Parliament Privileges Comm Rep FINAL 14.12.10

8/8/2019 Parliament Privileges Comm Rep FINAL 14.12.10

1/27

1

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 Houseunder 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 Ministers Department , Dato Seri

Moha med Nazri bin Abdul Aziz [ Minister Nazri ] to the House andapproved 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 Perdan a 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.


2/27

2

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 anoutrageous 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.


3/27

3

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 MalaysianGovernment and the 1Malaysia concept

Refer

Hansard17.3.2010

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


4/27

4

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 M inister 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 Governments Motion

presumes that DSAI is guilty of misleading the

Dewan Rakyat, the Speaker ( at pages 5 and 11)

No: 2

Extract of

Hansard

22.4.2010


5/27

5

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 beaccepted.

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

(DS AIs

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

No 5

Erskine

May page


6/27

6

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, 23 rd Edtn,

Lexis-Nexis Butterworths ) to be entitled at bepresent 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 isrejected 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.

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.


7/27

7

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

(DSAIs

letter dated

8.6.2010)

9.6.2010 3rd Committee Meeting

It was stated in the agenda for the 3rd Committeemeeting 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, DatoAmbiga Sreenevasan, present themselves at the

meeting. DSAI proceeds to renew his application to

be represented by counsel. His counsels 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

No: 7

(Agenda forCommittee

Meeting)


8/27

8

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.

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

(DSAIs

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 theGovernment 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 (4 th)

meeting on 3.12.10 fixed by notice dated 30.11.10.

No: 9

(DSAIs

letter dated

19.8.2010)

3.12.2010 4th Committee Meeting

Notice was given to us by letter dated 30 November

No:10

Notice


9/27

9

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 Ministers

Department to 3 questions by members of the House

(PMs Dept answers ) without hearing anytestimony 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

dated

30.11.10

No 11

Agenda for

4 th meeting


10/27

10

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 Muars 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.

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


8.3. call witnesses and to put forward his defence.

8.4. Hear him in person on the facts and issues raised by him


11/27

11

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. DSAIs application was justified in view of the fact that the Governments

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 Governments Motion could attract such sanctionsbeing 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 thePRPC, 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

1 Section 29 Houses of Parliament (Privileges and Powers) Act 1952( Act 347 ) ( Annexure No 1 5 )


12/27

12

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 DSAIs 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 isprovided 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 PoliticalRights 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.


13/27

13

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 DSAIs 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.


14/27

14

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 3 rd 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 PMs 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 PMs Department a nswers 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 questionsto 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


15/27

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 APCOs 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 APCOs statement was


16/27

16

self-serving and could be easily procured at the request of the

Government.

21.6 With regard to the answers on behalf of the PMs Department by

Ministers Koh and Naz ris, 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 PMs 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 Nazris answer to YB

Tanah M erahs assumption in his question that APCO was paid by

the Prime Minister to launch the 1 Malaysia concept. Minister

Nazris 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


17/27

17

the House Nazri has confirmed that cost of APCOs 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 DSAIs 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 ownwitnesses 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 includingthe 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.


18/27

18

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

DSAIs 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 DSAIs

witnesses are recalcitrant or their evidence is irrelevant as DSAIs

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 DSAIs 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.


19/27

19

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 witnessesrequested by DSAI, or even consider their suitability to give evidence, is in

clear contravention of the Standing Orders. The further failure to treat

DSAIs witnesses in the same manner a s 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 relationshipbetween prominent persons in APCO, its related firms and advisors and

the persons involved in the 1 Malaysia program in Prime Minister Najibs

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

Najibs 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


20/27

20

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 i s

now publicly known that the Government is paying up to RM 76 million for

APCOs such services.

27. In terms of APCOs 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 Nigeriandictator 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 APCOs

proven antecedents.

28. It would be obvious to any reasonable tribunal investigating the truth of

DSAIs 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 DSAIs assertion that APCO advised on

1Malaysia. Simil arly, only then could it decide whether APCOs bare


21/27

21

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 in1723 in Dr Bentleys Case that all law st udents 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 andopportunity 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


33.3 call witnesses and to put forward his own defence.


22/27

22

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 Governments 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 4 th 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. Themajority 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


23/27

23

the reference to APCO advising on 1Malaysia which is now the offending

sentencee in t he 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 Najibs 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 basedin Najibs 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 APCOs

such services.

39. In terms of APCOs 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


24/27

24

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 APCOs

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 Orde r 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 andsuch freedom of speech and debate or proceedings shall not be liable to beimpeached or questioned in any court or tribunal out of the House.

44. Immunity for members of anything said or done before the House isprovided in Section 7 as follows:


25/27

25

7. Immunity of members from civil or criminal proceedings for anythingdone 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 theHouse 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) ofthe 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 easilydemonstrated 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 John Profumo, as

the then Secretary for Defence, knowingly made the false


26/27

26

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 attach 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. DSAIs statements were not only fair political comment but were also

supported by factual assertions. Regrettably he was subsequentlyprevented from adducing documents and evidence by himself and through

witnesses to establish those facts.

50. The G overnments 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


27/27

27

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.SivarasaMember for Bukit Gelugor Member for Subang

Date post:	09-Apr-2018
Category:	Documents
Upload:	peter-chong
View:	218 times
Download:	0 times

Parliament Privileges Comm Rep FINAL 14.12.10

Documents