiakini.com>
[14] G. MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline (Toronto: Carswells,1993) at 26-27.
[15] L.W. Maher, The Use and Abuse of Sedition (1992), 14 Sydney L. R.. 287 at 312.
[16] Lord Denning, Landmarks in the Law (London: Butterworths, l984) at 295.
[17] Boucher v. The King, [1951] S.C.R. 265 at 285-86.
[18] The decision of Mme. Justice MacLachlin (S.C.C.) in Zundel v. The Queen et al. (1992), 75 C.C.C. (3d) 449 at 501.
[19] 77 Eng. Rep. 250.
[20] Ibid., at 251.
[21] Kenya’s Sedition Act was repealed in November l997 by the Statute Laws Repeals and Miscellaneous Amendments Act l997.
[22] G. Imanyara & K. Mungai, Kenya in R. Martin, ed., Speaking Freely: Expression and the Law in the Commonwealth (Toronto: Irwin Law, 1999) 287 at 330.
[23] R. v. Aldred (1909), 22 Cox C.C. 1.
[24] R. v. Caunt (1947), 64 L.Q.R. 203.
[25] Supra note 17.
[26]R. v. Chief Metropolitan Magistrates Court ex parte Choudhory,[1991] 1 All E.R. 306 at 323.
[27] Supra note 17 at 288.
[28] Ibid., at 286.
[29] Kedar Nath. Singh v. State of Behar, A.I.R. 1962 S.C. 955.
[30] Ibid., at 968.
[31] The Australian Intelligence and Security (Consequential Amendments) Act l986, section 12 &13.
[32] Supra, note 15 at 288.
[33] L. W. Maher, Dissent, Disloyalty and Disaffection: Australia’s Last Cold War Sedition Case (1994) 16 Adel. L.R,.No. 1p. 1 at 17.
[34] Brandenburg v. Ohio, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (U.S.S.C. 1970).
[35] United States v. Rahman, 854 F. Supp. 254 (S.D.N.Y. 1994).
[36] 18 U.S.C. s.2384: If two or more persons...conspire to overthrow, put down or to destroy by force the Government of the U.S., or to levy war against them....
[37] J.J. Paust & M.C. Bassiouni et al., International Criminal Law: Cases and Materials (Durham: Carolina Academic Press, 1986) at 1215.
[38] The Sedition Ordinance came into force on July 19, 1948 [hereinafter Sedition Act].
[39] 162. Existing laws(1) Subject to the following provisions of this Article and Article 163, the existing laws shall, until repealed by the authority having power to do so under this Constitution, continue in force on and after Merdeka Day, with such modifications as may be made therein under this Article and subject to any amendments made by federal or State law.
[40] Parliament was suspended from May 1969 to February 1971.
[41] Subsections 3(2)(e)&(f) were added and s. 3(2) was amended.
[42] Sedition Act, ss. 3(1)(e)&(f).
[43] P.P. v. Ooi Kee Saik & Ors.,[1971] 2 M.L.J. 108.
[44] Lim Guan Eng v. P.P.,[1998] 3 M.L.J. 14 at 43.
[45] Supra note 43 at 111.
[46] Supra note 29.
[47] Venkt Iyer in R. Martin ed., Speaking Freely: Expression and the Law in the Commonwealth, supra note 22 at 232.
[48] Supra note 43 at 112.
[49] P.P. v. Mark Koding,[1983] 1 M.L.J. 111.
[50] Ibid., at 114.
[51] P.P. v. Param Cumaraswamy (No.2),[1986] 1 M.L.J. 518 at 525.
[52]R. v. Sullivan (1868), 11 Cox C.C. 44.
[53] (1949), 79 C.L.R. 101.
[54] Supra note 33.
[55] R.A. Addruse, Malyasia in R. Martin, ed., Speaking Freely:Expression and Law in the Commonwealth (Toronto: Irwin Law, 1999) 369 at 380.
[56] P. Milmo & W.V.H. Rogers, eds., Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, l998) at 281 [hereinafter Gatley]; P.R. Carter-Ruck, R. Walker & H.N.A. Starte, Carter-Ruck on Libel and Slander, 4th ed. (London: Butterworths, l992) at 119; R.E. Brown, The Law of Defamation in Canada, 2nd ed., vol. 1 (Toronto: Carswell, l994) at 554.
[57] R v. Skinner, (1772) Lofft 55 at 56, 98 E.R. 529 at 530[cited to E.R.].
[58] Royal Aquarium v. Parkinson,[1892] 1 Q.B. 431 (C.A.) at 451 per Lopes, L.J.
[59] Civil Case No. S2 (S5)-23-14-1997 tried together with Civil Case No. S5-23-08-1997 (22 January 2000) (Kuala Lumpur High Court) at 31 per Dato’ Foong, J.[unreported]
[60] Ibid., at 33.
[61] Jamieson v. The Queen, Brugmans v. The Queen (1993), 177 C.L.R. 574 at 582.
[62] Supra note 56: Carter-Ruck at 119; Brown at 574-75; Gatley at 282-83.
[63] Geyer v. Merritt (1979), 16 B.C.L.R. 27 (B.C.S.C.), aff’d (1980), 26 B.C.L.R. 373 (B.C.C.A.); Munster v. Lamb (1883), 11 Q.B.D. 588 (C.A.).
[64] Gatley, supra note 56 at 284.
[65] Munster v. Lamb, supra note 63; Brown, supra note 56 at 616.
[66] Carter-Ruck, supra note 56 at 185.
[67] Munster v. Lamb, supra note 63 at 605; See also supra note 56:Carter-Ruck at 119; Brown at 574. supra note 56 at 31.
[68] Supra note 61 at 583. The latter two quotes are from Dawkins v. Lord Rokeby (1873), L.R. 8 Q.B. 255 at 264.
[69] Supra note 56: Carter-Ruck at 119; Gatley at 292; Brown at 575-76.
[70] Bretherton v. Kaye,[1971] V.R. 111 (S.C.) at 116 per Gillard, J; See also Lincoln v. Daniels,[1962] 1 Q.B. 237 (C.A.) at 255-56 per Lord Devlin.
[71] J.G. Fleming, The Law of Torts, 8th ed., (Sydney: Law Book, 1992) at 559; See V.V. Veeder, "Absolute Immunity in Defamation: Judicial Proceedings" (1909), 9 Col. L. Rev. 463 at 469.
[72] Munster v. Lamb, supra note 63 at 603-04.
[73] Rondel v. Worsley (1969), 1 A.C. 191 at 227 per Lord Reid.
[74] Veeder, supra note 71 at 482.
[75] Ibid., at 482-83.
[76] Bretherton v. Kaye, supra note 70.
[77] Ibid., at 125.
[78] Resolution No.4 of Bar Council Malaysia (25 March 2000) at paras. 4, (a) at <http://www.jaring.my/bar-mal/fr_mess.htm> There were 107 joint proposers and seconders to this resolution.
[79] Ibid., at paras. 1, 7.
[80] Ibid.,at paras. 10, (b), (c), (e), (f).
[81] G.A. Res. 217A (III), U.N. GAOR, 3rd Sess,, Supp. No. 13, UN Doc. A/810 (1948) 71[hereinafter UDHR].
[82] U.N. Doc. A/CONF. 144/28/Rev. 1 at ll8 (1990)[hereinafter Basic Principles].
[83] Adopted by the United Nations General Assembly in l999.
[84] Basic Principles, supra note 82 at para. 14.
[85] Ibid., at para. 16.
[86] Published June 1, l998.
[87] The Harare Declaration is the Commonwealth’s second general statement of beliefs and was issued by Commonwealth Heads of Government at their meeting in Zimbabwe in l991.
[88] Latimer House Guidelines for the Commonwealth, Part VII, article 3.
[89] Supra note 14 at 27-3
[90] D. Stuart, Canadian Criminal Law: a Treatise (Toronto:Carswell, l995) at 17.
[91] N. Ambe, A Legal Analysis of the Domestic Enforceability of International Human Rights Law: The Rule of Law Imperative (1998), 47 U.N.B.L.J. 109 at 123.
[92] P. Sieghart, International Human Rights Law, cited in Lord Elwyn-Jones, Judicial Independence and Human Rights in R. Blackburn & J. Taylor, eds., Human Rights for the 1990s: Legal and Political and Ethical Issues (London: Mansell, l991) at 44.
[93] Supra note 90 at 16.
[94] Reference Re ss. 193 & 195.1(1)(c) of the Criminal Code (Man),[1990] 1 S.C.R. 1123 at 1152 per Lamer, J.
[95] 405 U.S. 156 (1972).
[96] Papachristou v. City of Jacksonville, ibid., at 170.
[97] J. Daniels, "Valid Despite Vagueness: The Relationship Between Vagueness and Shifting Objective" (1994), 58 Sask. L. Rev. 101 at 109, referring to Grayned v. City of Rockford, 408 U.S. 104 (U.S.S.C. 1972).
[98] Supra note 94.
[99][1989] 1 S.C.R. 927 at 983.
[100] Nova Scotia Pharmaceutical Society,[1992] 2 S.C.R. 606 at 636.
[101] Reference Re s.94(2) of the Motor Vehicle Act (British Columbia) (1985), 23 C.C.C. 289. (S.C.C.). In this case, the offence of driving during a license suspension created liability upon proof of driving.
[102] Ibid., at 310 per Lamer, J.
[103] Sedition Act, s.3(3).
[104] Sedition Act, s.4(1)(b).
[105] Charter of the United Nations, 26 June 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, (entered into force 24 October 1945)[hereinafter UN Charter].
[106] Ibid, Articles 1(3), 55, 56.
[107] Ibid, Preamble.
[108] UDHR, supra note 81, Preamble.
[109] B. Dickson, "The Canadian Charter of Rights and Freedoms: Context and Evolution" in G.A. Beaudoin & E. Mendes, eds., The Canadian Charter of Rights and Freedoms, 3rd ed. (Toronto: Carswell, 1996) 1-1 at 1-5.
[110]G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. No. 16 at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171 9entered into force 23 March 1976). To date there are 144 state parties to the Convention.
[111] The Universal Declaration of Human Rights: A Standard of Achievement, (United Nations Officer of Public Information), UN Publ. No. 62.I.9 at 13.
[112] J. Claydon, "International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms" (1982), 4 Supreme Court L.R. 287 at 293; W.A. Schabas, International Human Rights Law and The Canadian Charter, 2nd ed., (Toronto: Carswell, l996) at 39.
[113] Schabas, ibid., at 41-42, 55; A.M. Hayward, "International Law and the Interpretation of the Canadian Charter of Rights and Freedoms: Uses and Justifications" (1985), 23 U.W.O. L. Rev. 9 at 10.
[114] For example, see R. v. Videoflicks (1984), 14 D.L.R. (4th) 10 (Ont. C.A.); International Fund for Animal Welfare Inc. v. Canada,[1987] 1 F.C. 244 (T.D); R. v. Keegstra,[1990] 3 S.C.R 697.
[115][1987] 1 S.C.R. 313 at 350.
[116] Hayward, supra note 113.
[117] L.B. Sohn, "The New International Law: Protection of the Rights of the Individuals Rather Than States" (1982), 32 Am. U. L. Rev. 1 at 16-17; See E. Schwelb, "The International Court of Justice and the Human Rights Clauses of the Charter" (1973), 66 Am. J. Int. L. 337 at 348 and Namibia Advisory Opinion of the International Court of Justice (1971), I.C.J. Rep. 78 at paras. 128-29.
[118] J.P. Humphrey, "The Canadian Charter of Rights and Freedoms and International Law" (1985-86), 50 Sask. L. Rev. 13; Schabas, supra note 112 at 36; J.P. Humphrey, "The Universal Declaration of Human Rights: Its History, Impact and Juridical Character" in B.G. Ramcharam, ed., Human Rights: Thirty Years After the Universal Declaration (The Hague: Martinus Nijhoff: 1979) at 21, 28 [hereinafter The Universal Declaration]; M. Haleem, Chief Justice of Pakistan, "The Domestic Application of International Human Rights Norms" in Developing Human Rights Jurisprudence:The Domestic Application of International Human Rights Norms, Judicial Colloquium in Bangalore (London: Commonwealth Secretariat, 1988) 92 at 97.
[119] Humphrey, The Universal Declaration, ibid., at 28.
[120] Trendtex Trading Corporation v. Central Bank of Nigeria,[1977] 1 All E.R. 881 (H.L.) per Lord Denning; A.F. Bayesfsky & M. Cohen, "The Canadian Charter of Rights and Freedoms and International Law" (1983), 61 Can. Bar. Rev. 265 at 275.
[121] Article 160.
[122] The Convention on the Privileges and Immunities of the United Nations was ratified by Malaysia in l957 without reservation.
[123] The Convention on the Privileges and Immunities of the United Nations, Article VI, s.22: Experts…shall be accorded: (b) in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind. This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations.
[124] Differences Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Summary of the Advisory Opinion of 29 April 1999 of the International Court of Justice at 7, at <http://www.ecj-cij.org/icjwww/ipresscom/iPressl999/ipresscom9916bis_inuma_l9990429.htm>
[125]Section 30: All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice…The opinion given by the Court shall be accepted as decisive by the parties..
[126] Supra note 124 at 8.
[127] Insas Berhad & Magapolitan Nominees Sdn Bhd. v. Param Cumaraswamy (29 October 1999) Grounds for Judgment, Unofficial English Translation[unreported].
[128]Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice..
[129] Everyone shall have the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers..
[130] Article 3.
[131] The words 'restrictions' and 'limitations' will be used interchangeably to refer to any derogation on fundamental human rights and freedoms.
[132] The Johannesburg Principles: National Security, Freedom of Expression and Access to Information (November 1996), 3 Media Law and Practice in Southern Africa. The Johannesburg Principles were developed during an international consultation convened by ARTICLE 19, the International Centre Against Censorship in collaboration with the Centre for Applied Legal Studies of the University of Witwatersrand in Johannesburg[hereinafter Johannesburg Principles].
[133] The Siracusa Principles on the Limitations and Derogation Provisions in the International Covenant on Civil and Political Rights (1984) (1985), 7 H.R.Q. 3. The Siracusa Principles were adopted in May 1984 by a group of international human rights experts convened by the International Commission of Jurists, the International Association of Penal Law, the American Association for the International Commission of Jurists, the Urban Morgan Institute for Human Rights, and the International Institute of Higher Studies in Criminal Sciences in Siracusa, Italy to consider the limitation and restriction provisions of the ICCPR.
[134] E.A. Daes: The Individual's Duties to the Community and the Limitations on Human Rights Under Article 29 of the Universal Declaration of Human Rights (New York: United Nations, 1983) at 129, 172; Ibid., Siracusa Principle No.3.
[135] Daes, ibid., at 129, 174.
[136] Daes, ibid., at 73; Siracusa Principle No.7.
[137] Daes, ibid., at 174.
[138] Supra note 133, Siracusa Principle No. 10.
[139] Ibid.
[140] (1979-80), 2 E.H.R.R. 245 (Eur. Ct. of H.R.) at 275, 280; April 26, 1979, Series A, No.30[hereinafter Sunday Times Case, cited to E.H.R.R.].
[141] Handyside v. United Kingdom (1979-80), 1 E.H.R.R. 737 (Eur. Ct. H.R), December 7, 1976, Series A, No.24[hereinafter Handyside Case, cited to E.H.R.R.]
[142] Ibid, at para. 49.
[143] Castells v. Spain, April 23, 1992, Series A, No.236 (Eur. Ct. H.R.).
[144] Supra note 133, Siracusa Principle No.37.
[145] Joint Declaration of the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression (London, under the auspices of Article 19, 26 November 1999).
[146] The terms "in accordance with law", "prescribed by law", and "determined by law" have the same meaning.
[147] Siracusa Principle No.15.
[148] Siracusa Principle No.16.
[149] Siracusa Principle No.17; Sunday Times Case, supra note 140.
[150] Siracusa Principle No.18.
[151] The Sunday Times Case, supra note 140 at para. 49; See also P. W. Hogg, "Section One of the Canadian Charter of Rights and Freedoms" in A. de Mestral, S. Birks and M. Bothe, eds., The Limitations of Human Rights in Comparative Constitutional Law (Cowansville, Que: Yvon Blais, l992) 3 at 12-13.
[152] Malone v. United Kingdom (1984), 7 E.H.R.R. 14 (Eur. Ct. H.R.) at 32; August 2, 1984, Series A, No.82.
[153] Maroufidou v. Sweden (No. 58/1979), U.N. Doc. CCPR/3/Add.1, Vol.II at 318, U.N. Doc. CCPR/C/OP/1 at 80 OR (58/1979), S.D. Vol.1; A/36/40 (1981) at 160.
[154] Y. Dinstein, "The Right to Life, Physical Integrity and Liberty" in L. Henkin, ed., The International Bill of Rights, (New York: Columbia University Press, 1981) 130 at 131, quoted in Common Interpretation of the International Covenant on Civil and Political Rights: Report of the Continuing Federal-Provincial-Territorial Committee of Officials Responsible for Human Rights (June 1993) at 15.
[155] Siracusa Principle No.29.
[156] Siracusa Principle No.30.
[157] Siracusa Principle No.31; Daes, supra note 134 at 177.
[158] Johannesburg Principles, supra note 132, Preamble.
[159] Ibid., Principle 1(d).
[160] Ibid., Principle 1.3.
[161] Ibid., Principle 2(a).
[162] Ibid., Principle 2(b)
[163] Ibid., Principle 6.
[164] Ibid.,Principles 7, 8.
[165] Ibid.; Report of the Special Rapporteur on the promotion and the protection of the right to freedom of opinion and expression, Mr. Abid Hussain, submitted in accordance with Commission on Human Rights Resolution 1998/42: Report on the mission to Malaysia, U.N. Doc. E/CN.4/1999/64/Add.1 (23 December 1998)[hereinafter Report on Malaysia].
[166] Report on Malaysia, ibid.
[167] Ibid.
[168] Ibid.
[169] Supra note 165.
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