The super virus

And this is what the then Prime Minister Tun Dr Mahathir Mohamad said back in the 1980s. He told Malaysians that the Sultans are not above the law. The Sultans can be chastised and taken to task. Dr Mahathir then told us how even the First Prime Minister, Tunku Abdul Rahman, used to tell the Rulers off (although in private and not publicly like Dr Mahathir did).

THE CORRIDORS OF POWER

Raja Petra Kamarudin

‘Ultra vires’ is a Latin term meaning ‘beyond powers’ — such as beyond the legal power or authority of a person, official or body, or beyond the scope or in excess of the legal power or authority. This term is usually used to refer to acts taken by persons that are taken outside of the powers or authority granted to them by law.

And that is what Karpal Singh questioned: whether the Sultan of Perak had the legal power to remove the Perak Menteri Besar, Nizar Jamaluddin, over three years ago. And for that Karpal was charged for the crime of sedition.

‘Sedition’, in turn, is any speech or behaviour directed against the peace of a state. This would be regarded as an offence that tends to undermine the authority of a state such as an incitement to public disorder or rebellion. In Malaysia, sedition is also used against anyone who ‘incites hatred’ against political leaders, Rulers, or members of their family (such as the wife of the Deputy Prime Minister or Prime Minister).

The Utusan Malaysia reporter, however, who reported what Karpal said, did not understand the meaning of the term ‘ultra vires’. During the trial, the reporter said he thought that Karpal was insulting the Sultan. (Read the news report below).

The question here is: does Karpal, a prominent lawyer, understand the law and knows what the powers of the Sultan are under the Perak State Constitution? I would say he does.

And, as a lawyer representing his client, is Karpal entitled to give his views on points of law?

Under ‘normal’ circumstances he would (although there is a danger of subjudice if he comments on an ongoing trial). However, because he gave his opinion on the act or conduct of a Sultan, the government says he has committed a crime of sedition.

This sends Malaysia back to the time of Henry VIII when to question the king is to question God and therefore is an act of sedition. The government is also telling us that the Rulers are above the law and cannot be questioned.

How far is the Sultan above the law? Can a Sultan commit a crime and escape punishment?

Sultan Ali of Terengganu was sacked in 1945 and replaced with Sultan Ismail. Sultan Musa of Selangor was sacked in 1945 and replaced with Sultan Alam Shah. And both times the only ‘crime’ these two Sultans committed was that they were installed onto the throne by the Japanese during WWII.

The British, however, refused to recognise a Japanese-installed Sultan although they were installed according to the proper Malay customs and traditions (adat istiadat Melayu) and hence were legitimate Sultans. So the British had them removed and replaced.

So, going by history (and the ‘law’ of precedence), Sultans are not above the law. And Sultans not only can be questioned (on points of law) but also can, in fact, be removed if they are perceived as having violated the law (although both Sultan Ali and Sultan Musa did not break any laws).

And this is what the then Prime Minister Tun Dr Mahathir Mohamad said back in the 1980s. He told Malaysians that the Sultans are not above the law. The Sultans can be chastised and taken to task. Dr Mahathir then told us how even the First Prime Minister, Tunku Abdul Rahman, used to tell the Rulers off (although in private and not publicly like Dr Mahathir did).

In fact, Dr Mahathir set up a ‘Special Court’ so that Sultans who misbehave or break the law can be brought to trial. For the first time in history since the French Revolution, Rulers will face trial if they commit an offence.

Did Karpal break the law — that is, commit sedition? I would say no. Karpal did not act ultra vires by going beyond his powers as a lawyer. My opinion is the Sultan of Perak may have instead broken the law (ultra vires) by removing the Perak Menteri Besar unconstitutionally. And it is within Karpal’s right to comment on what he views as the ultra vires act of the Sultan.

But then, hey, I am not a lawyer, so my comments carry no weight. However, I have always said: you need to be smart to be a lawyer, but you don’t need to be a lawyer to be smart. And I think I am smart enough to know what is ‘ultra vires’ and what is ‘sedition’.

Can I get my law degree now?

Karpal ordered to enter defence over sedition rap

(New Straits Times, 21 January 2012) – Lawyer Karpal Singh was ordered to enter his defence for allegedly uttering seditious words against the Sultan of Perak three years ago.

A three-man Court of Appeal bench unanimously said the prosecution had established a prima facie case  against Karpal, the DAP national chairman and Bukit Glugor member of parliament.

“After evaluating every word and sentence by the accused, who is a well known lawyer and MP, we are satisfied that it was uttered to incite hatred among the subjects of the ruler,” judge Datuk Ahmad Maarop said in allowing the appeal by the public prosecutor.

Ahmad, now a Federal Court judge said, the lawyer’s press conference at his office exceeded the boundaries of freedom of speech.

The court has fixed Feb 9 for the case to be mentioned at the High Court in Kuala Lumpur.

Karpal, 71,  was charged with uttering seditious words against the sultan at his legal firm in Jalan Pudu Lama here on Feb 6, 2009.

He was alleged to have said that the removal of Datuk Seri Mohammad Nizar Jamaluddin as Perak Menteri Besar by the sultan could be questioned in a court of law.

Karpal said he had relied on the exception to sedition by pointing out that the ruler was misled.

The High Court on June 11, 2010, acquitted Karpal and trial judge Datuk Azman Abdullah said the prosecution had failed to prove the ingredients under Section 3(1) of the Sedition Act 1948.

Those found guilty can be jailed up to three years or slapped with a maximum fine of RM5,000, or both.

Ahmad, who took about 21/2 hours to deliver the judgment in Bahasa Malaysia yesterday, said the prosecution could bring in a new provision — Section 3(1)(f) — even at the appeal stage although it did not rely on this provision during trial.

“The argument by the defence that it was put in a tactical disadvantage therefore, cannot be accepted,” he said.

Section 3(1)(f) states one would have committed sedition in questioning the right, status, position privilege, sovereignty or prerogative established or protected under the Federal Constitution.

At the High Court the prosecution had relied on Section 3(1)(a) and (d) to prove its case against Karpal.

Ahmad, who sat with Datuk Clement Allan Skinner and Datuk Seri Mohamed Apandi Ali, also said Section 3(1)(f) was constitutional as it did not violate the right of free speech and expression.

He said the intention of an accused was irrelevant for committing a seditious offence.

Ahmad said Karpal repeatedly uttered words to demonstrate that the sultan did not follow the Perak Constitution and had no respect for the law.

A defiant Karpal later said he had the option to take this matter to the Federal Court.

“There is a case authority which states that an accused who is ordered to enter defence must return to the trial court.

“I will challenge this as it is unconstitutional and affects the rights of an accused person.”

Utusan reporter says he thought ultra vires means ‘to insult’

(The Malaysian Insider, 12 August 2009) – Utusan Malaysia reporter Mohd Nizam Mohd Yatim told the High Court today that he thought the phrase “ultra vires” contained in a press release issued by Karpal Singh meant the DAP man was insulting the Perak Sultan.

Mohd Nizam, the prosecution’s first witness in Karpal’s sedition trial, was subjected to a rigorous cross-examination by defence counsel Jagdeep Singh Deo, and appeared rattled by the lawyer’s questions.

At one point the Utusan Malaysia reporter did not appear to even know what Karpal Singh was being charged with.

The reporter was also unable to show a clear understanding of the barrage of questions by Jagdeep on the four-page press statement distributed by Karpal during a press conference on Feb 6 this year.

The DAP chairman and Bukit Gelugor MP was charged with sedition on March 17 for saying Datuk Seri Nizar Jamaluddin’s removal as Perak mentri besar by Sultan Azlan Shah could be questioned in a court of law.

The veteran lawyer-politician was charged in the Sessions Court in KL before judge Mohamad Sekeri Mamat under Section 4(1)(b) of the Sedition Act 1948.

Karpal is further accused of several other seditious statements related to the entire Perak constitutional crisis which began two months ago.

He is accused of committing the crime during a press conference at his law firm here on Feb 6.

During cross-examination, Jagdeep had asked the 38-year-old reporter: “Do you agree that his (Karpal) view on the constitution is sought after?”

Mohd Nizam: “I am not sure.”

Jagdeep: “Do you agree that he (Karpal) is known as a smart laywer?”

Mohd Nizam: “I am not sure.”

Jagdeep: “If you still do not know after eight years working then you should start doing your work properly.”

Jagdeep then proceeded to ask him if he understood the press release since it was in English.

Mohd Nizam: “I only understand it in general and not thoroughly.”

Jagdeep then asked the reporter if he agreed that what was said in the press conference was only an opinion of the constitutional crisis in Perak.

“I only report and do not give opinion,” Mohd Nizam replied.

The answer appeared to irritate Jagdeep who accused Mohd Nizam of being insincere.

Jagdeep then told Mohd Nizam to read part of the press release to the court.

Mohd Nizam: “Although the orders have been confirmed by the Sultan. If the decision is ultra vires then the decision can be adjudicated by the court.”

Jagdeep then asked Nizam to explain what ultra vires means to the court.

Nizam looking confused and replied: “To insult.”

Jagdeep then told Mohd Nizam that his misunderstanding of the word had caused chaos in the country because the word actually means “beyond the powers”.

Mohd Nizam was then asked what were questions were thrown at Karpal during the press conference.

Nizam explained that reporters wanted to clarify if Karpal meant that he was going to bring the Sultan to court.

“So do you agree that Karpal did not say that he will sue?” Jagdeep asked.

“Agree,” Nizam replied.

After the cross-examination, the defence team requested Judicial Commissioner Azman Abdullah for the witness’s cross-examination to be adjourned until it could question another witness on the transcript of the press conference.

Azman then asked the prosecution to call its next witness.

But the prosecution could not bring its next witness, an RTM reporter, because he had failed to show up and could not be contacted.

The trial was then adjourned to tomorrow afternoon.