Many statements are coming out of the mouths of various Umno people who are either ignorant of legal/constitutional issues or are merely faking ignorance. Maybe I can explain the many issues and rebut what the mainstream media has been wrongly reporting. And the issues are not as complicating as they make them appear to be.
Many Umno division leaders, some who are Members of Parliament, Senators, and/or Deputy Ministers/Ministers, do not appear to understand the law or the Federal Constitution of Malaysia. So that they do not continue to make fools of themselves, maybe I can enlighten them on how it works.
No, I am not a lawyer, in particular not a constitutional lawyer. It is just that I have a brain and I am not scared of using it. I always say: you need a brain to be a lawyer, but you do not need to be a lawyer to have a brain.
So here goes.
Issue number 1
Under Section 13 of the Criminal Procedure Code, it is a criminal offence to withhold information if you have knowledge/information that a crime has been committed. If you withhold any information you can be arrested and charged under Section 202 of the Penal Code, which carries a sentence of six months jail upon conviction.
Now, I was reliably informed that Lt. Kol. Azmi, the number two in the Special Branch of the Military Intelligence, is aware that a certain crime had been committed. Under normal circumstances I would be required to lodge a police report. However, since I did not have first-hand information of this matter (not a witness to the crime) and therefore since this is merely hearsay (second-hand information) at best, it was decided that I make a Statutory Declaration instead (I sought legal advice on this).
I then signed a Statutory Declaration that laid out what I had been told. I added in that Statutory Declaration that I urge the authorities to investigate this matter to ascertain the truthfulness or otherwise of this allegation by Lt. Kol. Azmi.
By law, I am required to reveal what I had been told. And since this is a very senior man in the Military Intelligence, then what I was informed may be true. Nevertheless, it is up to the authorities to take up the matter and determine the truthfulness (or otherwise) of Lt. Kol. Azmi’s allegation.
Instead of doing that, they decided to charge me for criminal defamation. They were not interested in Lt. Kol. Azmi -- the source of the information -- even after I had revealed his name during my Internal Security Act detention.
In fact, the Special Branch officer in charge of my interrogation, Datuk Zambri Ahmad, admitted that he personally knows Lt. Kol. Azmi. But still he did not talk to Lt. Kol. Azmi. He just commented that maybe I was fed false information with an aim to fix me up. Datuk Zambri came to his conclusion without investigating the matter further to ascertain the truthfulness of the allegation.
Now, on the charge itself, I can’t be charged for criminal defamation unless my so-called crime was against a government official. And the wife of a politician is not a government official. Even if the person is a government official, but someone what the law would declare as ‘on a frolic of his/her own’, the criminal defamation charge would also not apply.
Therefore, the charge was defective and this was pointed out to the court. But the Prosecution refused to withdraw or amend the charge. The fact that under this charge even if I told the truth I would still be guilty and would be sent to jail adds another element to it: mala fide. And this too was pointed out to the court.
And that was why I refused to enter a plea and which the court insisted would be taken as a ‘not guilty’ plea even though I protested and shouted at the judge that this was not what I pleaded.
I was prepared to answer to a charge of signing a false Statutory Declaration if they think I had lied. But I refuse to answer to a defective charge with elements of mala fide.
That is the long and short of it.
Issue number 2
Article 4 (1). This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
This Article of the Constitution means that any laws that Parliament passes after Merdeka that violates or contradicts the Constitution are null and void. The Internal Security Act would be one such law but since it was passed as an ‘emergency law’ during the Malayan Emergency, then this makes the law valid.
The question, however, is that since the Emergency (war with the Communist Party of Malaya) and the Konfrantasi (with Indonesia) have both ended with the signing of peace treaties, should the Emergency not therefore be lifted? And if it should, then how can Malaysia retain emergency laws like the Internal Security Act?
Will the Emergency continue in Malaysia until the end of time and in that same spirit emergency laws that violate the Constitution continue to operate?
Issue number 3
Article 7 (1). No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.
Article 7 (2). A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.
This is my main bone of contention.
I was punished with detention without trial under the Internal Security Act for what I wrote/signed in 2008. In 2001, when I was detained under the Internal Security Act (also for what I had written), they dropped the sedition and other charges against me (they even returned my computer which they confiscated when they closed the file on me). And it was explained that I no longer faced any charges because I had already been punished under the Internal Security Act for those same crimes.
In 2008, they punished me under the Internal Security Act and also brought me to trial for the same crimes.
The Constitution says I can’t be punished twice for the same crime. The government, however, is punishing me twice for the same crime.
Issue number 4
Article 8 (1). All persons are equal before the law and entitled to the equal protection of the law.
I was punished because I was alleged to have made a seditious statement against the wife of the then Deputy Prime Minister. It is seditious only because she happens to be the wife of the Deputy Prime Minister.
The Constitution, however, says we are both equal before the law. I, therefore, can’t be punished just because someone happens to be the wife of someone important. But in my case this is what happened.
Issue number 5
Article 8 (3). There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of the State.
I slotted this in merely to show that even though I am a ‘certified’ subject of the Ruler of Selangor I still could face punishment if I commit a crime. And I accept that as long as it follows the law and the Constitution and not otherwise.
Issue number 6
Article 9 (1). No citizen shall be banished or excluded from the Federation.
This means I cant be banished (meaning my citizenship is withdrawn) just because I oppose the government (like how many Umno people want the government to do).
Raja Petra Kamarudin
02/06/10
Many Umno division leaders, some who are Members of Parliament, Senators, and/or Deputy Ministers/Ministers, do not appear to understand the law or the Federal Constitution of Malaysia. So that they do not continue to make fools of themselves, maybe I can enlighten them on how it works.
No, I am not a lawyer, in particular not a constitutional lawyer. It is just that I have a brain and I am not scared of using it. I always say: you need a brain to be a lawyer, but you do not need to be a lawyer to have a brain.
So here goes.
Issue number 1
Under Section 13 of the Criminal Procedure Code, it is a criminal offence to withhold information if you have knowledge/information that a crime has been committed. If you withhold any information you can be arrested and charged under Section 202 of the Penal Code, which carries a sentence of six months jail upon conviction.
Now, I was reliably informed that Lt. Kol. Azmi, the number two in the Special Branch of the Military Intelligence, is aware that a certain crime had been committed. Under normal circumstances I would be required to lodge a police report. However, since I did not have first-hand information of this matter (not a witness to the crime) and therefore since this is merely hearsay (second-hand information) at best, it was decided that I make a Statutory Declaration instead (I sought legal advice on this).
I then signed a Statutory Declaration that laid out what I had been told. I added in that Statutory Declaration that I urge the authorities to investigate this matter to ascertain the truthfulness or otherwise of this allegation by Lt. Kol. Azmi.
By law, I am required to reveal what I had been told. And since this is a very senior man in the Military Intelligence, then what I was informed may be true. Nevertheless, it is up to the authorities to take up the matter and determine the truthfulness (or otherwise) of Lt. Kol. Azmi’s allegation.
Instead of doing that, they decided to charge me for criminal defamation. They were not interested in Lt. Kol. Azmi -- the source of the information -- even after I had revealed his name during my Internal Security Act detention.
In fact, the Special Branch officer in charge of my interrogation, Datuk Zambri Ahmad, admitted that he personally knows Lt. Kol. Azmi. But still he did not talk to Lt. Kol. Azmi. He just commented that maybe I was fed false information with an aim to fix me up. Datuk Zambri came to his conclusion without investigating the matter further to ascertain the truthfulness of the allegation.
Now, on the charge itself, I can’t be charged for criminal defamation unless my so-called crime was against a government official. And the wife of a politician is not a government official. Even if the person is a government official, but someone what the law would declare as ‘on a frolic of his/her own’, the criminal defamation charge would also not apply.
Therefore, the charge was defective and this was pointed out to the court. But the Prosecution refused to withdraw or amend the charge. The fact that under this charge even if I told the truth I would still be guilty and would be sent to jail adds another element to it: mala fide. And this too was pointed out to the court.
And that was why I refused to enter a plea and which the court insisted would be taken as a ‘not guilty’ plea even though I protested and shouted at the judge that this was not what I pleaded.
I was prepared to answer to a charge of signing a false Statutory Declaration if they think I had lied. But I refuse to answer to a defective charge with elements of mala fide.
That is the long and short of it.
Issue number 2
Article 4 (1). This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
This Article of the Constitution means that any laws that Parliament passes after Merdeka that violates or contradicts the Constitution are null and void. The Internal Security Act would be one such law but since it was passed as an ‘emergency law’ during the Malayan Emergency, then this makes the law valid.
The question, however, is that since the Emergency (war with the Communist Party of Malaya) and the Konfrantasi (with Indonesia) have both ended with the signing of peace treaties, should the Emergency not therefore be lifted? And if it should, then how can Malaysia retain emergency laws like the Internal Security Act?
Will the Emergency continue in Malaysia until the end of time and in that same spirit emergency laws that violate the Constitution continue to operate?
Issue number 3
Article 7 (1). No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.
Article 7 (2). A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.
This is my main bone of contention.
I was punished with detention without trial under the Internal Security Act for what I wrote/signed in 2008. In 2001, when I was detained under the Internal Security Act (also for what I had written), they dropped the sedition and other charges against me (they even returned my computer which they confiscated when they closed the file on me). And it was explained that I no longer faced any charges because I had already been punished under the Internal Security Act for those same crimes.
In 2008, they punished me under the Internal Security Act and also brought me to trial for the same crimes.
The Constitution says I can’t be punished twice for the same crime. The government, however, is punishing me twice for the same crime.
Issue number 4
Article 8 (1). All persons are equal before the law and entitled to the equal protection of the law.
I was punished because I was alleged to have made a seditious statement against the wife of the then Deputy Prime Minister. It is seditious only because she happens to be the wife of the Deputy Prime Minister.
The Constitution, however, says we are both equal before the law. I, therefore, can’t be punished just because someone happens to be the wife of someone important. But in my case this is what happened.
Issue number 5
Article 8 (3). There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of the State.
I slotted this in merely to show that even though I am a ‘certified’ subject of the Ruler of Selangor I still could face punishment if I commit a crime. And I accept that as long as it follows the law and the Constitution and not otherwise.
Issue number 6
Article 9 (1). No citizen shall be banished or excluded from the Federation.
This means I cant be banished (meaning my citizenship is withdrawn) just because I oppose the government (like how many Umno people want the government to do).
Raja Petra Kamarudin
02/06/10
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