Did Kit Siang and Karpal commit sedition?
As I have understood from the Internet, all that DAP supremo Lim Kit Siang did was to point out that the biggest mistake that Prime Minister Najib Abdul Razak made in the so-called Perak debacle was to approach the sultan for the appointment of Zambry Abd Kadir as menteri besar.
That step, as we all know, started the political and constitutional impasse in Perak.
Had Najib not seen the ruler but instead advised the Barisan Nasional assemblypersons to obtain a vote of no confidence against Mohammad Nizar Jamaluddin, he would have succeeded and there would not have been a constitutional crisis in Perak.
By his rash action to have Zambry appointed menteri besar when Nizar is still holding the office, he had caused the impasse in Perak. Najib had actually committed a serious political misjudgement. Since then, he had been unable to extricate himself out of the political quagmire which he had orchestrated.
As I have understood from the Internet, all that DAP supremo Lim Kit Siang did was to point out that the biggest mistake that Prime Minister Najib Abdul Razak made in the so-called Perak debacle was to approach the sultan for the appointment of Zambry Abd Kadir as menteri besar.
That step, as we all know, started the political and constitutional impasse in Perak.
Had Najib not seen the ruler but instead advised the Barisan Nasional assemblypersons to obtain a vote of no confidence against Mohammad Nizar Jamaluddin, he would have succeeded and there would not have been a constitutional crisis in Perak.
By his rash action to have Zambry appointed menteri besar when Nizar is still holding the office, he had caused the impasse in Perak. Najib had actually committed a serious political misjudgement. Since then, he had been unable to extricate himself out of the political quagmire which he had orchestrated.
Since Lim’s criticism was only directed at Najib for his personal misjudgment in the whole episode, it would not be possible for any prosecutor to establish a “seditious tendency” under section 3(1) of the Sedition Act.
This is because paragraphs (a) and (b) of the subsection concern a seditious tendency against a ruler or government - so these provisions do not apply to a personal criticism of Najib in his handling of the affair.
Paragraph (c) concerns a seditious tendency against the administration of justice - definitely this does not apply to a criticism of Najib’s handling of the matter.
In paragraph (d), the seditious tendency is to raise discontent and disaffection among the people - so it does not apply.
Paragraph (e) deals with race and class, and paragraph (f) deals with privileges, sovereignty, etc - so they too do not apply to a personal criticism of Najib’s miscalculation of the situation in Perak.
Therefore, since it is impossible, based on the above circumstances, to establish a “seditious tendency” against Lim for his criticism of Najib’s conduct in the Perak debacle, Lim has not committed any offence under the Sedition Act.
As such, what the police did to him was unwarranted and an inexcusable harassment of a respected politician. Such bullying methods by the police should be frowned upon by all right-thinking people.
Cops may have themselves committed sedition
By their bad behaviour in the matter, the police have done a great disservice to the government of the day, which eventually may reflect adversely against them in the next election.
As a consequence of such outrageous act of harassment which the police have perpetrated against the people, the police were, in fact, promoting feelings of ill-will against the BN government.
I wonder if they could have brought themselves within the meaning of “seditious tendency” under section 3(l)(e) which says “(1) A ‘seditious tendency’ is a tendency to promote feelings of ill will ... between different ... classes of the population of Malaysia” - that is, between the people and the BN government? Perish the thought.
But then, why were they doing this to the government? Were they trying to ensure a change of government at the next general election? Your guess is as good as mine.
I remember when I was a serving judge, we would never dream of doing anything that would jeopardise the standing of our employer, the government of Malaysia.
Sometimes we would take a member of the executive in the government, like a minister or a public official, to task if they have done wrong but it must be done in a court judgment.
As a serving judge, it is taboo to criticise the government of the day out of court. But nowadays we find the police jeopardising the position of their employer, the government of the day, by their overt action of harassing some members of the general public.
Don’t they realise that such actions would have an adverse effect on the government come next election? I suppose there are some people who think that it is all right for such an undesirable trend to continue like a cancer among the law enforcement agencies.
And what about Karpal Singh?
All that Bukit Gelugor MP Karpal Singh said was that the sultan can be sued. And the next thing we hear is that he has been charged for the crime of sedition . We all know that Karpal was speaking as a lawyer. And why is it wrong for a lawyer to say someone can be sued?
All of us know that a ruler can be sued in the Special Court, albeit with leave of the court, for certain things, such as in an action in contract or tort, and also he could be prosecuted for certain crimes.
There is no provision in section 3(1) of the Sedition Act which says that for saying that a sultan can be sued is a seditious tendency.
Moreover section 3(2)(a) totally absolves Karpal of any wrongdoing under the Sedition Act for his remark. Section 3(2)(a) says:
3(2) Notwithstanding anything in subsection (1) an act, speech, words, publication or other thing shall not be deemed to be seditious by reason only that it has a tendency:
(a) to show that any ruler has been misled or mistaken in any of his measures.
Rightly or wrongly, Karpal thought that the ruler could be sued by way of a judicial review for what was perceived by him as the unconstitutional appointment of Zambry as menteri besar.
Judicial review was thought by many lawyers at the time to be the proper course to take to correct the mistaken step taken by the ruler in the appointment of a new menteri besar when the incumbent menteri besar is still in office.
So that by virtue of paragraph (a) of subsection (2) of section 3 of the Sedition Act 1948, what Karpal had said about suing the sultan would not be treated as seditious even though the words spoken by him would show that the ruler was mistaken in his measure to appoint another menteri besar when the incumbent is still in office.
NH CHAN is a former Court of Appeal judge famous for his ‘All is not well in the House of Denmark’ comment regarding judicial corruption. He was referring to High Court’s commercial division located in Wisma Denmark, Kuala Lumpur. The quote is based on Shakespeare’s ‘Something is rotten in the state of Denmark’. He now lives in Ipoh.
Previous articles by NH Chan
MB vs MB: Court of Appeal has missed the point
Perak debacle: Silence of the judges
Perak crisis: Judges have let Najib down
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