KUALA LUMPUR, 22 April 2009: DAP chairperson Karpal Singh today filed an application at the High Court here for a release from a charge under the Sedition Act.
Karpal, 69, made the application after submitting a preliminary objection to the letter of consent to prosecute dated 11 March, which was signed by Attorney-General Tan Sri Abdul Gani Patail, which Karpal claimed was incomplete and invalid.
In his submission, Karpal who represented himself said the letter of consent should display fully the contents of the charges and not parts of the contents.
On 17 March, Karpal claimed trial to the charge of uttering seditious words at a press conference pertaining to the Sultan of Perak at his office, Tetuan Karpal Singh & Co, Jalan Pudu Lama, here between noon and 12.30pm on 6 Feb.
Karpal was charged under Section 4(1)(b) of the Sedition Act 1948. Upon conviction, he faces a maximum fine of RM5,000 or three years’ imprisonment or both.
According to Karpal, the alleged seditious words in the charge were only mentioned as “Annexure A”. Karpal claimed that it should instead have been stated together with the charge and not as an annexure.
“Legal proceedings under section 4(1)(b) of the Act requires as a pre-requisite written consent of the public prosecutor as specified in section 5 of the act.
The written consent precedes the charge. “If this pre-requisite stands unfulfilled, legal proceedings amount to a nullity. In this regard, what is pertinent is to consider what consent entails,” he said.
Karpal also submitted that the written consent must show on the face of it whether the public prosecutor had applied his mind as required by law along the principles set out herein before issuance of the written consent.
“This court can only consider what is in the written consent without adverting to any extrinsic evidence,” he added.
In his submission, Karpal said further that on the face of the consent it was undisputed that the alleged seditious words were not set out and neither was there any annexure to the consent setting out the alleged seditious words as set out in the form of annexure ‘A’ which contained 10 pages.
“Can it be said under these circumstances, that the issuance of the consent by the public prosecutor is an act of reason, accompanied with deliberation, the mind weighing as in a balance, the good and evil on each side.
“How could he have applied his mind whether or not to prosecute the accused if the consent on the face of it does not set out the alleged seditious words having regard to the fact that at this point of time the charge was yet to come into existence? The charge is formulated only after a valid consent is issued,” he said.
Karpal also said the consent was defective in that reference to alleged utterance of sedition words under section 4(1)(b) did not advert to which of the limbs in section 3(1), the words referred to came within.
Karpal said a seditious tendency was a tendency:
* to bring into hatred or contempt or to excite disaffection against any ruler or against any government
* to excite the subjects of any ruler or the inhabitants of any territory governed by any government to attempt to procure in the territory of the ruler or governed by the government the alteration, otherwise than by lawful means, of any matter as by law established
* to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any state
* to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the ruler of any state or amongst the inhabitations of Malaysia or of any state
* to promote feelings of ill-will and hostility between races or classes of the population of Malaysia
* to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of part III of the Federal Constitution or article 152, 153 or 181 of the Federal Constitution.
Meanwhile, senior federal counsel Datuk Kamaluddin Md Said, in his reply said that he did not see any flaw on the prosecution.
He said the prosecution was the written consent and the defence was arguing about the lack of particulars.
On arguments whether such consent needed particulars and whether the information must put in the written consent, he said: “Is it mandatory or a requirement for the AG (Attorney-General) to have the particularisations of the offence in the written consent?”
He also said that written consent was sufficed for fulfilment of law and not having the particulars would not jeopardise the prosecution’s case.
Kamaluddin said Karpal could answer to the charge and could prepare defence adding that Karpal’s application had no merit.
Judicial Commissioner Azman Abdullah fixed 28 April for decision. — Bernama
