Can Zulkifli Noordin be guilty of making a false police report? – Puthan Perumal

For many of us who are not aware, it is an offence to lodge a false police report. The question that arises now is this: was Datuk Zulkifli Noordin, when making a police report against Lembah Pantai MP Nurul Izzah Anwar for statements made in the Dewan Rakyat,  guilty of making a false police report? Let us see.

Zulkifli is a former Kulim Bandar Baharu MP. Therefore, as a member of parliament, he is aware and has full knowledge of all the laws pertaining to parliamentary privileges.

One of the them is Article 63(2) of the Federal Constitution which state:

“No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in any proceedings of either House of Parliament or any committee thereof.”

However, there is Article 63(4) of the Federal Constitution which states:

“Clause (2) shall not apply to any person charged with an offence under the law passed by Parliament under Clause (4) of Article 10 or with an offence under the Sedition Act 1948 as amended by the Emergency (Essential Powers) Ordinance No.45, 1970.”

So, from my understanding of the above, it is simply this. If an MP is charged with an offence under the Sedition Act 1948, he or she cannot claim parliamentary privilege. That seems to be it doesn’t it.

The question is this: who determines what is and what is not seditious? It is the courts. Therefore, if a former member of parliament such as Zulkifli, simply “feels” that a statement made by a member of parliament is seditious, and proceeds to make a police report, he then takes the risk of being guilty of making a false police report, if that statement subsequently turns out to be not seditious, or  better yet, if no one is even charged for sedition. There can be no other way, or else it will be open to abuse.

There is also Section 7 of the Houses of Parliament (Privileges & Powers) Act 1952 which states:

Immunity of members from civil or criminal proceedings for anything done or said before the House

7. No member shall be liable to any civil or criminal proceedings, arrest, imprisonment, or damages by reason of any matter or thing which he may have brought by petition, bill, resolution, motion, or otherwise, or have said before the House or any committee.

The above is also another law pertaining to parliamentary privilege which Zulkifli is fully aware of.

So the risk is this. If a statement is made in either House of Parliament by a member of parliament, and another member of parliament or in this case a former member of parliament  simply disagrees with that statement, he cannot willy nilly make a police report. Why?

Section 182 of the Penal Code states:

“Whoever gives to any public servant any information orally or in writing which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant to use the lawful power of such public servant to the injury or annoyance of any person, or to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand ringgit, or with both.”

Tun Arifin Zakaria, Chief Justice of the Federal Court, in the case of  Lee Yoke Yam v Chin Keat Seng (2013) 1 MLJ 145 had this to say:

“… Such a report [police] is important to set the criminal investigation in motion. With such report, the alleged crime may be investigated and the perpetrator be brought to justice. It is without doubt that public interest should override the countervailing consideration that this may sometime lead to an abuse by a malicious informant. In any event, if a false report is lodged by a complainant, he is liable to be prosecuted for making false report under s177, s182 or s 203 of the Penal Code. That we believe provides a sufficient safeguard against any person from making a false report.”

The problem that Zulkifli may find himself in is this. He was of the view that the statements made by Lembah Pantai MP Nurul Izzah Anwar in the Dewan Rakyat was seditious. That’s his opinion. If the members of the public simply feel that a particular statement made by a member of parliament was seditious, then there will be overwhelming police reports lodged every day, when in actual fact  none of the members of public can be sure or even know what seditious means. So, it cannot go unchecked and unpunished.

Zulkifli took on the risk of not knowing  and yet made a police report which resulted in annoyance, to say the least, to Nurul Izzah. If one is unsure of facts, they say, “jangan pandai pandai buat repot”. So in the end, when Nurul Izzah is not charged under sedition, her parliamentary privilege remains and any wrongful act done in violation of that must be checked.

So, if there is a malicious informant, as stated by the chief justice, that malicious informant must not go unpunished.

I should think that because of the irrelevant and ambiguous nature of the Sedition Act 1948, people should stop simply making police reports alleging that a particular statement or words are seditious when they are not sure themselves. It is just like making an allegation that your handphone was stolen but in actual fact you are not sure if you had misplaced it. If someone was to be put through unnecessary torment because of your uncertainty, you better be prepared to pay for it.

* Puthan Perumal is an advocate and solicitor.