Prevention of Terrorism Act – Courts can Review Detention Order

The Prevention of Terrorism Bill (“Bill”) was tabled in Parliament recently. Various parties deprecated the Bill for obvious reasons. I would like to highlight one of the many criticisms of the Bill, which is on judicial review. The public concern here is that the Prevention of Terrorism Act (“POTA”) would be misused to detain politicians and activist, instead of actual “terrorist”.

Ouster Clauses in General

Section 19 of the Bill is an ouster clause. In essence, it excludes the power of the Courts to exercise its inherent power to review the decision of the board to issue a detention order. Many people jumped to the conclusion that the Court would completely powerless with this clause. This is entirely misconceived. Section 19 is worded similar to many other ouster clauses in other laws. What is essential here is that the courts can review the decision if it concerns “compliance with any procedural requirement in this Act governing such act or decision”. At this juncture, many might think that the term “procedural requirement” gives rise to a narrow room for review, or rather, a façade of hope.

Courts can Review Detention Orders made without Jurisdiction

The term “procedural requirements” includes jurisdictional requirements. The Privy Council in Anisminic v Foreign Compensations Commission [1969] 2 AC 147 stated, “If Parliament has enacted that provided a certain situation exists then a tribunal may have certain powers, it is clear that the tribunal will not have those powers unless the situation exists”. In other words, the power to issue a detention order would only exist if conditions precedent to the exercise of that power is fulfilled. This test has been accepted by our Federal Court. The next question is, what are these conditions?

Conditions Precedent to Invoke Jurisdiction

The detained person must fall within the ambit of the POTA as Section 19 very clearly states, “decision made by the Board in the exercise of its discretionary powers in accordance with this Act”. The long title and preamble of an Act has the same binding effect as any other part of the Act. The long title and preamble reads:

“An Act to provide for the prevention of the commission or support of terrorist acts involving listed terrorist organizations in a foreign country or any part of a foreign country and for the control of person engaged in such acts and for related matters.                                               

WHEREAS action has been taken and further action is threatened by a substantial body of persons both inside and outside of Malaysia which is prejudicial to the security of Malaysia or any part of Malaysia;

AND WHEREAS Parliament considers it necessary to stop and prevent such action;

NOW, THEREFORE, pursuant to Article 149 of the Federal Constitution, IT IS ENACTED by the Parliament of Malaysia as follows:”

Read together with Article 149, the following conditions must be met before the Board is invested with power to detain a person:

1.    Action has been taken by a substantial body of persons (“body”). The detainee must be a member of such a body;

2.    Further action is threatened by such body, and as such the detained person;

3.    The action referred to above must be an act of terrorism, or, in support, or in relation to an act of terrorism; and

4.    The acts of terrorism mentioned above must involve a terrorist organization as declared under Section 66B and 66C of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001

If the conditions above are not fulfilled, the detention order can be struck off by the courts as the procedural requirement of jurisdictional competence is not complied with. This argument was mounted in the habeas corpus application of Raja Petra Kamarudin back in 23^rd September, 2009. In that case, the Home Minister issued a detention order against Raja Petra under the ISA. The ISA had an ouster clause similar to Section 19. In what was the first successful ISA habeas corpus application, the High Court ordered the release of Raja Petra as the Home Minister was without jurisdiction to issue the order. In essence, the High Court found that Raja Petra was not a member of a substantial body of persons that had acted in way as contemplated by the preamble of the ISA. The decision was appealed all the way to the Federal Court, where the appeal was dismissed on technical grounds. As such, the High Court decisions stands as law.

Conclusion

It is clear the POTA can only be used for very limited grounds as provided for under the long title and preamble. It does not provide room for abuse or misuse. Despite the ouster clause, the courts are still vested with power to ensure that the POTA is applied lawfully. Whether or not the courts will exercise such power, is an entirely different question.

The Kenyan University Massacre: Highlighting the Discriminate Reactions of Society at all Levels

I write this not as a form of banter or of ranting, but of what I believe is the true state of affairs in a society that is largely superficial. The very recent massacre in a Kenyan university has provided me the scintilla to write what should have been, or has been said many times.

On September 11, 2001, the United States (“US”) suffered the worst terrorist attack in its history which resulted in the loss of approximately 3000 lives. The attack drew opprobrium from all corners of the world. The US reacted with a war against “terrorism”, and a wave of “islamophobia” insidiously swept in. The war in Iraq and Afghanistan claimed approximately 115,000 lives. Dreadful human rights violations betided in Guantanamo Bay, where victims were innocent Muslims. Putting that on hold, let’s look at what happened in Palestine. The conflict in Palestine has taken tens of thousands of lives since 1948. In the Gaza hostilities alone, the United Nations reported that 7 out of 10 Palestinians killed were civilians (approximately 2,100 Palestinians were killed). Considerable support for Palestine and carping against Israel came from the Muslim community. The US threw its support behind Israel, and has from the very beginning, employed various tactics to impede Palestine’s access to an effective forum for the discussion and possibly, a fair solution to the conflict. The reactions from the rest of the globe were largely divided, when it clearly should not have been so.

Moving to a much smaller scale, on 7 January 2015, two assailants killed 11 people in the offices of the French satirical weekly newspaper, Charlie Hebdo. The international community reacted strongly. On 11 January 2015, approximately 2 million people including more than 40 world leaders led a rally of national unity in the heart of Paris. In contrasts, the international community, albeit reacted, but in a more subdued way, towards numerous other massacres which claimed more lives. The Sri Lankan civil war claimed the lives of approximately 40,000 Tamil civilians. The Muslim Rohingya people in Myanmar have continued to suffer from grave human rights violations since 1978, with hundreds massacred and over a hundred thousand forcefully displaced. Countless massacres have occurred throughout the Middle-East. The civil war in Sierra Leon has left over 50,000 people dead. The massacre in the Kenyan university has claimed the lives of approximately 150 students. The middle-east and the African region have seen countless massacres.

The impetus of providing the above facts is to outline the dissimilitude of the reactions of the international community towards different events. It could be due to, amongst others, political, racial, religious or financial reasons. At a slightly different dimension, individuals seem display the same level of thought, albeit for different reasons. For example, I couldn’t help but notice that almost 70 percent of my Facebook friends mourned the passing of Paul Walker on their Profile Page. However, when Irene Fernandez (leading Human Rights activist) passed away, only a few Facebook friends shared similar sentiments. The same can be said on the various massacres taking place all over the world.

Everyone has the right to express on what they believe claims priority. However, I believe that as human beings, we have an innate obligation to uphold humanity in its basic form, in which ever way suits us most according to our individual strengths. Society, at all levels, particularly in regards to the human rights violations and the loss of human lives, needs to act and react regardless of race, religion, and personal gain in all its forms. In an era where boundaries between the international community are diminishing, the need for society to fully comprehend that all human beings are equal is crucial.

Some, or many, might disagree with me. Some might see it as a utopian ideology. However, hope is what drives us when all else seems bleak. After all, it is humanity that makes us human beings, for without it, we are no different than any other being in this world.

The Demise of the Sedition Act

The Sedition Ordinance 1948 (the “Ordinance”) did not survive the establishment of the Malaysian Federal Constitution (the “Constitution”). Why? Well, to put it in one sentence, it is simply because the Ordinance wasn’t passed by Parliament. This argument was taken in the Federal Court a few days ago in a referral case on the constitutionality of the Sedition Act. Let’s go through the argument stage by stage.

Parliaments Exclusive Power to Restrict Freedom of Speech and Expression

Only Parliament may by law impose restrictions on right to freedom of speech and expression. This power lies within the exclusive realm of Parliament. This was made clear by the Supreme Court in the case of Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697. It is important to note that Article 10(2) requires that Parliament comes to a conclusion that a restriction on such right is necessary under one of the grounds stated in the same article

The Ordinance was never passed in Parliament

The Ordinance was passed by the British Legislative Council on 06.07.1948. Since its inception, the Ordinance has undergone the following:

1.    Modifications by the Yang di-Pertuan Agong (“YDPA”) pursuant to Article 162(4) of the Constitution on 13.11.1958 (the “1958 Order”);

2.    Two orders by the YDPA to extend the application of the Act to Sabah, Sarawak and Singapore;

3.    Revision by the Commissioner of Law Revision on 14.04.1970. The Sedition Ordinance 1948 was renamed as the Sedition Act 1948 (the Sedition Ordinance will be hereinafter referred to as the “Act”);

4.    Amendments by the YDPA pursuant to the Emergency (Essential Powers) Ordinance No.45 1970.

It is clear that the Act was never once passed or even discussed in the way required under Article 10(2) in Parliament.

Article 162 does not save the Act

The said Article allows Parliament or the Court to modify pre-Merdeka laws to bring it in accord with the Constitution. Back in 1956, the YDPA had the power to do so under Article 162(4) (repealed in 1963) as Parliament was yet to be established. The YDPA did in fact exercise his powers under Article 162(4) using the 1958 Order.

The point here is this: the Act was a law that was incapable of modification, and was therefore outside the ambit Article 162. In Malaysia, the cases of Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ 79 and Assa Singh v Menteri Besar, Johore [1969] 2 MLJ 30 extensively discussed the application of Article 162. In both these cases, it was held that the relevant law could be modified under Article 162. However, it left open the door to a scenario where a law could not be or was incapable of being modified under Article 162. The Court of Appeal in Singapore made this clear in Tan Eng Hong v Attorney-General [2012] 4 SLR 476 when discussing the Malaysian Article 162. V K Rajah JA in delivering the judgment of the Court stated:

“We align ourselves with the latter two cases, and find that while those two cases hold that modification of unconstitutional existing laws must be carried out, this is only in so far as modification is possible. Surinder Singh and Assa Singh leave open the position which the courts should take where modification is impossible, viz, whether the courts can then void the unconstitutional existing law under Art 4.”

The Act falls squarely under this category. It was a law that was incapable of modification as only Parliament could enact it. It fell outside the powers of the YDPA under Article 162(4). In considering this point, it must be borne in mind that the apex courts of this land has recognised the doctrine of separation of powers. As such, if the Constitution has provided for limits on a power, such limit must be respected as the Constitution is the supreme law of the land. The constitutional limit here is that only Parliament can legislate to restrict freedom of speech and expression.

To sum it up, the general rule is that pre-Merdeka laws can be modified to bring it in accord with the Constitution under Article 162. However, there is an exception, which is that Article 162 does not apply to laws that are incapable of being modified. The Act is such a law as only Parliament can enact it.

Subsequent Events did not validate the Act

If the Act is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. (Keshavan Madhava Menon v The State of Bombay, AIR 1951 SC 128)

Conclusion

The question is one of power and not of the substance of the Act. If the Act was tabled and passed in Parliament as required under Article 10(2), it would be valid. However, this was clearly not done. It is now in the hands of the Court to give effect to the fundamental principles underlying our Constitution.

The Story Behind the Sedition Act

Much has been said about the Sedition Act 1948 (the “Act”) and its background. Discussion on the Act has become ever more vibrant in light of its proliferated usage recently. It is important that the public knows how the Act came about and how it has evolved over the years. The following information is based on documents obtained from the National Archives of Malaysia and the United Kingdom.

Material Background

1.            The Federation of Malaya Agreement (“FMA”) was entered into on 21.01.1948. In essence, the Federation of Malaya (the “Federation”) united the Federated Malay States, Johor, Kedah, Perlis, Kelantan, Terengganu and the Strait Settlements. The executive authority was vested in the High Commissioner and the Federal Executive Council (“Executive Council”). The legislative authority was vested in the Federal Legislative Council (“Legislative Council”) which was headed by the High Commissioner.

The Sedition Ordinance 1948 (the “Ordinance”)

2.            On 10.06.1948, the Attorney-General, E.P.S. Bell, submitted a draft Sedition Bill (“Draft Bill”) to the Chief Secretary, H.P. Bryson. His reasons were stated in a telegram as follows, “His Excellency was anxious for a Bill to unify the law relating to sedition and I submit a draft herewith”.  The Draft Bill essentially was a reproduction of the various Sedition Enactments and Ordinances in each State with a few new provisions.

3.            On 12.06.1948, in an emergency meeting, the Draft Bill was considered and approved by the Federal Executive Council to be introduced in the Legislative Council on 05.06.1948.  An Emergency Ordinance Bill (“Emergency Bill”) was also discussed in the same meeting.

4.            On 16.06.1948, the High Commissioner declared a state of emergency in certain areas of Perak and Johor. This proclamation was extended to the whole of the Federation on 18.06.1948 pursuant to the British Military Administration Proclamation (Essential Regulations) Ordinance. The emergency was declared due to the increase of communist attacks in the Federation.

5.            The Emergency Bill was passed in the Legislative Council on 05.06.1948 and came into force as the Emergency Regulations Ordinance 1948 on 07.07.1948 (“Emergency Ordinance 1948”).

6.            On 06.06.1948, the Sedition Bill (the “Bill”) was tabled in the Legislative Council. Before the Bill was read, the Standing Rules and Orders of the Legislative Council were suspended pursuant to Rule 121 of the same to enable the Bill to be taken through all its stages in the proceedings. The Bill was eventually passed on the same day.

7.            On 12.07.1948, the High Commissioner made an emergency proclamation pursuant to Section 3 of the Emergency Ordinance 1948 which applied to the whole of the Federation. The Sedition Bill came into force as the Sedition Ordinance on 19.07.1948.

The Ordinance after Independence

8.            All the modifications and amendments discussed below can be viewed here - http://surendraananth.blogspot.com/2015/03/modifications-and-amendments-made-to.html.

9.            On 13.11.1958, the Yang di-Pertuan Agong (“YDPA”) made an order cited as the Federal Constitution (Modification of Laws) (Ordinances and Proclamations) Order 1958 (the “1958 Order”) pursuant to Article 162(4) of the Federal Constitution. The 1958 Order consisted of modifications which appeared to the YDPA to be necessary or expedient for the purpose of bringing the provisions of existing laws into accord with the provisions of the Constitution. The 1958 Order made certain modifications to the Ordinance.

10.         On 28.05.1964, the YDPA made an order cited as the Modification of Laws (Sedition) (Extension and Modification) Order 1964 pursuant to Section 74 of the Malaysia Act which extended the application of the Ordinance to Sabah and Singapore. A similar order was made by the YDPA on 20.11.1969 to extend the application of the Ordinance to Sarawak.

11.         The Ordinance was revised by the Commissioner of Law Revision to become the Sedition Act 1948 on 14.04.1970 pursuant to Section 6 of the Revision of Laws Act 1968. Minor substitutions and grammatical changes were also made.

The Sedition Act 1948

12.         On 15.05.1969, the YDPA made an emergency proclamation pursuant to Article 150 of the Federal Constitution. On 10.08.1970, the YDPA issued an ordinance entitled Emergency (Essential Powers) Ordinance No.45 1970 (“Emergency Ordinance 1970”) pursuant to Article 150(2) of the Federal Constitution. The YDPA had amended the Sedition Act 1948 via the Emergency Ordinance 1970.

13.         On 20.12.2011, the Senate passed a motion to annul the 1966, 1969 and 1977 Emergency Proclamations.

Conclusion

Many have said that the Ordinance was passed to combat communism. Although the Ordinance was not an emergency law, the timing of its inception and the fact that it was passed in a rush speaks for itself. 

Modifications and Amendments made to the Sedition Act from its Inception in 1948

Date	Sections Amended	Original Provision	Amended Provision
13.11.1958	Section 2 – Definition of “Government” substituted	“Government” means any of the Governments of the United Kingdom, of the Federation, of any State or Settlement in the Federation, or of any Dominion, Colony, Protectorate State or territory in the possession of or under the protection of or held under any mandate or trusteeship by His Britannic Majesty or the Government of any of His Britannic Majesty’s Dominion	“Government” means the Government of the Federation and of any State in the Federation
	Section 2 – Definition of “Ruler” substituted	“Ruler” means His Britannic Majesty or any Ruler of any Malay or other State under the protection of His Britannic Majesty	“Ruler” means the Yang di-Pertuan Agong or the Ruler or Governor of any State in the Federation
	Section 3(1)(c) – words “Malay” and “Settlement” deleted	To bring into hatred or contempt or to excite disaffection against the administration of justice in the Federation or in any Malay State or Settlement; or	To bring into hatred or contempt or to excite disaffection against the administration of justice in the Federation or in any State; or
	Section 3 (1)(d) – words “His Majesty” and words “Malay” and “Settlement” deleted	To raise discontent or disaffection amongst the subjects of His Majesty or of the Ruler of any Malay State or amongst the inhabitants of the Federation or of any Malay State or Settlement; or	To raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any Malay State or amongst the inhabitants of the Federation or of any State; or
	Section 6(1) – words “Enactment of the Federated Malay States or any corresponding provision of law in force in any Malay State or Settlement” substituted	Notwithstanding anything to the contrary contained in the Evidence Enactment of the Federated Malay States or any corresponding provision of law in force in any Malay State or Settlement, no person shall be convicted of an offence under section 4 of this Ordinance on the uncorroborated testimony of one witness	Notwithstanding anything to the contrary contained in the Evidence Ordinance, 1950, no person shall be convicted of an offence under section 4 of this Ordinance on the uncorroborated testimony of one witness
	Marginal note to Section 6(1) substituted	Evidence F.M.S. Cap. 10	No. 11 of 1950
14.04.1970	Title	Federation Of Malaya, No. 14 of 1948	Laws of Malaysia, Act 15, Sedition Act, 1948
	Preamble – substituted the word “Ordinance” with the word “Act”	An Ordinance to provide for the punishment of sedition	An Act to provide for the punishment of sedition
	Section 1 – substituted the word “Ordinance’ with the word “Act”	This Ordinance may be cited as the Sedition Ordinance, 1948	This Act may be cited as the Sedition Act, 1948
	Section 3(1)(b) – substituted the words “by such Government” with the words “by the 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 such Ruler or governed by such Government, the alteration, otherwise than by lawful means, of any matter as by law established; or	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 such Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established; or
	Section 3(1)(c) – substituted the words “the Federation” with the word “Malaysia”	To bring hatred or contempt or to excite disaffection against the administration of justice in the Federation or in any State; or	To bring hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State; or
	Section 3(1)(d) - substituted the words “the Federation” with the word “Malaysia”	To raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any Malay State or amongst the inhabitants of the Federation or of any State; or	To raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any Malay State or amongst the inhabitants of Malaysia or of any State; or
	Section 3(1)(e) - substituted the words “the Federation” with the word “Malaysia”	To promote feelings of ill-will and hostility between different races or classes of the population of the Federation	To promote feelings of ill-will and hostility between different races or classes of the population of Malaysia
	Section 3(2) – Made grammatical changes	Notwithstanding anything in sub-section (1) of this section contained an act, speech, words, publication or other thing shall not be deemed to be seditious by reason  only that it has tendency -	Notwithstanding anything in sub-section (1) an act, speech, words, publication or other things shall not be deemed to be seditious by reason only that it has a tendency -
	Section 3(2)(c) - substituted the words “by such Government” with the words “by the Government”	To persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Ruler or governed by such Government as by law established; or	To persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Ruler or governed by the Government as by law established; or
	Section 3(2)(d) - substituted the words “the Federation” with the word “Malaysia”	To point out, with a view to their removal, any matters producing or having a tendency to produce feelings of ill-will and enmity between different races or classes of the population of the Federation	To point out, with a view to their removal, any matters producing or having a tendency to produce feelings of ill-will and enmity between different races or classes of the population of Malaysia
	Section 3(3) – substituted the word “Ordinance” with the word “Act”	For the purpose of proving the commission of any offence against this Ordinance the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact such act had, or would, if done, have had, or such words, publication or thing had, a seditious tendency	For the purpose of proving the commission of any offence against this Act the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact such act had, or would, if done, have had, or such words, publication or thing had, a seditious tendency
	Section 5(1) – Deleted the words “of this Ordinance”	No prosecution for an offence under section 4 of this Ordinance shall be begun except within six months after the offence is committed	No prosecution for an offence under section 4 shall be begun except within six months after the offence is committed
	Section 5(2) - Deleted the words “of this Ordinance” and substituted the words “the Federation” with the word “Malaysia”	No person shall be prosecuted for an offence under section 4 of this Ordinance without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Federation to be the Court of trial.	No person shall be prosecuted for an offence under section 4 without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Malaysia to be the Court of trial.
	Section 6(1) – Deleted the figure “1950” and the words “of this Ordinance”	Notwithstanding anything to the contrary contained in the Evidence Ordinance, 1950, no person shall be convicted of an offence under section 4 of this Ordinance on the uncorroborated testimony of one witness	Notwithstanding anything to the contrary contained in the Evidence Ordinance, no person shall be convicted of an offence under section 4 on the uncorroborated testimony of one witness
	Section 6(2) – substituted words “paragraph (c) or paragraph (d) of sub-section (1) of section 4 of this Ordinance” with words and figures “section 4(1)(c)(d)”	No person shall be convicted of any offence referred to in paragraph (c) or paragraph (d) of sub-section (1) of section 4 of this Ordinance if such person proves that the publication in respect of which he is charged was printed, published, sold, offered for sale, distributed, reproduced or imported (as the case may be) without his authority, consent and knowledge, and without any want of due care or caution on his part, or that he did not now and had no reason to believe that the publication had a seditious tendency.	No person shall be convicted of any offence referred to in section 4(1)(c) or (d) if the person proves that the publication in respect of which he is charged was printed, published, sold, offered for sale, distributed, reproduced or imported (as the case may be) without his authority, consent and knowledge, and without any want of due care or caution on his part, or that he did not now and had no reason to believe that the publication had a seditious tendency.
	Section 7 – added the words “or, in Sabah and Sarawak, to an administrative officer or to the officer in charge of the nearest police station”	Any person to whom any seditious publication is sent without his knowledge or privity shall forth-with as soon as the nature of its contents has become known to him deliver such publication to the officer in charge of a police district, and any person who complies with the provisions of this section shall not be liable to be convicted for having in his possession such publication:	Any person to whom any seditious publication is sent without his knowledge or privity shall forth-with as soon as the nature of its contents has become known to him deliver such publication to the officer in charge of a police district or, in Sabah and Sarawak, to an administrative officer or to the officer in charge of the nearest police station, and any person who complies with the provisions of this section shall not be liable to be convicted for having in his possession such publication:
	Section 9(2) – made grammatical changes	Any person who contravenes an order made under this section shall be guilty of an offence, and shall be liable to imprisonment of either description for a term not exceeding three years or to a fine not exceeding five thousand dollars or to both such imprisonment and fine	Any person who contravenes an order made under this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding three years or to both.
	Section 9(3) – substituted the word “Ordinance” with the word “Act”	Nothing in this Ordinance shall affect the power of the Court to punish any person contravening an order under this section for contempt of Court: Provided that no person shall be punished twice for the same offence	Nothing in this Act shall affect the power of the Court to punish any person contravening an order under this section for contempt of Court: Provided that no person shall be punished twice for the same offence
	Section 10(4) – made grammatical changes	Every person on whom a copy of a prohibition order is served by any police officer shall forthwith deliver to that police officer every prohibited publication in his possession, power, or control, and, if he fails to do so, he shall be guilty of an offence and shall be liable to imprisonment of either description for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine.	Every person on whom a copy of a prohibition order is served by any police officer shall forthwith deliver to that police officer every prohibited publication in his possession, power, or control, and, if he fails to do so, he shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding one year or both
	Section 10(5) – made grammatical changes	Every person to whose knowledge it shall come that a prohibited publication is in his possession, power, or control shall forthwith deliver every such publication into the custody of the police, and, if he fails to do so, he shall be guilty of an offence and shall be liable to imprisonment of either description for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine	Every person to whose knowledge it shall come that a prohibited publication is in his possession, power, or control shall forthwith deliver every such publication into the custody of the police, and, if he fails to do so, he shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding one year or to both
	Section 10(8) – substituted words “Government of the Federation” with the words “Federal Government”	Every prohibited publication delivered or seized under this section with respect to which a petition is not filed within the time aforesaid or which is not ordered to be returned to the owner shall be deemed to be forfeited to the Government of the Federation	Every prohibited publication delivered or seized under this section with respect to which a petition is not filed within the time aforesaid or which is not ordered to be returned to the owner shall be deemed to be forfeited to the Federal Government
	Section 11 – substituted the word “Ordinance” with the word “Act”	Any police officer not below the rank of Inspector may arrest without warrant any person found committing or reasonably suspected of committing or of having committed or of attempting to commit or of procuring or abetting any person to commit any offence against this Ordinance, or reasonably suspected of the unlawful possession of any thing liable to forfeiture thereunder	Any police officer not below the rank of Inspector may arrest without warrant any person found committing or reasonably suspected of committing or of having committed or of attempting to commit or of procuring or abetting any person to commit any offence against this Act, or reasonably suspected of the unlawful possession of any thing liable to forfeiture thereunder
	Section 12 – repealed	The Ordinance and Enactments set out in the Schedule to this Ordinance are hereby repealed
	Schedule (Section 12) Repeal - repealed	List of Sedition Enactments and Ordinances in the Federated Malay States, Strait Settlements, Johore, Kedah, Perlis, Kelantan and Terengganu
10.08.1970	Section 3(1) – new paragraph (f) added	A “seditious tendency” is a tendency -	A “seditious tendency” is a tendency – (f) 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
	Section 3(2)(b) – inserted new phrase after “constitution as by law”	To point out errors or defects in any Government or constitution as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or	To point out errors or defects in any Government or constitution as by law (except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in paragraph (f) of sub-section (1) otherwise than in relation to the implementation of any provision relating thereto) established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or
	Section 3(2) – paragraphs (c) and (d) substituted with paragraph (c)	(c) to persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Ruler or governed by such Government as by law established; or (d) to point out, with a view to their removal, any matters producing or having a tendency to produce feelings of ill-will and enmity between different races or classes of the population of the Federation;	(c) except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in paragraph (f) of sub-section (1)- (i) to persuade the subjects of any Rulers or the inhabitants of any  territory governed by any Government to attempt to procure by  lawful means the alteration of any matter in the territory of such  Government as by law established; or (ii) to point out, with a view to their removal, any matters producing  or having a tendency to produce feelings of illwill and enmity  between different races or classes of the population of the  Federation,
	Section 5 – Deleted sub-section (1) and renumbered sub-section (2) as sub-section (1)	(1) No prosecution for an offence under Section 4 of this Ordinance shall be begun except within six months after the offence is committed; (2) No person shall be prosecuted for an offence under section 4 of this Ordinance without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Federation to be the Court of trial	(1) No person shall be prosecuted for an offence under section 4 of this Ordinance without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Federation to be the Court of trial

Reply to Tan Sri Muhammad Shafee Abdullah's Statement on DSAI's Appeal

Social media is still abuzz with the Federal Court’s decision in dismissing Datuk Seri Anwar Ibrahim’s (“DSAI”) sodomy appeal. What caught my eye was Tan Sri Muhammad Shafee Abdullah’s (“Shafee”) statement yesterday. In particular, the following paragraph:

“Consider how this matter first arose. As Hansard (dated 22 October 1997, 18 December 1997) recalls, the very first time an MP stood up in parliament holding a statutory declaration that accused Anwar Ibrahim of sexual – homosexual – assault, Anwar Ibrahim was Deputy Prime Minister and his accuser was not a member of the government, but in fact an opposition MP from the DAP. And who was his original accuser? The late Karpal Singh MP, a brilliant lawyer. Any account of the criminal and then political downfall of Anwar Ibrahim should recall who threw the first stone.”

I must stress the usage of the word “accused” and “accuser”. The above statement, if true, would arguably debunk any assertion of a political conspiracy. It would also put into question the late Mr. Karpal Singh’s professionalism as he was part of DSAI’s defence team during the first trial. So let us see what was actually said in the Parliamentary debates.

This was what the late Mr. Karpal Singh said in Parliament on 22 October 1997 (pages 40-42):

“Tuduhan-tuduhan yang dibuat oleh kedua-dua ini adalah serius seperti apa yang saya nyatakan tadi bagi maruah seorang pemimpin dalam negara ini, bad warning, khasnya kerana Yang Amat Berhormat Timbalan Perdana Menteri adalah bakal Perdana Menteri bagi negara ini. Oleh itu tidak ada pilihan lain kecuali ada satu pilihan sahaja iaitu adalah untuk membersihkan namanya. Saya ada bertanya satu soalan baru-baru ini pada 6 Oktober, 1997, soalan No. 29, ringkasnya soalan itu adalah mengenai satu laporan yang ada dibuat oleh pegawai daripada Yang Amat Berhormat Timbalan Perdana Menteri ke atas tuduhan yang ada dibuat ke atasnya dan adakah apa-apa tindakan diambil oleh polis? Jawapan adalah ini: ''Adalah disahkan bahawa satu laporan polis telah dibuat dan siasatan dijalankan. Kertas siasatan telah dikemukakan kepada pihak Peguam Negara untuk tindakan selanjutnya. " Tidak boleh ada kelewatan dalam perkara ini. Saya merayu kepada Peguam Negara, jika tidak berasas tuduhan itu, untuk membersihkan nama Yang Amat Berhormat Timbalan Perdana Menteri kerana itu satu keperluan khasnya dalam keadaan sekarang.”

[…]

“Yang Amat Berhormat Timbalan Perdana Menteri adalah orang Pulau Pinang. Adalah kewajipan saya untuk mempertahankan maruah dia. Apa yang saya nyatakan tadi ialah dia adalah bakal Perdana Menteri. Saya merayu kepada Yang Amat Berhormat Timbalan Perdana Menteri untuk membuat demikian. Boleh buat satu civil case terhadap defamation atas kedua-dua ini. Kedua-dua ini boleh diberi satu peluang untuk mempertahankan diri sendiri di mahkamah. Ini dia tidak boleh mengetepikan legislative, tidak boleh.”

[…]

“Jika kedua-dua ini ada diperalatkan oleh pihak yang ketiga, lebih serius untuk mendapat tahu siapa pihak yang ketiga ini. Adakah orang ini orang politik, menteri barangkali, puak-puak dalam UMNO yang hendak menjatuhkan Yang Amat Berhormat Timbalan Perdana Menteri? Jika ada orang atas yang terlibat lebih serius untuk menangkap orang-orang ini, tak payah orang yang ada diperalatkan. Tuduhan ini dibuat dalam bulan Ogos, sekarang kita adalah dalam bulan Oktober. Sehingga hari ini Peguam Negara tidak mengumumkan apa tindakan yang akan diambil atas kedua-dua orang ini termasuk dua orang pegawai polis. Siapa pegawai polis ini, bolehkah saya dapat tahu?”

This was what the late Mr. Karpal Singh said in Parliament on 18 December 1997 (pages 49-51):

“Khasnya, Tuan Speaker, ini adalah satu perkara yang saya ada bangkitkan dalam Dewan yang mulia ini pada 22 Oktober tahun ini. Ini adalah mengenai dua surat yang ada ditulis, dua aduan yang dibuat kepada Yang Amat Berhormat Perdana Menteri. Satu adalah ini, Tuan Speaker,jika saya boleh baca, 'Pengakuan Bersumpah oleh seorang, Azizan bin Abu Bakar '. Pada 22 Oktober, saya tidak memberi butir-butir surat sumpah ini dan saya ada merayu kepada Timbalan Perdana Menteri untuk mengambil tindakan. Apa yang beliau ada menjawab ialah bahawa perkara ini ada dalam tangan Peguam Negara. Oleh itu, beliau tidak terjejas dengan apa yang ada dibuat oleh Peguam Negara dan menunggu keputusan Peguam Negara. Tuan Speaker, hari ini adalah hari yang akhir persidangan Dewan ini. Sampai sekarang tidak ada mendapat apa-apa daripada Peguam Negara mengenai perkara ini. Tohmahan yang ada dibuat ke atas Timbalan Perdana Menteri adalah serius, saya baca bukan semua bahagian, tetapi apa yang penting di sini…”

It is blatantly clear that the late Mr. Karpal Singh was concerned for the image of the country and for DSAI as the then Deputy Prime Minister and as an individual. All he wanted was an answer from the Attorney-General to clear up DSAI’s name. The late Mr. Karpal Singh was fighting for something he fought for all his life, justice. To say that he accused DSAI of homosexuality is outright slander. Shafee is a very senior member of the Malaysian Bar. I believe some explanation is needed for his statement.

The transcripts of the Parliamentary debates are available to the public at http://www.parlimen.gov.my/hansard-dewan-rakyat.html?uweb=dr&arkib=yes.