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 House
under Standing Order 86(1).

2. The report is presented vis a vis the inquiry by the Committee pursuant to
the Motion to refer Dato Seri Anwar Ibrahim [“DSAI”], Leader of the
Opposition of the Malaysian Parliament, to the Committee which was
presented by Minister in the Prime Minister’s Department, Dato Seri
Mohamed Nazri bin Abdul Aziz [“Minister Nazri”] to the House and
approved by the House on 22.4.2010 despite a walk-out by opposition
members.

2.1. The motion was raised by Minister Nazri for the following statement
made by DSAI in the Dewan Rakyat on 17.3.2010.
“1999 Satu Israel. 2009 APCO menasihati Perdana Menteri Dato’
Sri Mohd Najib 1Malaysia”

2.2. The statement, when read in context, suggests that APCO

Worldwide [“APCO”] advised the Prime Minister in respect of his
1Malaysia concept.
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3. The purpose of this report is to highlight to the members of the House the
travesty of justice that is being perpetrated against DSAI by refusing him
the right to:-

3.1. have legal counsel present to assist him in his defence;

3.2. hear the evidence preferred against him and test the evidence
through cross examination; and
3.3. to call witnesses and to put forward his own defence; and
3.4. to also present our views of the implications of finding DSAI guilty
of breach of privilege in the circumstances of this case.

4. It will be apparent from the following report that there has been an
outrageous and flagrant denial to DSAI of the right to a fair hearing before
the Committee by the Speaker of the Dewan Rakyat (in his capacity as the
Chairman of the Committee) [“Speaker”] and the members of the
Committee who are aligned to the ruling Barisan Nasional coalition, and
who collectively form a majority in the Committee. For the record, the
members of the Committee are:-

4.1. Speaker of the House

4.2. YB Beluran - Barisan Nasional ( also Deputy Speaker)
4.3. YB Muar - Barisan Nasional
4.4. YB Alor Gajah - Barisan Nasional
4.5. YB Batang Sadong - Barisan Nasional
4.6. YB Subang – Pakatan Rakyat
4.7. YB Bukit Gelugor – Pakatan Rakyat

5. This is an appeal to the members of the House to put aside party loyalty
and to be objective in passing judgment on a fellow member of the Dewan
Rakyat. As members of this august house, we must always act in
accordance with the principles of natural justice and procedural fairness.
 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 Refer
regarding the links between APCO, the Malaysian Hansard
Government and the 1Malaysia concept 17.3.2010

22.3.2010 YB Kota Belud alleges that DSAI has misled the Refer
Dewan Rakyat in contravention of Rule 36(12) of the Hansard
Standing Orders. 22.3.2010

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.
 4

30.3.2010 DSAI provides a detailed explanation to the Dewan No 1.

Rakyat setting out the basis of his statements vis a Extract of
vis the links between APCO, the Malaysian Hansard
Government and the 1Malaysia concept, as well as 30.3.2010
the links between APCO and the Israeli government.

He further challenges Prime Minister Najib (“PM”) to

categorically deny that any of the individuals linked
to APCO or its associated firms were involved in
developing the concept of 1Malaysia. No response
was forthcoming from the PM.

22.4.2010 Minister Nazri speaking on behalf of the Government No: 2

raises a motion to refer DSAI to the Committee for Extract of
misleading the Dewan Rakyat by making the Hansard
following statement:- 22.4.2010

“1999 Satu Israel. 2009 APCO menasihati

Perdama Menteri Dato’ Sri Mohd Najib
1Malaysia”.

The motion further requests the Committee to

recommend an appropriate punishment for DSAI, to
be passed by the Dewan Rakyat in this matter
[“Government’s Motion”].

Upon clarification sought by other members of the

Dewan Rakyat on whether the Government’s Motion
presumes that DSAI is guilty of misleading the
Dewan Rakyat, the Speaker ( at pages 5 and 11)
 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 be
accepted.

17.5.2010 1st Committee Meeting No: 3

It was agreed by the members of Committee that all (Agenda for
relevant witnesses will be called. DSAI was not PRPC
informed of the 1st Committee Meeting and Meeting)
therefore was not present.

7.6.2010 DSAI sends a letter to the Speaker confirming ( in No: 4

response to the letter dated 25.5.10 from the (DSAI’s
Secretary of the Committee) that he will be present letter dated
and give evidence before the Committee hearing on 7.6.2010)
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.
8.6.2010 2nd Committee Meeting No 5 –
The Committee considers the application by YB Erskine
Puchong and other members of the Dewan Rakyat May page
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to be present during the proceedings of the 755

Committee. The request is rejected by a vote 4:2
(four Barisan National (“BN” ) members ie YB Alor
Gajah, YB Batang Sadong, YB Beluran ( Deputy
Speaker) and YB Muar voted to reject; we, the two
Pakatan Rakyat members voted to allow permission
to be present).

We supported the application on the basis that it is

established practice on the authority of Erskine May
“Parliamentary Practice” ( see page 755, 23rd Edtn,
Lexis-Nexis Butterworths ) to be entitled at be
present at the sittings of Committees at which the
public is not admitted, unless their presence
obstructs the business of the committee. We saw
no reason for such obstruction to take place.

DSAI is then called in and makes an application to

be represented by counsel. The application is
rejected on the basis of an identical vote as above
denying the request for legal representation. The
four BN members voted to reject representation by
counsel; we voted in favour. However DSAI is told
by the Speaker that he may have his counsel
present for advice.

8.6.2010 We were informed later that day that the Committee

intends to start proceedings on 9.6.2010 by
examining Minister Nazri and a representative from
APCO.
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8.6.2010 DSAI sends a letter to the Speaker confirming that No: 6

the Committee had agreed to allow DSAI to have (DSAI’s
legal counsel present to advise him. He also stated letter dated
that he was informed that the Committee was 8.6.2010)
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.
9.6.2010 3rd Committee Meeting No: 7
It was stated in the agenda for the 3rd Committee (Agenda for
meeting that Minister Nazri and one Brad Staples, Committee
Chief Executive of APCO for Europe, Middle East Meeting)
and Africa [“APCO CEO”] were to be called before
the Committee to give their testimony.

Despite not having been informed officially of the

meeting, DSAI together with his legal counsel, Dato
Ambiga Sreenevasan, present themselves at the
meeting. DSAI proceeds to renew his application to
be represented by counsel. His counsel’s request to
speak on his behalf and address the Committee
only on this issue is denied by the Speaker.

Permission to allow DSAI to be represented by

counsel was again refused after an identical vote as
earlier - 4:2 against.

The Speaker however agrees to allow DSAI himself

to be present when witness evidence is given
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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 No: 8
of witnesses he wants called to give testimony (DSAI’s
before the Committee in accordance with Standing letter dated
Order 83(9). 9.6.2010)

20.8.2010 APCO CEO delivers a letter dated 19.8.10 to the No: 9

Speaker alleging inter alia that:- (DSAI’s
a) he had travelled from Brussels to Kuala letter dated
Lumpur to testify before the PRPC in June 19.8.2010)
2010 but he was denied the opportunity to do
so;
b) APCO provides communication support to the
Government of Malaysia; and
c) APCO was not involved in the creation of
1Malaysia or 1Israel.

For unknown reasons, this letter is not brought to

the immediate attention of the Committee but is only
placed before the Committee on its next (4th)
meeting on 3.12.10 fixed by notice dated 30.11.10.

3.12.2010 4th Committee Meeting No:10

Notice was given to us by letter dated 30 November Notice
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2010 which did not intimate any specific agenda for dated
the meeting. DSAI was not informed of the meeting 30.11.10
and therefore was not present.

The agenda shown on the morning of the meeting No 11

merely showed a discussion to take place Agenda for
“Perbincangan mesyuarat Jawatankuasa ...” 4th meeting

Members of the Committee were shown the

abovementioned letter by APCO CEO dated
19.10.2010 addressed to the Speaker.

YB Muar proposed that the Committee make a

decision on the matter based on the letter from the
APCO CEO and answers by Minister Koh Tsu Koon
and Minister Nazri dated 22.10.09, 18.3.10 and
29.3.10 on behalf of the Prime Minister’s
Department to 3 questions by members of the House
(“PM’s Dept answers” ) without hearing any
testimony from any of the proposed witnesses as
decided earlier. He is of the view that these
documents are sufficient for the Committee to make
a decision.

The Speaker also raised the matter of Standing

Order 82 and specifically 82(11) .

We objected on the basis, inter alia, that the Speaker

had given assurances in the Dewan Rakyat that the
Committee will investigate the matter by calling all
relevant witnesses including the relevant Members
 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 Muar’s motion was put to vote and passed by an

identical 4:2 vote as earlier.

We informed the Speaker that we were no longer

able to associate ourselves further with the
proceedings in view of the outrageous violation of
procedural unfairness and gross injustice being
perpetrated on DSAI by denying him his basic right
to be heard. We then withdrew from the proceedings
at that point.

Procedural Unfairness

8. From the foregoing chronology, it is evident that the Committee has

denied DSAI the right to:-

8.1. have legal counsel present to assist him in his defence;

8.2. hear the evidence preferred against him and test the evidence
through cross examination; and
8.3. call witnesses and to put forward his defence.
8.4. Hear him in person on the facts and issues raised by him
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Right to legal counsel

9. DSAI had made an application to the Committee to be represented by

legal counsel present to assist him in his defence during its proceedings.

10. DSAI’s application was justified in view of the fact that the Government’s
Motion was a motion that DSAI had acted in contempt of the Dewan
Rakyat for allegedly misleading the Dewan Rakyat.

10.1. It is significant that if found guilty, the punishments that could be

imposed on DSAI include imprisonment for up to 60 days1
10.2. The fact that Government’s Motion could attract such sanctions
being imposed on DSAI in the course of carrying out his
Parliamentary role as the Leader of the Opposition in itself clearly
indicates the necessity of affording DSAI the full opportunity to
defend himself.

11. It is pertinent to note that the Standing Orders specifically provide that
DSAI may be represented by legal counsel in proceedings before the
PRPC, provided that permission is first granted by the Committee.

11.1. Rule 83(7A) of the Standing Orders states that any party whose
conduct forms the subject of an investigation by a Select
Committee may be represented by counsel, if permission is granted
by the Select Committee.

12. Refusing DSAI the right to be represented by counsel therefore made a

mockery of these provisions. If the discretion to allow legal representation
was not to be exercised in the circumstances of this important case
involving no less than the Leader of the Opposition and with such serious

1
Section 29 Houses of Parliament (Privileges and Powers) Act 1952( “Act 347”) ( Annexure No 15 )
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implications for freedom of speech in Parliament, when would it ever be

exercised?

13. It is indicative on 9.6.10 the Speaker refused to even allow DSAI’s legal
counsel, Dato Ambiga Sreenevasan, who was present at the proceedings,
to address the Committee on the importance of allowing DSAI the right to
be represented at the proceedings, prior to the vote taking place.

14. Given the charge proffered against DSAI for contempt could attract penal
sanctions, the charge should be viewed as analogous to a criminal charge
in a Court of Law. As such, DSAI should have properly been afforded full
right and opportunity to defend himself against such a charge as is
provided for in criminal offences. This is a basic right protected under the
Federal Constitution as well as International Convention.

14.1. Articles 5(1) and 5(3) of the Federal Constitution provides that any
person charged for a criminal offence shall be allowed to consult
and be defended by a legal practitioner of his choice.
14.2. Article 14(3) of the International Covenant on Civil and Political
Rights states that anyone charged with a criminal offence must be
entitled to the minimal guarantee of, inter alia, having facilities for
the preparation of his defence and to communicate with counsel of
his choosing.

See: Annexure 12
International Covenant on Civil and Political Rights

15. In fact, in most modern Parliaments with a meaningful system of

parliamentary democracy in place, the right to be represented by legal
counsel when appearing before a Select Committee is guaranteed.
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15.1. For example, in the New Zealand Parliament, any person giving
evidence before a Select Committee is entitled to consult legal
counsel throughout the proceedings. Further, their legal counsel is
even entitled to submit and raise objections on their behalf, with
permission of the Select Committee.
15.2. Here DSAI was not just appearing as a mere witness, he was in
fact the alleged offender whose conduct was the subject matter of
the inquiry.

See: Annexure 13
Natural Justice before Select Committees
Parliament of New Zealand

16. We are of the view that there were no good reasons at all given by the
Speaker or any of the members of the Committee who voted to refuse
such permission.

17. We accept that the Committee had on 8.6.10 decided to allow DSAI the
limited right of having his counsel present to advise him where necessary.
However that is not the right provided under Standing Order 83(7A).

18. In any event, this serious denial of DSAI’s right to have legal counsel was
rendered academic when the Committee on 3.12.10 took the even more
draconian decision of denying him the right even to appear in person,
produce evidence and to call witnesses to defend himself.

Right to hear and test evidence

19. DSAI has also been denied the right to hear the evidence led against him
as well as to test such evidence.
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19.1. This is despite having received assurances from the Speaker

during the proceedings in the House on 22.4.10 and at the
Committee’s 2nd and 3rd Meetings on 8.6.2010 and 9.6.10 that he
would be allowed to hear all witness testimony given before the
Committee and the opportunity to ask questions of the witnesses .

20. The only “evidence” available against DSAI at the point when we withdrew
from the proceedings consisted of:-

20.1. the 3 PM’s Department answers made by Minister Koh and

Minister Nazri; and
20.2. the letter dated 19.8.2010 from the APCO CEO.

See Annexure 14 – 3 PM’s Department answers by Minister Koh and

Minister Nazri dated 22.10.09, 18.3.10 and 29.3.10.

21. It is incredulous that the majority of the Committee is wholly content on

accepting the truth and accuracy of all assertions made by the APCO
CEO without the need to hear him in person or pose any further questions
to him.

21.1. In this regard, it must be noted that the assertions made by the
APCO CEO were not statements made under oath and by any
reasonable view, could clearly be regarded as self-serving
statements given the reality of their contract with the Government
and the huge sums they were being paid.
21.2. The Committee had full power under section Section18 of Houses
of Parliament ( Privileges and Powers ) Act 1952 to require
witnesses to testify under oath
See Annexure 15
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21.3. It must also be noted that as Committee members ourselves,

despite having questions to pose to him, we were denied the
opportunity to do so.
21.4. We also note that APCO had at least on 2 occasions made
demonstrably false statements as follows:

21.4.1 First, on 30.3.10 when Bernama published their statement

denying that they worked with the Israeli government This
was exposed as false in a Straits Times article dated 31.3.10
where it was exposed that based on US Justice Department
records, they had done work for the Israeli government in
1992.
– See Annexure No: 16
Bernama article dated 30.3.10 and Straits Times dated
31.3.10

21.4.2 The second false statement is contained in APCO’s letter

dated 19.8.10 where the writer CEO Brad Staples who was
to attend as a witness makes the false statement in the 2 nd
paragraph ”... I was not permitted to testify”. This is
completely false. He knew or ought to have known that the
proceedings for the day were adjourned to a date to be fixed.
He would have called to testify on that date. No question of
the Committee refusing to hear him ever arose.

21.5 Based on these two demonstrably false statements made by

APCO, the credibility of the letter was clearly in question. It was not
reasonable to simply accept the bare assertions made there that
they had nothing to do with the creation of 1 Malaysia. It would be
obvious to any reasonable person/s that APCO’s statement was
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self-serving and could be easily procured at the request of the

Government.

21.6 With regard to the answers on behalf of the PM’s Department by

Ministers Koh and Nazri’s, we note that none of them do not
anywhere unequivocally state that APCO had no involvement in
the development of the 1 Malaysia concept whatsoever. This is
similar to the PM’s silence to the challenge issued by DSAI to
categorically deny that any of the individuals linked to APCO or its
associated firms were involved in developing the concept of
1Malaysia. No response has been made to date to our knowledge
from the PM.

21.7 There is also no specific denial in Minister Nazri’s answer to YB

Tanah Merah’s assumption in his question that APCO was paid by
the Prime Minister to launch the 1 Malaysia concept. Minister
Nazri’s answer seems to focus on “promotion” and avoids any
reference to the reference to “launch” in the question.

21.8 Their answers repeat that no communications company either local

or foreign was appointed to specifically to promote the 1Malaysia
concept but assert at the same time that APCO is appointed to
implement “comprehensive communication services”. It would be
an obvious question as to how one would separate the promotion of
the 1Malaysia concept from providing comprehensive
communication services. It is also clear from their answers that
APCO is the only company ( whether local or foreign ) that is
playing the major role in handling comprehensive or overall
communications for the Government. We also note that both
Ministers also avoided answering the portion of the questions
asking to state the cost of such services although subsequently in
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the House Nazri has confirmed that cost of APCO’s services to be

in the region of RM 76 million.

21.9 By denying DSAI his right to cross-examine all these individuals,

the Committee has severely handicapped DSAI’s ability to defend
himself. DSAI will not be able to put forward any questions to them
to test the accuracy of their statements. This is a blatant breach of
the rules of natural justice and clearly unfair to him.

Right to call witnesses and right to be heard

22. It is also significant that DSAI has been denied his right to call his own
witnesses in this matter and the right to be heard himself.

23. This is wholly inconsistent with:-

23.1. the representations made by the Speaker to the Dewan Rakyat on

22.4.2010 wherein he had assured the house that the Committee
will investigate the matter by calling all relevant witnesses including
the relevant Members of Parliament and looking at all relevant
documents, and

See: Annexure No: 1

Hansard 22.4.2010, pages 5 and 11

23.2. the decision by the Committee at the 1st Meeting on 17.5.2010 that
all relevant witnesses will be called.

24. As regards the right to call witnesses, it is significant that Rule 83(9) of the
Standing Orders expressly allows for DSAI to call such witnesses.
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24.1. In compliance with the procedure prescribed under Rule 83(9) of

the Standing Orders, DSAI had written to the Speaker on 9.6.2010
giving notice of the witnesses he intends to call to give evidence
before the PRPC.

See: Annexure 7
DSAI’s letter dated 9.6.2010

24.2. It must be noted that the Committee does not possess a discretion
to refuse to hear these witnesses save and unless the PRPC is of
the view that the witnesses are recalcitrant or will be providing
irrelevant evidence (Rule 83(11) of the Standing Orders).

24.3. However, the Committee cannot take the position that DSAI’s
witnesses are recalcitrant or their evidence is irrelevant as DSAI’s
letter was never put before the Committee and the list of witnesses
was never discussed by us.

24.4. At the very least, the Speaker should have brought DSAI’s letter
enclosing the list of witnesses to the attention of the Committee for
collective discussion to determine the nature of evidence to be
given by these individuals and its relevance to the proceedings at
hand.

24.5. Under Article 14(3) of the International Covenant on Civil and

Political Rights, another minimal guarantee that must be afforded to
anyone charged with a criminal offence is to examine, or have
examined, the witnesses against him and to obtain the attendance
and examination of witnesses of his behalf under the same
conditions as witnesses against him.
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See: Annexure 14
International Covenant on Civil and Political Rights

24.6. The reliance by the Speaker and the Committee on Standing Order
82(11) that the Committee has a discretion to refuse to hear any
irrelevant evidence was completely misplaced. At the very least
DSAI should have been heard in person as to what evidence he
required from those witnesses and why so that the Committee
could then decide whether the evidence was relevant before the
Committee could legitimately refuse to call them.

25. The refusal by the majority of the Committee to call the witnesses
requested by DSAI, or even consider their suitability to give evidence, is in
clear contravention of the Standing Orders. The further failure to treat
DSAI’s witnesses in the same manner as the other witnesses whose
evidence had been taken into consideration is clearly bad faith on the part
of the majority of the Committee.

26. DSAI had alleged in his speeches in the House that the relationship
between prominent persons in APCO, its related firms and advisors and
the persons involved in the 1 Malaysia program in Prime Minister Najib’s
office had begun well before the signing of the contract in August 2009
between APCO and the Government. He had demonstrated sufficient
circumstantial evidence in his speeches in Parliament by stating, inter alia,
that credible media reports asserted that APCO was helping Najib craft
his 100 days strategy including his 1 Malaysia message and other
initiatives. It was similarly reported that APCO had an official based in
Najib’s office since the early days of the administration ( see Hansard
30.3.10 page 34, Annexure 1). It is our view that by any reasonable
standard, this was more than a sufficient basis for the assertion that
APCO was in fact involved in the 1 Malaysia message. This is also
 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 is
now publicly known that the Government is paying up to RM 76 million for
APCO’s such services.

27. In terms of APCO’s relationship with the Government of Israel, DSAI had
in the House set out specifics of the contractual relationship between
APCO and Israel and also given details of the close links between key
persons in APCO and senior figures in the intelligence and defence
establishment of Israel. He also raised concerns about using a firm such
as APCO given its reputation for servicing clients such as former Nigerian
dictator Sani Abacha, Kazakhstan President for life Nursultan Abishuly
Nazarbayev amongst others. Raising these issues was clearly within his
role and responsibility as Leader of the Opposition given that Malaysia has
historically been a strong critic of Israel particularly for its treatment of
Palestinians. His purpose in raising the issue was to caution the
Government with regard to its relationship with APCO given APCO’s
proven antecedents.

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

DSAI’s allegation that APCO advised on 1Malaysia that it was
fundamental to such an investigation to allow the relevant witnesses to
such facts as asserted by DSAI to be called and examined upon oath. The
Committee has full powers to do so.

29. Only after examining such witnesses could the Committee reasonably
formulate an opinion as to whether there was sufficient facts established
or otherwise to show a basis for DSAI’s assertion that APCO advised on
1Malaysia. Similarly, only then could it decide whether APCO’s bare
 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 in
1723 in Dr Bentley’s Case that all law students are taught when reading
law:
"… even God himself did not pass sentence upon Adam before he
was called to make his defence”

32. The Committee must be aware of the dangerous precedent it is setting by

attempting to condemn DSAI without affording him the right and
opportunity to be heard particularly in the special facts and circumstances
of the allegation made against him. Factual issues are being hotly
disputed. They have to be investigated.

33. The refusal by the majority of the Committee to allow DSAI the right and
opportunity to:-

33.1 have legal counsel present to assist him in his defence;

33.2 hear the evidence preferred against him and test the evidence
through cross examination; and
33.3 call witnesses and to put forward his own defence.
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smacks of mala fides, is in blatant contravention of natural justice and will

render any decision made by the Committee completely unsafe and
arbitrary.

34. As analysed above, it is impossible for any reasonable and unbiased

tribunal to find DSAI guilty of misleading the house under Rule 36(12) of
the Standing Orders on the basis of the Government’s Motion on the
scant evidence ( if one may call it evidence in the first place) in the form of
the letter from APCO and the answers given by Ministers Koh and Nazri.

The grave implications for freedom of speech for Parliamentarians

35. As stated above, we withdrew from the proceedings at the 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. The
majority of the Committee were no longer reasonable and objective
inquirers but were now clearly acting mala fide for ulterior purposes.

36. We have no illusions that a finding of guilt will be returned by the

remaining members of the Committee in respect of the motion referred by
the House on DSAI. We have no knowledge however of the punishment
that the majority of the Committee has recommended.

37. These proceedings were started because DSAI made certain statements
in the House with regard to the relationship between APCO and the
Government and the Government of Israel. What seemed to sting was
 23

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

sentencee’ in the matter referred to the Committee by the House.

38. As stated above, DSAI had alleged in his speeches in the House that the
relationship between prominent persons in APCO, its related firms and
advisors and the persons involved in the 1 Malaysia program in Prime
Minister Najib’s office had begun well before the signing of the contract in
August 2009 between APCO and the Government. He had demonstrated
sufficient circumstantial evidence in his speeches in Parliament by stating,
inter alia, that credible media reports asserted that APCO was helping
Najib craft his 100 days strategy including his 1 Malaysia message and
other initiatives. It was similarly reported that APCO had an official based
in Najib’s office since the early days of the administration ( see Hansard
30.3.10 page 34. It is our view that by any reasonable standard, this was
more than a sufficient basis for the assertion that APCO was in fact
involved in the 1 Malaysia message. This is also reinforced by the fact that
the Government officially engaged APCO from August 2009 with the
assignment of “comprehensive communications” for “a broad range of
reform initiatives” ( see Hansard 30.3.10 page 33). It is now publicly
known that the Government is paying up to RM 76 million for APCO’s
such services.

39. In terms of APCO’s relationship with the Government of Israel, DSAI had
in the House set out specifics of the contractual relationship between
APCO and Israel and also given details of the close links between key
persons in APCO and senior figures in the intelligence and defence
establishment of Israel. He also raised concerns about using a firm such
as APCO given its reputation for servicing clients such as former Nigerian
dictator Sani Abacha, Kazakhstan President for life Nursultan Abishuly
Nazarbayev amongst others. Raising these issues was clearly within his
role and responsibility as Leader of the Opposition given that Malaysia has
 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 APCO’s
proven antecedents and called for a cancellation of the contract with
APCO. He had also raised concerns about serious breaches of security
with regard to IT systems for the police involving Israeli intelligence
agents.

40. In our view, these assertions by DSAI were fully within his scope and
powers as a Member of Parliament and Leader of the Opposition to make.
In fact, he was duty bound to do so.

41. The offending line which seems to be treated a matter with much sting that
APCO advised the Government on 1 Malaysia is clearly fair political
comment given the circumstantial facts he had adduced in support as set
out above.

42. Using Standing Order 36(12) in relation to the offence of “misleading

Parliament” against DSAI is clearly a complete misunderstanding and
gross misuse of that rule. Using Standing Order 36(12) in this context will
result in a serious threat to freedom of speech of a member of the House.

43. These freedoms are not to be taken lightly. They are protected by statute
in the form of the Houses of Parliament ( Privileges and Powers ) Act 1952
(Revised 1988, Act 347) ( see Annexure 15). Section 3 reads as follows:

Freedom of speech and debate.

There shall be freedom of speech and debate or proceedings in the House and
such freedom of speech and debate or proceedings shall not be liable to be
impeached or questioned in any court or tribunal out of the House.

44. Immunity for members of anything said or done before the House is
provided in Section 7 as follows:
 25

7. Immunity of members from civil or criminal proceedings for anything

done or said before the House.

No member shall be liable to any civil or criminal proceedings, arrest,

imprisonment, or damages by reason of any matter or thing which he may have
brought by petition, bill, resolution, motion, or otherwise, or have said before the
House or any committee.

45. It is also provided in section 32 of the same law for avoidance of any
doubt that members of Parliament in Malaysia shall hold the same
privileges, immunities and powers as exercised by members of the House
of Commons in the United Kingdom thereby preserving all the common
law privileges and immunities granted to parliamentarians.

46. Members of the House need to fully appreciate that whilst Rule 36(12) of
the Standing Orders serves to prohibit members of Parliament from
misleading the House and is applicable to all members of Parliament, by
convention, the established convention in similar Commonwealth
Parliaments such as the United Kingdom, Canada and Australia is that it is
generally used against Cabinet Ministers of the Government to ensure that
they do not mislead Parliament.

46.1 It is to ensure that Cabinet Ministers exhibit the highest level of

sincerity and honesty when furnishing their replies to Parliamentary
queries and is central to the constitutional convention of “Ministerial
Responsibility” to Parliament.

46.2 A fundamental feature of the application of the rule is that the

offending Minister/member must knowingly mislead the House by
stating facts which he knows to be false. This can be easily
demonstrated by the only example mentioned in Erskine May
“Parliamentary Practice” ( see page 132)(Annexure 17) which took
place in the House of Commons in 1963 where John Profumo, as
the then Secretary for Defence, knowingly made the false
 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 attaché from the Soviet
Embassy. Subsequently it was publicly revealed that he did have
an affair with Ms Keeler and then resigned as a Minister. The
House subsequently found him guilty of a grave contempt for
misleading the House.

47. The rule was never intended to be used as a tool to punish any member of
the House for providing a different interpretations of the same facts or
stating political viewpoints.

48. Members of the Government may feel stung with the statement that a
public relations company with known links to Israel had advised it also on
1Malaysia. That is part of the cut and thrust of debate in Parliament and
must be recognized as such.

49. DSAI’s statements were not only fair political comment but were also
supported by factual assertions. Regrettably he was subsequently
prevented from adducing documents and evidence by himself and through
witnesses to establish those facts.

50. The Government’s stance in choosing to exaggerate the effect of such

comment, and to further mount a motion for contempt on the back of such
comment, must be seen for what it truly is - an attempt to stifle free
speech in the Dewan Rakyat.

51. If we choose to turn a blind eye now and allow the continued use of
Standing Order 36(12) against DSAI, it would form a dangerous precedent
that would only serve to impede the ability of the members of the Dewan
Rakyat to effectively carry out their constitutional role as a check on the
 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.Sivarasa
Member for Bukit Gelugor Member for Subang