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Saturday, July 16, 2011

Karpal: Prosecution seeks 'trial by ambush'

Bukit Gelugor MP Karpal Singh has today claimed "a trial by ambush by the prosecution" for bringing up the issue that one cannot challenge the prerogative of the Sultan in its appeal against his acquittal last June on a charge of sedition.

In what seems to be a continuation of the Perak constitutional crisis of 2009, the appeal by the prosecution against the senior lawyer's acquittal is seen by the legal fraternity as an on-going political motive to 'get Karpal', who is also DAP chairperson.

NONEThe issue came about when Karpal complained that the use of Section 3 (1) (f) of the Sedition Act by the prosecution was never brought up during his trial in the High Court in Kuala Lumpur.

Section 3 (1) (f) refers to questions on 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.

Article 181 of the constitution states that one cannot question the prerogative of the Malay Rulers.

Karpal complained that the prosecution in its opening statement at the start of his trial said it would rely on Section 3(1) (a) and (b) but not on (f).

This led to Karpal to complain before the three-member panel of the Court of Appeal that it was a "trial by ambush" by the prosecution in bringing up the matter now.

He said the Sedition Act 1946 was amended in 1971 to include (f), but that should not be allowed in the prosecution's appeal as it did not rely on that sub-section at the outset.

"It had not been relied upon in the High Court trial and it cannot be brought up now as the issue did not arise.

"This is a trial by ambush by bringing up the matter now and relying on it," Karpal argued.

He said if it had been brought up at the High Court, the prosecution and defence could have asked questions to that effect.

“Not having done so but now with the prosecution relying on this (section 3 (1) (f) has put me at a disadvantage,” said the Bukit Gelugor MP, whom the prosecution wants his defence to be called.

'It can only be decided by the Federal Court'

If this was done and the Court of Appeal accepted the prosecution's argument, he said, he would move to declare Section 3 (1) (f) as unconstitutional.

"This is a matter of constitutional importance and it can only be decided by the Federal Court, not by this court," he said.

azlanThe Federal Court, which is the highest court in the land, can decide on matters related to the interpretation of the constitution.

DPP Noorin Badaruddin, who led the prosecution team, only brought up the issue yesterday in its appeal against Karpal's acquittalon a charge of sedition against the Sultan of Perak by the High Court in Kuala Lumpur, which ruled on June 11 last year that the prosecution had failed to prove a prima facie case.

The lawmaker was freed without his defence being called.

karpal singh pc on perak situation 060209 03Karpal was charged with sedition on the content of his Feb 6, 2009, press conference at his office, Tetuan Karpal Singh & Co on Jalan Pudu Lama, where he was reported to have said that legal action could be instituted against the Perak Sultan for his role in the Perak constitutional crisis.

He claimed trial to the charge under section 4(1) (b) of the Sedition Act 1948, which carries a maximum fine of RM5,000 or a jail term of three years, or both, if found guilty, for uttering the seditious words between noon and 12.30pm on that day.

Karpal: I will defend AG

Karpal said it is a known fact that legal action can be taken on the royalty or the Malay rulers.

“There are numerous cases which has been brought in court against the rulers. What I have said in the press conference is that action could be taken against the Sultan of Perak if he acted ultra vires(beyond his powers) on Article 16 of the (in the appointment of the menteri besar) and Article 33 (question arises in interpreting the state constitution) of the Perak constitution.”

“Furthermore, Article 160 of the federal constitution defines public authority to include the Agong and the Malay rulers and they be could subject to such action,” he said.

Karpal said even the initial DPP, Kamaludin (Md Said) who handled the case, acknowledged that action can be taken against the ruler at the start of the trial.

“If what I said in the press conference is seditious, than what the DPP said is also seditious.”

“If this is so the AG (attorney-general) can be charged with abetment (to sedition). However, if that happens and Pakatan Rakyat comes to power I will defend the AG,” he quipped, to laughter in the court room.

This led to one of the three judges to remind Karpal not to make a political speech in court.

Karpal queried that since there was a five-member bench in a British court during a landmark case which had also decided against the Malay rulers, do we move to extradite the (British) judges and bring them here to be charged?

Earlier Karpal's son, Jagdeep Singh Deo, said the High Court judge had commented in the acquittal that the prosecution had failed to show the nexus of the testimony adduced from the witnesses as to the charge of sedition.

“The judge had made this finding, resulting in him not calling for Karpal's defence,” he said.

Prosecution: Karpal incited people

DPP Noorin in her reply and calling for Karpal to enter his defence said the senior lawyer has said he will take legal action against the sultan but he has not.

She said there had been political turmoil in the state at that time, and it had resulted in problems where demonstrations were held.

“Although the demo (in Kuala Kangsar) may not have been as a result of what Karpal said the day before, it had caused unrest resulting in 103 reports lodged against him,” she said.

DPP Noorin said what Karpal had said went against the prerogative of the sultan which is protected by law even under section 3 (1) (f) of the Sedition Act.

This, she said, was raised by Justice Md Raus (Sharif) when he wrote his judgment on the Perak turmoil where the court declared Zambry Abdul Kadir as the rightful menteri besar, where he wrote the prerogative of the sultan cannot be questioned.

However, Justice Md Apandi Ali, who was one of the three-member panel, pointed out that the judgment was made after Karpal had been charged.

DPP Noorin however pointed out that it is still relevant and the judgment resulted in it also invoking section 3(1) (f).

“At the end of the day you cannot raise the sultan's prerogative. You may question it in courts or also in Parliament but this was made in a press conference.

“This was made before journalists who are 'ordinary people' who may not know the actual law ,” she said.

Justice Apandi then asked Noorin what would you reply to Karpal's claims of “trial by ambush” of bringing to attention the matter now and not at the High Court.

Noorin gave a one sentence reply that it can be brought up at any stage, even at the Court of Appeal.

“Furthermore, this case is on appeal and it can be brought up if it is reverted back to the High Court (with Karpal's defence being called),” said Noorin.

The Court of Appeal reserved judgment on the matter as it has brought up a constitutional matter.

Justice Ahmad Maarop, who was leading the panel, said they need time to ventilate the issues at hand.

“We will deliver our decision on a date to be fixed,” he said. The other judge is Justice Clement Allan Skinner. - Malaysiakini

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