Report by YB Karpal Singh ( Ahli Parlimen Bukit Gelugor) and YB Sivarasa Rasiah ( Ahli Parlimen Subang ) as members of the Committee of Privileges on the Motion referred by the House on 22.4.10 in respect of the Hon. Leader of the Opposition Dato Seri Anwar bin Ibrahim (Member for Permatang Pauh )
1. This report is presented by us to the Committee of Privileges [“Committee”] in accordance with Standing Order 83(12)(a) of the Standing Orders of the Dewan Rakyat based on our participation as members of the Committee in the 4 meetings held in respect of the matter referred on 17.5.10, 8.6.10, 9.6.10 and 3.12.10, in order to be presented to the House as part of the report made by the Committee to the House under Standing Order 86(1).
2. The report is presented vis a vis the inquiry by the Committee pursuant to the Motion to refer Dato Seri Anwar Ibrahim [“DSAI”], Leader of the Opposition of the Malaysian Parliament, to the Committee which was presented by Minister in the Prime Minister’s Department, Dato Seri Mohamed Nazri bin Abdul Aziz [“Minister Nazri”] to the House and approved by the House on 22.4.2010 despite a walk-out by opposition members.
2.1. The motion was raised by Minister Nazri for the following statement made by DSAI in the Dewan Rakyat on 17.3.2010.
“1999 Satu Israel. 2009 APCO menasihati Perdana Menteri Dato’ Sri Mohd Najib 1Malaysia”
2.2. The statement, when read in context, suggests that APCO Worldwide [“APCO”] advised the Prime Minister in respect of his 1Malaysia concept.
3. The purpose of this report is to highlight to the members of the House the travesty of justice that is being perpetrated against DSAI by refusing him the right to:-
3.1. have legal counsel present to assist him in his defence;
3.2. hear the evidence preferred against him and test the evidence through cross examination; and
3.3. to call witnesses and to put forward his own defence; and
3.4. to also present our views of the implications of finding DSAI guilty of breach of privilege in the circumstances of this case.
4. It will be apparent from the following report that there has been an outrageous and flagrant denial to DSAI of the right to a fair hearing before the Committee by the Speaker of the Dewan Rakyat (in his capacity as the Chairman of the Committee) [“Speaker”] and the members of the Committee who are aligned to the ruling Barisan Nasional coalition, and who collectively form a majority in the Committee. For the record, the members of the Committee are:-
4.1. Speaker of the House
4.2. YB Beluran - Barisan Nasional ( also Deputy Speaker)
4.3. YB Muar - Barisan Nasional
4.4. YB Alor Gajah - Barisan Nasional
4.5. YB Batang Sadong - Barisan Nasional
4.6. YB Subang – Pakatan Rakyat
4.7. YB Bukit Gelugor – Pakatan Rakyat
5. This is an appeal to the members of the House to put aside party loyalty and to be objective in passing judgment on a fellow member of the Dewan Rakyat. As members of this august house, we must always act in accordance with the principles of natural justice and procedural fairness.
6. We must also be mindful that these proceedings pose a grave and unprecedented threat to the right to freedom of speech in the Dewan Rakyat. If the statement made by DSAI is deemed to be a breach of privilege, then we will be doing serious and permanent damage to the fundamental right of free speech enjoyed by members of Parliament and without which Parliament cannot function meaningfully. It will be a permanent stain on the public image of the Malaysian Parliament here and throughout the world. We will say more on this when we discuss the merits of the motion further on.
Factual Chronology
7. The material events are briefly summarised below. The description of what happened at Committee meetings is not exhaustive, and for a full account, reference should be made to the minutes.
| Date | Event | Annexure |
| 17.3.2010 | DSAI makes statements in the Dewan Rakyat regarding the links between APCO, the Malaysian Government and the 1Malaysia concept
| Refer Hansard 17.3.2010 |
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| 22.3.2010 | YB Kota Belud alleges that DSAI has misled the Dewan Rakyat in contravention of Rule 36(12) of the Standing Orders.
Minister Nazri speaking on behalf of the government proposes that DSAI be given 1 week to explain himself and to correct any mistaken factual assertions.
| Refer Hansard 22.3.2010 |
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| 30.3.2010 | DSAI provides a detailed explanation to the Dewan Rakyat setting out the basis of his statements vis a vis the links between APCO, the Malaysian Government and the 1Malaysia concept, as well as the links between APCO and the Israeli government.
He further challenges Prime Minister Najib (“PM”) to categorically deny that any of the individuals linked to APCO or its associated firms were involved in developing the concept of 1Malaysia. No response was forthcoming from the PM.
| No 1. Extract of Hansard 30.3.2010 |
| 22.4.2010 | Minister Nazri speaking on behalf of the Government raises a motion to refer DSAI to the Committee for misleading the Dewan Rakyat by making the following statement:-
“1999 Satu Israel. 2009 APCO menasihati Perdama Menteri Dato’ Sri Mohd Najib 1Malaysia”.
The motion further requests the Committee to recommend an appropriate punishment for DSAI, to be passed by the Dewan Rakyat in this matter [“Government’s Motion”].
Upon clarification sought by other members of the Dewan Rakyat on whether the Government’s Motion presumes that DSAI is guilty of misleading the Dewan Rakyat, the Speaker ( at pages 5 and 11) states that the following procedure will be followed in respect of a referral to the Committee: a) Government’s Motion must first be debated and passed by the Dewan Rakyat; b) If passed, the Committee will then investigate the matter by calling all relevant witnesses including the relevant Members of Parliament and looking at all relevant documents; c) The Committee will make their conclusions and recommendation to the Dewan Rakyat d) The Dewan Rakyat will then debate on whether the recommendations are to be accepted.
| No: 2 Extract of Hansard 22.4.2010 |
| 17.5.2010 | 1st Committee Meeting It was agreed by the members of Committee that all relevant witnesses will be called. DSAI was not informed of the 1st Committee Meeting and therefore was not present.
| No: 3 (Agenda for PRPC Meeting) |
| 7.6.2010 | DSAI sends a letter to the Speaker confirming ( in response to the letter dated 25.5.10 from the Secretary of the Committee) that he will be present and give evidence before the Committee hearing on 8.6.2010. He also requests to be represented by counsel, for the hearing to be public, to be allowed to present a list of his witnesses, and asks for a list of the witnesses that the Committee will call. | No: 4 (DSAI’s letter dated 7.6.2010) |
| 8.6.2010 | 2nd Committee Meeting The Committee considers the application by YB Puchong and other members of the Dewan Rakyat to be present during the proceedings of the Committee. The request is rejected by a vote 4:2 (four Barisan National (“BN” ) members ie YB Alor Gajah, YB Batang Sadong, YB Beluran ( Deputy Speaker) and YB Muar voted to reject; we, the two Pakatan Rakyat members voted to allow permission to be present).
We supported the application on the basis that it is established practice on the authority of Erskine May “Parliamentary Practice” ( see page 755, 23rd Edtn, Lexis-Nexis Butterworths ) to be entitled at be present at the sittings of Committees at which the public is not admitted, unless their presence obstructs the business of the committee. We saw no reason for such obstruction to take place.
DSAI is then called in and makes an application to be represented by counsel. The application is rejected on the basis of an identical vote as above denying the request for legal representation. The four BN members voted to reject representation by counsel; we voted in favour. However DSAI is told by the Speaker that he may have his counsel present for advice.
| No 5 – Erskine May page 755 |
| 8.6.2010 | We were informed later that day that the Committee intends to start proceedings on 9.6.2010 by examining Minister Nazri and a representative from APCO.
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| 8.6.2010 | DSAI sends a letter to the Speaker confirming that the Committee had agreed to allow DSAI to have legal counsel present to advise him. He also stated that he was informed that the Committee was proceeding in his absence the next day Wednesday 9.6.10 at to hear witnesses and requested that he be allowed to attend the proceedings on 9.6.2010 with his counsel for the purpose of having access to the evidence given by those witnesses and the right to cross-examine them. | No: 6 (DSAI’s letter dated 8.6.2010) |
| 9.6.2010 | 3rd Committee Meeting It was stated in the agenda for the 3rd Committee meeting that Minister Nazri and one Brad Staples, Chief Executive of APCO for Europe, Middle East and Africa [“APCO CEO”] were to be called before the Committee to give their testimony.
Despite not having been informed officially of the meeting, DSAI together with his legal counsel, Dato Ambiga Sreenevasan, present themselves at the meeting. DSAI proceeds to renew his application to be represented by counsel. His counsel’s request to speak on his behalf and address the Committee only on this issue is denied by the Speaker.
Permission to allow DSAI to be represented by counsel was again refused after an identical vote as earlier - 4:2 against.
The Speaker however agrees to allow DSAI himself to be present when witness evidence is given before the Committee and further to cross examine the witnesses. DSAI leaves the meeting.
After some heated exchanges at the meeting, the meeting is then adjourned to a date to be fixed by the Speaker.
| No: 7 (Agenda for Committee Meeting) |
| 9.6.2010 | DSAI sends a letter to the Speaker setting out a list of witnesses he wants called to give testimony before the Committee in accordance with Standing Order 83(9).
| No: 8 (DSAI’s letter dated 9.6.2010) |
| 20.8.2010 | APCO CEO delivers a letter dated 19.8.10 to the Speaker alleging inter alia that:- a) he had travelled from Brussels to Kuala Lumpur to testify before the PRPC in June 2010 but he was denied the opportunity to do so; b) APCO provides communication support to the Government of Malaysia; and c) APCO was not involved in the creation of 1Malaysia or 1Israel.
For unknown reasons, this letter is not brought to the immediate attention of the Committee but is only placed before the Committee on its next (4th) meeting on 3.12.10 fixed by notice dated 30.11.10.
| No: 9 (DSAI’s letter dated 19.8.2010) |
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| 3.12.2010 | 4th Committee Meeting Notice was given to us by letter dated 30 November 2010 which did not intimate any specific agenda for the meeting. DSAI was not informed of the meeting and therefore was not present.
The agenda shown on the morning of the meeting merely showed a discussion to take place “Perbincangan mesyuarat Jawatankuasa ...”
Members of the Committee were shown the abovementioned letter by APCO CEO dated 19.10.2010 addressed to the Speaker.
YB Muar proposed that the Committee make a decision on the matter based on the letter from the APCO CEO and answers by Minister Koh Tsu Koon and Minister Nazri dated 22.10.09, 18.3.10 and 29.3.10 on behalf of the Prime Minister’s Department to 3 questions by members of the House (“PM’s Dept answers” ) without hearing any testimony from any of the proposed witnesses as decided earlier. He is of the view that these documents are sufficient for the Committee to make a decision.
The Speaker also raised the matter of Standing Order 82 and specifically 82(11) .
We objected on the basis, inter alia, that the Speaker had given assurances in the Dewan Rakyat that the Committee will investigate the matter by calling all relevant witnesses including the relevant Members of Parliament and looking at all relevant documents, The Committee had also considered the matter and made decisions to call witnesses including DSAI. The mere fact of a letter by APCO could not be used as the basis to change all that and violate fundamental rules of fairness and natural justice. The notes of proceedings of the Committee will show the arguments made by various members.
YB Muar’s motion was put to vote and passed by an identical 4:2 vote as earlier.
We informed the Speaker that we were no longer able to associate ourselves further with the proceedings in view of the outrageous violation of procedural unfairness and gross injustice being perpetrated on DSAI by denying him his basic right to be heard. We then withdrew from the proceedings at that point. | No:10 Notice dated 30.11.10
No 11 Agenda for 4th meeting |
Procedural Unfairness
8. From the foregoing chronology, it is evident that the Committee has denied DSAI the right to:-
8.1. have legal counsel present to assist him in his defence;
8.2. hear the evidence preferred against him and test the evidence through cross examination; and
8.3. call witnesses and to put forward his defence.
8.4. Hear him in person on the facts and issues raised by him
Right to legal counsel
9. DSAI had made an application to the Committee to be represented by legal counsel present to assist him in his defence during its proceedings.
10. DSAI’s application was justified in view of the fact that the Government’s Motion was a motion that DSAI had acted in contempt of the Dewan Rakyat for allegedly misleading the Dewan Rakyat.
10.1. It is significant that if found guilty, the punishments that could be imposed on DSAI include imprisonment for up to 60 days[1]
10.2. The fact that Government’s Motion could attract such sanctions being imposed on DSAI in the course of carrying out his Parliamentary role as the Leader of the Opposition in itself clearly indicates the necessity of affording DSAI the full opportunity to defend himself.
11. It is pertinent to note that the Standing Orders specifically provide that DSAI may be represented by legal counsel in proceedings before the PRPC, provided that permission is first granted by the Committee.
11.1. Rule 83(7A) of the Standing Orders states that any party whose conduct forms the subject of an investigation by a Select Committee may be represented by counsel, if permission is granted by the Select Committee.
12. Refusing DSAI the right to be represented by counsel therefore made a mockery of these provisions. If the discretion to allow legal representation was not to be exercised in the circumstances of this important case involving no less than the Leader of the Opposition and with such serious implications for freedom of speech in Parliament, when would it ever be exercised?
13. It is indicative on 9.6.10 the Speaker refused to even allow DSAI’s legal counsel, Dato Ambiga Sreenevasan, who was present at the proceedings, to address the Committee on the importance of allowing DSAI the right to be represented at the proceedings, prior to the vote taking place.
14. Given the charge proffered against DSAI for contempt could attract penal sanctions, the charge should be viewed as analogous to a criminal charge in a Court of Law. As such, DSAI should have properly been afforded full right and opportunity to defend himself against such a charge as is provided for in criminal offences. This is a basic right protected under the Federal Constitution as well as International Convention.
14.1. Articles 5(1) and 5(3) of the Federal Constitution provides that any person charged for a criminal offence shall be allowed to consult and be defended by a legal practitioner of his choice.
14.2. Article 14(3) of the International Covenant on Civil and Political Rights states that anyone charged with a criminal offence must be entitled to the minimal guarantee of, inter alia, having facilities for the preparation of his defence and to communicate with counsel of his choosing.
See: Annexure 12
International Covenant on Civil and Political Rights
15. In fact, in most modern Parliaments with a meaningful system of parliamentary democracy in place, the right to be represented by legal counsel when appearing before a Select Committee is guaranteed.
15.1. For example, in the New Zealand Parliament, any person giving evidence before a Select Committee is entitled to consult legal counsel throughout the proceedings. Further, their legal counsel is even entitled to submit and raise objections on their behalf, with permission of the Select Committee.
15.2. Here DSAI was not just appearing as a mere witness, he was in fact the alleged offender whose conduct was the subject matter of the inquiry.
See: Annexure 13
Natural Justice before Select Committees
Parliament of New Zealand
16. We are of the view that there were no good reasons at all given by the Speaker or any of the members of the Committee who voted to refuse such permission.
17. We accept that the Committee had on 8.6.10 decided to allow DSAI the limited right of having his counsel present to advise him where necessary. However that is not the right provided under Standing Order 83(7A).
18. In any event, this serious denial of DSAI’s right to have legal counsel was rendered academic when the Committee on 3.12.10 took the even more draconian decision of denying him the right even to appear in person, produce evidence and to call witnesses to defend himself.
Right to hear and test evidence
19. DSAI has also been denied the right to hear the evidence led against him as well as to test such evidence.
19.1. This is despite having received assurances from the Speaker during the proceedings in the House on 22.4.10 and at the Committee’s 2nd and 3rd Meetings on 8.6.2010 and 9.6.10 that he would be allowed to hear all witness testimony given before the Committee and the opportunity to ask questions of the witnesses .
20. The only “evidence” available against DSAI at the point when we withdrew from the proceedings consisted of:-
20.1. the 3 PM’s Department answers made by Minister Koh and Minister Nazri; and
20.2. the letter dated 19.8.2010 from the APCO CEO.
See Annexure 14 – 3 PM’s Department answers by Minister Koh and Minister Nazri dated 22.10.09, 18.3.10 and 29.3.10.
21. It is incredulous that the majority of the Committee is wholly content on accepting the truth and accuracy of all assertions made by the APCO CEO without the need to hear him in person or pose any further questions to him.
21.1. In this regard, it must be noted that the assertions made by the APCO CEO were not statements made under oath and by any reasonable view, could clearly be regarded as self-serving statements given the reality of their contract with the Government and the huge sums they were being paid.
21.2. The Committee had full power under section Section18 of Houses of Parliament ( Privileges and Powers ) Act 1952 to require witnesses to testify under oath
See Annexure 15
21.3. It must also be noted that as Committee members ourselves, despite having questions to pose to him, we were denied the opportunity to do so.
21.4. We also note that APCO had at least on 2 occasions made demonstrably false statements as follows:
21.4.1 First, on 30.3.10 when Bernama published their statement denying that they worked with the Israeli government This was exposed as false in a Straits Times article dated 31.3.10 where it was exposed that based on US Justice Department records, they had done work for the Israeli government in 1992.
– See Annexure No: 16
Bernama article dated 30.3.10 and Straits Times dated 31.3.10
21.4.2 The second false statement is contained in APCO’s letter dated 19.8.10 where the writer CEO Brad Staples who was to attend as a witness makes the false statement in the 2nd paragraph ”... I was not permitted to testify”. This is completely false. He knew or ought to have known that the proceedings for the day were adjourned to a date to be fixed. He would have called to testify on that date. No question of the Committee refusing to hear him ever arose.
21.5 Based on these two demonstrably false statements made by APCO, the credibility of the letter was clearly in question. It was not reasonable to simply accept the bare assertions made there that they had nothing to do with the creation of 1 Malaysia. It would be obvious to any reasonable person/s that APCO’s statement was self-serving and could be easily procured at the request of the Government.
21.6 With regard to the answers on behalf of the PM’s Department by Ministers Koh and Nazri’s, we note that none of them do not anywhere unequivocally state that APCO had no involvement in the development of the 1 Malaysia concept whatsoever. This is similar to the PM’s silence to the challenge issued by DSAI to categorically deny that any of the individuals linked to APCO or its associated firms were involved in developing the concept of 1Malaysia. No response has been made to date to our knowledge from the PM.
21.7 There is also no specific denial in Minister Nazri’s answer to YB Tanah Merah’s assumption in his question that APCO was paid by the Prime Minister to launch the 1 Malaysia concept. Minister Nazri’s answer seems to focus on “promotion” and avoids any reference to the reference to “launch” in the question.
21.8 Their answers repeat that no communications company either local or foreign was appointed to specifically to promote the 1Malaysia concept but assert at the same time that APCO is appointed to implement “comprehensive communication services”. It would be an obvious question as to how one would separate the promotion of the 1Malaysia concept from providing comprehensive communication services. It is also clear from their answers that APCO is the only company ( whether local or foreign ) that is playing the major role in handling comprehensive or overall communications for the Government. We also note that both Ministers also avoided answering the portion of the questions asking to state the cost of such services although subsequently in the House Nazri has confirmed that cost of APCO’s services to be in the region of RM 76 million.
21.9 By denying DSAI his right to cross-examine all these individuals, the Committee has severely handicapped DSAI’s ability to defend himself. DSAI will not be able to put forward any questions to them to test the accuracy of their statements. This is a blatant breach of the rules of natural justice and clearly unfair to him.
Right to call witnesses and right to be heard
22. It is also significant that DSAI has been denied his right to call his own witnesses in this matter and the right to be heard himself.
23. This is wholly inconsistent with:-
23.1. the representations made by the Speaker to the Dewan Rakyat on 22.4.2010 wherein he had assured the house that the Committee will investigate the matter by calling all relevant witnesses including the relevant Members of Parliament and looking at all relevant documents, and
See: Annexure No: 1
Hansard 22.4.2010, pages 5 and 11
23.2. the decision by the Committee at the 1st Meeting on 17.5.2010 that all relevant witnesses will be called.
24. As regards the right to call witnesses, it is significant that Rule 83(9) of the Standing Orders expressly allows for DSAI to call such witnesses.
24.1. In compliance with the procedure prescribed under Rule 83(9) of the Standing Orders, DSAI had written to the Speaker on 9.6.2010 giving notice of the witnesses he intends to call to give evidence before the PRPC.
See: Annexure 7
DSAI’s letter dated 9.6.2010
24.2. It must be noted that the Committee does not possess a discretion to refuse to hear these witnesses save and unless the PRPC is of the view that the witnesses are recalcitrant or will be providing irrelevant evidence (Rule 83(11) of the Standing Orders).
24.3. However, the Committee cannot take the position that DSAI’s witnesses are recalcitrant or their evidence is irrelevant as DSAI’s letter was never put before the Committee and the list of witnesses was never discussed by us.
24.4. At the very least, the Speaker should have brought DSAI’s letter enclosing the list of witnesses to the attention of the Committee for collective discussion to determine the nature of evidence to be given by these individuals and its relevance to the proceedings at hand.
24.5. Under Article 14(3) of the International Covenant on Civil and Political Rights, another minimal guarantee that must be afforded to anyone charged with a criminal offence is to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses of his behalf under the same conditions as witnesses against him.
See: Annexure 14
International Covenant on Civil and Political Rights
24.6. The reliance by the Speaker and the Committee on Standing Order 82(11) that the Committee has a discretion to refuse to hear any irrelevant evidence was completely misplaced. At the very least DSAI should have been heard in person as to what evidence he required from those witnesses and why so that the Committee could then decide whether the evidence was relevant before the Committee could legitimately refuse to call them.
25. The refusal by the majority of the Committee to call the witnesses requested by DSAI, or even consider their suitability to give evidence, is in clear contravention of the Standing Orders. The further failure to treat DSAI’s witnesses in the same manner as the other witnesses whose evidence had been taken into consideration is clearly bad faith on the part of the majority of the Committee.
26. DSAI had alleged in his speeches in the House that the relationship between prominent persons in APCO, its related firms and advisors and the persons involved in the 1 Malaysia program in Prime Minister Najib’s office had begun well before the signing of the contract in August 2009 between APCO and the Government. He had demonstrated sufficient circumstantial evidence in his speeches in Parliament by stating, inter alia, that credible media reports asserted that APCO was helping Najib craft his 100 days strategy including his 1 Malaysia message and other initiatives. It was similarly reported that APCO had an official based in Najib’s office since the early days of the administration ( see Hansard 30.3.10 page 34, Annexure 1). It is our view that by any reasonable standard, this was more than a sufficient basis for the assertion that APCO was in fact involved in the 1 Malaysia message. This is also reinforced by the fact that the Government officially engaged APCO from August 2009 with the assignment of “comprehensive communications” for “a broad range of reform initiatives” ( see Hansard 30.3.10 page 33). It is now publicly known that the Government is paying up to RM 76 million for APCO’s such services.
27. In terms of APCO’s relationship with the Government of Israel, DSAI had in the House set out specifics of the contractual relationship between APCO and Israel and also given details of the close links between key persons in APCO and senior figures in the intelligence and defence establishment of Israel. He also raised concerns about using a firm such as APCO given its reputation for servicing clients such as former Nigerian dictator Sani Abacha, Kazakhstan President for life Nursultan Abishuly Nazarbayev amongst others. Raising these issues was clearly within his role and responsibility as Leader of the Opposition given that Malaysia has historically been a strong critic of Israel particularly for its treatment of Palestinians. His purpose in raising the issue was to caution the Government with regard to its relationship with APCO given APCO’s proven antecedents.
28. It would be obvious to any reasonable tribunal investigating the truth of DSAI’s allegation that APCO advised on 1Malaysia that it was fundamental to such an investigation to allow the relevant witnesses to such facts as asserted by DSAI to be called and examined upon oath. The Committee has full powers to do so.
29. Only after examining such witnesses could the Committee reasonably formulate an opinion as to whether there was sufficient facts established or otherwise to show a basis for DSAI’s assertion that APCO advised on 1Malaysia. Similarly, only then could it decide whether APCO’s bare denial in its letter of 18.8.10 that it was not involved in 1 Malaysia was a credible denial.
30. It is a sacred right protected under our Federal Constitution and indeed is one of the hallowed tenets of the principles of natural justice that no man should be condemned without the right to being heard.
31. This principle is based on the latin maxim Audi Alteram Partem – which at its simplest means - to hear the other side. It is a cherished principle of law which has had its roots since the times of ancient Greece. As early as the 16th Century, English judges have made express reference to the maxim above. It is best summed up by the famous words of Fortescue J in 1723 in Dr Bentley’s Case that all law students are taught when reading law:
"… even God himself did not pass sentence upon Adam before he was called to make his defence”
32. The Committee must be aware of the dangerous precedent it is setting by attempting to condemn DSAI without affording him the right and opportunity to be heard particularly in the special facts and circumstances of the allegation made against him. Factual issues are being hotly disputed. They have to be investigated.
33. The refusal by the majority of the Committee to allow DSAI the right and opportunity to:-
33.1 have legal counsel present to assist him in his defence;
33.2 hear the evidence preferred against him and test the evidence through cross examination; and
33.3 call witnesses and to put forward his own defence.
smacks of mala fides, is in blatant contravention of natural justice and will render any decision made by the Committee completely unsafe and arbitrary.
34. As analysed above, it is impossible for any reasonable and unbiased tribunal to find DSAI guilty of misleading the house under Rule 36(12) of the Standing Orders on the basis of the Government’s Motion on the scant evidence ( if one may call it evidence in the first place) in the form of the letter from APCO and the answers given by Ministers Koh and Nazri.
The grave implications for freedom of speech for Parliamentarians
35. As stated above, we withdrew from the proceedings at the 4th meeting of the Committee after the majority of the Committee decided to proceed with the inquiry without calling any witnesses including DSAI in his defence. As a matter of conscience, we could not associate further with proceedings that were so flawed and unfair and were now being rushed to ride roughshod over the basic rights of DSAI with the sole aim of arriving quickly at a finding of guilt and a recommendation for punishment. The majority of the Committee were no longer reasonable and objective inquirers but were now clearly acting mala fide for ulterior purposes.
36. We have no illusions that a finding of guilt will be returned by the remaining members of the Committee in respect of the motion referred by the House on DSAI. We have no knowledge however of the punishment that the majority of the Committee has recommended.
37. These proceedings were started because DSAI made certain statements in the House with regard to the relationship between APCO and the Government and the Government of Israel. What seemed to sting was the reference to APCO advising on 1Malaysia which is now the “offending sentencee’ in the matter referred to the Committee by the House.
38. As stated above, DSAI had alleged in his speeches in the House that the relationship between prominent persons in APCO, its related firms and advisors and the persons involved in the 1 Malaysia program in Prime Minister Najib’s office had begun well before the signing of the contract in August 2009 between APCO and the Government. He had demonstrated sufficient circumstantial evidence in his speeches in Parliament by stating, inter alia, that credible media reports asserted that APCO was helping Najib craft his 100 days strategy including his 1 Malaysia message and other initiatives. It was similarly reported that APCO had an official based in Najib’s office since the early days of the administration ( see Hansard 30.3.10 page 34. It is our view that by any reasonable standard, this was more than a sufficient basis for the assertion that APCO was in fact involved in the 1 Malaysia message. This is also reinforced by the fact that the Government officially engaged APCO from August 2009 with the assignment of “comprehensive communications” for “a broad range of reform initiatives” ( see Hansard 30.3.10 page 33). It is now publicly known that the Government is paying up to RM 76 million for APCO’s such services.
39. In terms of APCO’s relationship with the Government of Israel, DSAI had in the House set out specifics of the contractual relationship between APCO and Israel and also given details of the close links between key persons in APCO and senior figures in the intelligence and defence establishment of Israel. He also raised concerns about using a firm such as APCO given its reputation for servicing clients such as former Nigerian dictator Sani Abacha, Kazakhstan President for life Nursultan Abishuly Nazarbayev amongst others. Raising these issues was clearly within his role and responsibility as Leader of the Opposition given that Malaysia has historically been a strong critic of Israel particularly for its treatment of Palestinians. His purpose in raising the issue was to caution the Government with regard to its relationship with APCO given APCO’s proven antecedents and called for a cancellation of the contract with APCO. He had also raised concerns about serious breaches of security with regard to IT systems for the police involving Israeli intelligence agents.
40. In our view, these assertions by DSAI were fully within his scope and powers as a Member of Parliament and Leader of the Opposition to make. In fact, he was duty bound to do so.
41. The offending line which seems to be treated a matter with much sting that APCO advised the Government on 1 Malaysia is clearly fair political comment given the circumstantial facts he had adduced in support as set out above.
42. Using Standing Order 36(12) in relation to the offence of “misleading Parliament” against DSAI is clearly a complete misunderstanding and gross misuse of that rule. Using Standing Order 36(12) in this context will result in a serious threat to freedom of speech of a member of the House.
43. These freedoms are not to be taken lightly. They are protected by statute in the form of the Houses of Parliament ( Privileges and Powers ) Act 1952 (Revised 1988, Act 347) ( see Annexure 15). Section 3 reads as follows:
Freedom of speech and debate.
There shall be freedom of speech and debate or proceedings in the House and such freedom of speech and debate or proceedings shall not be liable to be impeached or questioned in any court or tribunal out of the House.
44. Immunity for members of anything said or done before the House is provided in Section 7 as follows:
7. Immunity of members from civil or criminal proceedings for anything done or said before the House.
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.
45. It is also provided in section 32 of the same law for avoidance of any doubt that members of Parliament in Malaysia shall hold the same privileges, immunities and powers as exercised by members of the House of Commons in the United Kingdom thereby preserving all the common law privileges and immunities granted to parliamentarians.
46. Members of the House need to fully appreciate that whilst Rule 36(12) of the Standing Orders serves to prohibit members of Parliament from misleading the House and is applicable to all members of Parliament, by convention, the established convention in similar Commonwealth Parliaments such as the United Kingdom, Canada and Australia is that it is generally used against Cabinet Ministers of the Government to ensure that they do not mislead Parliament.
46.1 It is to ensure that Cabinet Ministers exhibit the highest level of sincerity and honesty when furnishing their replies to Parliamentary queries and is central to the constitutional convention of “Ministerial Responsibility” to Parliament.
46.2 A fundamental feature of the application of the rule is that the offending Minister/member must knowingly mislead the House by stating facts which he knows to be false. This can be easily demonstrated by the only example mentioned in Erskine May “Parliamentary Practice” ( see page 132)(Annexure 17) which took place in the House of Commons in 1963 where Lord Profumo, as the then Secretary for Defence, knowingly made the false statement in the House that his relationship with a high class call girl Christine Keeler contained no impropriety. The question asked of him was relevant because the same woman was known to be having an affair with a senior naval attaché from the Soviet Embassy. Subsequently it was publicly revealed that he did have an affair with Ms Keeler and then resigned as a Minister. The House subsequently found him guilty of a grave contempt for misleading the House.
47. The rule was never intended to be used as a tool to punish any member of the House for providing a different interpretations of the same facts or stating political viewpoints.
48. Members of the Government may feel stung with the statement that a public relations company with known links to Israel had advised it also on 1Malaysia. That is part of the cut and thrust of debate in Parliament and must be recognized as such.
49. DSAI’s statements were not only fair political comment but were also supported by factual assertions. Regrettably he was subsequently prevented from adducing documents and evidence by himself and through witnesses to establish those facts.
50. The Government’s stance in choosing to exaggerate the effect of such comment, and to further mount a motion for contempt on the back of such comment, must be seen for what it truly is - an attempt to stifle free speech in the Dewan Rakyat.
51. If we choose to turn a blind eye now and allow the continued use of Standing Order 36(12) against DSAI, it would form a dangerous precedent that would only serve to impede the ability of the members of the Dewan Rakyat to effectively carry out their constitutional role as a check on the Government. For the system of check and balance to work, the members of the Dewan Rakyat must be allowed to freely and effectively scrutinise Government action without fear of prosecution.
52. For all the above reasons, we urge all members of the House to reject any finding of guilty by the Committee in respect of the allegation against DSAI of misleading the House.
Yours faithfully,
................................................ ..............................................
Karpal Singh R.Sivarasa
Member for Bukit Gelugor Member for Subang
--
Best regards,
Ooi Heng
Parliamentary Research Head
KeADILan Parliamentary Research Unit (KPRU)
Office of the Leader of the Opposition
2 comments:
Quis custodiet ipsos custodes, when this question was answered by Plato in his work The Republic, he answered that they will guard themselves against themselves. "We must tell the guardians a "noble lie". The noble lie will assure them that they are better than those they serve and it is therefore their responsibility to guard and protect those lesser than themselves. We will instill in them a distaste for power or privilege; they will rule because they believe it right, not because they desire it."
I put it to you that there is no noble lie in this case, that there are questions you must answer as guardians of corporate governance in this country, that you must feel in you the same distaste for abuse of power and conflict of interest, that you will do what is right, that you will be true to your calling as one of the guardians for the institutions of this great country.
http://zarinahtakesapaycut.blogspot.com/2010/12/audit-oversight-board-aob-malaysia.html
hi zarina, thanks for input here:) Sdr Anwar was beaten b;ue-black whilein police custody; then he was battered in court on trumped-up charges. then the BN cowards threwhimout of Parliament when he was Opposition Leader with no due respect to the institution of House of Representatives of the People.
WE are indeed headed towards a Failed State status, and the only way to prevent this madness called BN-UMNO is say: Enuf is Enuf! at the GE13. CHANGE NOW!
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