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PUBLICATIONS Legal Articles ( Page 3 )

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I        THE POLITICAL BACKGROUND

Karpal Singh, in addition to having been a prominent government critic for over 25 years and previously arrested and imprisoned without charge for over a year,[5] is the lead defense counsel for Anwar Ibrahim, who is charged with sodomy.  The trial of the sodomy charge against Anwar is one of a series of arrests and prosecutions that began when the political struggle between Malaysia’s Prime Minister Mahathir and his popular ex-deputy Anwar came to a head in September l998 with Anwar being fired and arrested.  Anwar’s firing, his arrest and the related prosecutions have caused rifts within the ruling party (UMNO), galvanized the attention of Malaysians and attracted criticism worldwide.  Shortly after Anwar’s arrest, Amnesty International declared him a prisoner of conscience and expressed the opinion that he had been arrested to silence him as a political opponent.

On September 2nd, 1998 Prime Minister Mahathir fired Anwar Ibrahim from his positions as Deputy Prime Minister and Minister of Finance.  Two days later, Malaysian newspapers carried banner headlines announcing that Anwar Ibrahim had been implicated in sodomy.  The former Deputy Prime Minister was then arrested on September 20th, 1998.  Prime Minister Mahathir has relied on the allegations of sodomy as his justification for the arrest and firing of the man who had once been his protégé. He has declared on many occasions that Anwar was guilty of sodomy and morally unfit to govern.  Prime Minister Mahathir has stated publicly on several occasions that he became convinced of Anwar’s guilt as a result of his own extensive investigations that had revealed:

“…incontrovertible proof, that it, [sodomy allegation] is true…Other people cannot very well get the information I got.”[6]

Around the time that Anwar Ibrahim was fired sixteen of his close associates were arrested without charge under the Internal Security Act.  Subsequently, three of these men, after being held incommunicado for periods of up to 126 days, pled guilty to having been sodomized by Anwar.  All three of these men claim that the police and others in authority forced them, through deprivation, torture and brutality to give false confessions and to enter guilty pleas.  While the authorities deny the accusations of torture and brutality, they do not deny that the men pled guilty without independent legal representation. There has not been any public inquiry into these extraordinary allegations, notwithstanding the fact that the allegations have been accepted as true by international human rights organizations. Nor has there been any public inquiry into the allegation that Anwar Ibrahim is the victim of a political conspiracy to silence him.

Subsequent to his arrest, Anwar was charged with a number of offences all of which relied on the sodomy and adultery allegations. The first charges against Anwar to be brought to trial[7] were based on allegations that he had directed the police to obtain written statements from two people denying the written accusations of sodomy and sexual misconduct they had previously made against him.  The essence of the four Ordinance 22 charges was that Anwar, in so directing the police, had corruptly misused his office to obtain the personal benefit of avoiding either embarrassment or criminal prosecution.  Sodomy and adultery allegations were a material ingredient of these charges.  During the trial, these allegations of sexual improprieties attracted so much criticism, ridicule and incredulity that the prosecution, at the close of their case, amended the charges to remove the sodomy and adultery issues from the trial.  The trial judge, Augustine Paul J., then forbad defense counsel from referring to any of the extensive evidence on these allegations in their defense.  In the early stages of this trial one of the defense lawyers left the defense team after having been summarily sentenced to 3 months in jail for contempt.  By the end of the trial all the remaining defense lawyers had been threatened with contempt citations.

Anwar Ibrahim’s conviction on what remained of the Ordinance 22 charges in April l999 did little to either undermine Ibrahim’s popularity or to support the widely published sodomy allegations.  That trial was widely criticized by human rights organizations and other commentators as has been the Malaysian Court of Appeal’s dismissal of the appeal.

Karpal Singh’s defense of Ibrahim has been vigorous.  In the fall of l999 he gave notice of his intention to call Prime Minister Mahathir as a witness. There is no doubt that Mr. Singh’s capable and ‘full’ representation of Anwar Ibrahim may well undermine public confidence in his client’s guilt irrespective of the verdict.  The political background to the trial of the sodomy charge against Anwar Ibrahim coupled with the unresolved allegations of an underlying political conspiracy give rise to a concern that Karpal Singh may have been charged with sedition to hamper the defense of Anwar Ibrahim.

I.1   The Circumstances of the Charge

The sedition charge is based on the allegation that Karpal Singh, on September 10th 1999, while in court representing Ibrahim, expressed the concern that somebody might be trying to murder his client.  At the time, trial judge Justice Arifin Jaka, Karpal Singh and lead prosecutor Attorney General Tan Sri Mohtar Abdullah were discussing a report that seemed to indicate that Ibrahim, who had been in custody for over a year, was suffering from arsenic poisoning.  Karpal Singh was calling for an inquiry into his client’s in-custody treatment; the Attorney General, as lead prosecutor, was disavowing the need for an inquiry and suggesting Anwar Ibrahim had perhaps been poisoned, not by people in high places, but by supporters.

One year earlier Mr. Singh’s client had been severely beaten while in custody by a ‘person in a very high place’, the Malaysian Chief of Police, Abdul Rahim Noor.  News of Anwar’s injuries was met with outcries for a public inquiry from lawyers and others.  Prime Minister Mahathir initially responded to the demands for a public inquiry by suggesting that the injuries might have been self-inflicted.  An inconclusive internal police inquiry failed to silence national and international demands for a public inquiry.  The conclusions of the resulting Royal Commission of Inquiry , namely that Anwar Ibrahim’s injuries had been caused by the Malaysian Chief of Police Abdul Rahim Noor who had delivered potentially lethal blows to Anwar while he was in custody, bound and blindfolded, are a source of continuing embarrassment to the government of Malaysia.  However, it was never suggested in l998 that it was seditious to use strong language to call for an inquiry into Anwar’s in-custody treatment.

I.2   The Charge

The charge against Mr. Singh was laid on January 12th, 2000, four months after the date upon which the alleged statements were made.   

The English translation of the charge reads:

re “Public Prosecutor - vs. - Karpal Singh s/o Ram Singh

That you on 10 September, l999 at about 9:10 a.m. in the High Court Kuala Lumpur in the Federal Territory of Kuala Lumpur in trial Public Prosecutor - vs. - Dato’ Seri Anwar bin Ibrahim (WPPJ45-51-98) and Public Prosecutor - vs. - Sukma Darmawan Sasmitaat Madja (WPPJ45-26-99) during the course of your submissions over the issue in relation to allegation of arsenic poisoning of Dato’ Seri Anwar bin Ibrahim did utter the following seditious words, to wit,

‘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.’,

and you have thereby committed an offence under section 4(1)(b) of the Sedition Act, 1948 (Act 15) punishable under section 4(1) of the same Act.”

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