The Governing Council of the Inter-Parliamentary Union,

Having before it the case of Mr. Karpal Singh, an incumbent member of the House of Representatives of Malaysia and Chairman of the Democratic Action Party (DAP), which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians following the Procedure for the treatment by the Inter-Parliamentary Union of communications concerning violations of the human rights of members of parliament,

Considering that, in March 2009, Mr. Karpal Singh was charged under the Sedition Act (1948) for allegedly having uttered seditious words against the Sultan of Perak on 6 February 2009, specifically that the Sultan's removal of Datuk Seri Mohamad Nizar Jamaluddin as the Perak menteri besar (Chief Minister) and his appointment of Datuk Seri Dr. Zambry Abdul Kadir to the position, could be questioned in a court of law,

Considering the following information on file: The remarks were made in the wake of a political crisis in Perak; following the elections in March 2008, the State was governed by a three-party opposition alliance that included the DAP; earlier in 2009, three Perak state legislators tendered their resignations, tipping the balance in favour of the National Front coalition; the Sultan of Perak dismissed the alliance’s government and asked the National Front to govern - a decision that was questioned by Mr. Singh,

Considering that, on 11 June 2010, the High Court dismissed the charge against Mr. Singh, having determined that the prosecution had failed to prove a prima facie case, and that, on 20 January 2012, the Court of Appeal reversed this decision and ordered Mr. Karpal Singh to enter his defence,

Considering that, on 21 February 2014, the High Court found Mr. Singh guilty of the charge and on 11 March 2014 sentenced him to the payment of a minimum fine of RM 4,000 ringgit; Mr. Karpal Singh has launched an appeal before the Court of Appeal,

Considering that persons who are convicted of a crime for which the punishment is imprisonment of one year or more or a minimum fine of RM 2,000 cannot be members of parliament,

Considering that, on behalf of the Committee, Mr. Mark Trowell QC has regularly observed the court hearings in this case, which took place before Justice Datuk Azman Abdullah in the High Court in Kuala Lumpur,

Considering the following observations, which Mr. Trowell makes in his report of 15 March 2014:

• The Sedition Act is a relic of Malaysia’s colonial past; it has since 1948 been used to stifle free speech and peaceful assembly; the Act provides that a person can be convicted on the basis that what was said had a “seditious tendency” - not that it did or that the words spoken were true or false; the defendant does not need to intend that the words spoken had one of the results identified in the Act; legislation of this type hardly seems appropriate in a modern democratic nation, which Malaysia claims to be;

• Mr. Karpal Singh’s defence was that the words spoken by him at the press conference were not seditious in character; he claimed he was not challenging the Sultan’s prerogative to resolve constitutional impasses, such as existed at the time in Perak; he was rather questioning the manner in which that power was exercised and suggesting that it was something that could be challenged at law; he was offering a legal opinion, which he was equipped to do as a lawyer experienced in constitutional law, and that it was in the public interest to do so as a member of parliament;

• Mr. Karpal Singh further claimed that the prosecution against him was selective, as it had been against others in the past, and he gave many examples that demonstrated that what he was saying was indeed true;

• During the constitutional crisis concerning the role of rulers in 1993, many things were said by members of the Government that, on any basis, could be interpreted as amounting to acts of sedition under the act; if anything, what was said then was far more serious than Mr. Karpal Singh’s claim that the Sultan’s actions were capable of being tested at law; that is why Mr. Karpal Singh has spent so much time during his trial quoting what was said at the time, reading extensively from Hansard;

• Mr. Karpal Singh also relied on the fact that, since being charged, the Government announced its intention to repeal the Sedition Act; on 11 July 2012, Prime Minister Datuk Seri Najib Razak announced that he intended to repeal the Sedition Act, for which he admitted the Government has been criticized for using against politicians, journalists and non-governmental organisations; he said it would be replaced by a national harmony act, which he claimed would balance freedom of expression with the protection of Malaysia's different cultural and religious groups; Prime Minister Najib announced that he has instructed the Attorney-General to hold a full public consultation before the new legislation is drafted to ensure that the views of all Malaysians were represented; “The Sedition Act represents a bygone era in our country and, with today’s announcement, we mark another step forward in Malaysia’s development; the new National Harmony Act will balance the right of freedom of expression as enshrined in the Constitution, while at the same time ensuring that all races and religions are protected,” he said; the Prime Minister added that: “Our country’s strength lies in its diversity; the new act underlines my commitment to nurturing the spirit of harmony and mutual respect that has been the foundation of our stability and success” (FMT News, 11 July 2012);

• Mr. Karpal Singh has complained that the Attorney-General should not have allowed the trial to proceed and that he should have discontinued the prosecution; that view was supported by many senior lawyers, who expressed their concern that a lawyer could be charged with providing a legal opinion - even though Mr. Karpal Singh did so in a political context;

• The Attorney-General has very wide discretion over the control and direction of all criminal prosecutions; clause 3 of Article 145 of the Malaysian Federal Constitution and Section 376(1) of the Criminal Procedure Code states: “In deciding whether to institute or discontinue a prosecution against an accused, the Attorney General is always guided by legal principles, but the public interest shall also be the paramount consideration”; given the circumstances, one would have thought that public interest justified discontinuing the prosecution; the Attorney-General chose not to do so; he was prepared to withdraw a similar charge against Karpal Singh in 2002, when he thought it was not in the public interest to continue the prosecution, but for some reason did not think it was in the public interest to do so in this case,

Considering that under Malaysian law, Mr. Karpal Singh will be disqualified if the Court of Appeal upholds the sentence or does not reduce the fine to below RM 2,000,

1. Thanks the Malaysian delegation for their cooperation and the information provided;

2. Is appalled that Mr. Karpal Singh was convicted on the basis of remarks that seem to fall squarely within the exercise of the right to freedom of expression and on the basis of a law which the Malaysian authorities themselves have acknowledged is outdated and appears to have been selectively applied; considers that Mr. Singh should never have been prosecuted to begin with and that the Attorney General should have concluded that it was in the public interest to discontinue the prosecution;

3. Is deeply concerned that Mr. Karpal Singh will lose his seat if the conviction is upheld on appeal; decides to closely monitor the appeal proceedings, including possibly through a trial observer; sincerely hopes that the Court of Appeal will give due consideration to Mr. Karpal Singh’s basic right to freedom of expression, respect for which is essential to enable him to exercise his responsibilities as a parliamentarian and a lawyer;

4. Considers that it is imperative for the current Sedition Act to be repealed without delay; underscores that the Malaysian Parliament has a particular responsibility to promote steps to this end, including so as to ensure that its own members can speak out freely without fear of undue legal action;

5. Requests the Secretary General to convey the trial observation report and this resolution to the Attorney General, the parliamentary authorities and the source;

6. Requests the Committee to continue examining this case and to report back to it in due course.

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