Saturday, May 12, 2018

Anwar Ibrahim - Will this be the 1st 'abuse of power' by new government?

Our new Prime Minister of the Opposition Coalition has already announced that steps are being taken to seek Pardon of the King for Anwar Ibrahim(the un-elected 'Head' of PKR)...who is currently serving out his prison sentence after being found guilty and convicted for the crime of sodomy - which really is very different from crimes related to speaking up, highlighting or fighting for justice and human rights...It is said that Anwar's prison sentence will end on 8/6/2018 and he will be released on that day.

Anwar Ibrahim

PARDON - well, without a pardon on having served one's sentence, be it imprisonment and/or fine of RM2,000 or above, a Malaysian will not be able to contest to become a MP, etc until a further 5 years according to our Federal(and also State) Constitutions....unless they receive a royal pardon.

Article 48 now disqualifies persons who have been convicted of ANY offence and sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon. Article 48(3) states this period of disqualification   ceases at the end of the period of five years beginning with the date one was released from custody…’ or the date on which the fine was paid.

Now, if such pardon is sought for all persons who are currently being barred from standing for elections - then it is FAIR and JUST - but, if such a pardon is just sought for Anwar Ibrahim, is does not feel right. Would such 'special treatment' not be seen as wrong...as being discriminatory ...as being an abuse of power of the current government?

REMEMBER, that under the UMNO-BN government, many felt that some of the UMNO-BN political leaders and even their 'friends/family members' were given preferential treatment when it comes to the administration of justice. The way the police, enforcement agencies and even the Public Prosecutor dealt with some of this cases. Ordinary Malaysians were arrested, remanded,....charged and tried - but alas, many others including 'Najib' was accorded a different treatment - there was no arrest, no remand,...etc....even 'orders' by the Public Prosecutor/Attorney General to 'stop investigations'..

Special treatment for 'political friends' by current governments is not a new phenomena - During the UMNO-BN rule, we saw Mokhtar Hashim, who was convicted for murder, who first had the death sentence commuted to imprisonment, and later pardoned and released. 

More recent case would be the case involving the then UMNO Women Chief's husband - where mid-stream of the trieal, the accused was 'acquitted' - Odd, because normally such cases would result in a 'discharge not amounting to an acquittal'(DNAA). If there is an acquital, it means that even if sufficient evidence is found later on, he/she cannot again be charged for the SAME offence. This is the reason, why normally in mid-trial, one is only given a 'discharge not amounting to an acquittal'(DNAA). However, after the close of prosecution case, that is after the prosecution has submitted all evidence, and the court determines there is insufficient evidence to proof the crime - usually, it will result in an acquittal.

Of course, we also need to see the cases of Kasitah Kadam and Eric Chia...how prosecution can be unsuccessful in securing a conviction...for your reading pleasure...Disturbing trend in 'graft cases' in Malaysia - Inadequacies of Prosecution or 'something else'?

The loss of confidence in the ADMINISTRATION OF JUSTICE in Malaysia is one of the factors, in my opinion that has led to the failure of government of Malaysia under the then UMNO-BN rule. People need to be confident that the administration of justice is in accordance to the Rule of Law - and no person/s are excluded or given preferential treatment.

It is the Malaysian courts that tried and found Anwar guilty of the crime. There have been so many appeals and applications but still the courts found him guilty. Was the courts wrong? Was the independence of the Judiciary compromised? Possibly?

But in Anwar's case, the fact that he continued to file many cases, including defamation suits, some of which he has won in the same Malaysian courts - indicates that he did not take the position that the Malaysian judiciary was 'compromised'...To say, that it just did not do the right and just thing when it came to his personal criminal conviction thus lacks consistency...does it not?

PARDON - well, it is in no way an indication that he was (or was never) guilty - but it is only a 'FORGIVENESS'.

It is good that Anwar has also now filed a court application to squash his conviction(see FMT report below). The judiciary must stay independent and not be affected by the fact that there is now a new PH government, no more Najib's UMNO-BN government. Such consideration are irrelevant - they must decide independent of any external influence, or concerns about their future and/or promotion prospects in the Judiciary under now a different government. 

PERSONALLY, the matters that currently disqualify a MP, Senator and/or ADUN from continuing to be MP, Senator or ADUN is outdated, archaic and may be considered unjust.

WHY should a person who has served his/her sentence - be it serving a jail sentence, or paying a FINE still continue to be disqualified for a further 5 years thereafter from contesting to be an MP and/or ADUN. This is most unjust and discriminatory - Once you have served your sentence, you should be automatically free and equal as any other citizen - that includes the ability to contest to become an MP or an ADUN - which ultimately, the people, in their wisdom will decide to vote for you or not.

In fact, I did table a Motion at the recent Malaysian Bar AGM on this very subject matter, which I would like to share with you now...(The issue is a new issue, and sensing that more time was needed by members to further consider, reflect and decide on this new matter  - After a bit of discussion, I decided to not to proceed to a vote ...but most likely, I may table it again in 2019)

MOTION TO REMOVE LEGAL DISQUALIFICATIONS AND RESTORING PEOPLE’S RIGHT TO CHOOSE WHO THEY WANT AS THEIR MEMBERS OF PARLIAMENT

1-          People should have the right to choose their own peoples’ representative, be it a Member of Parliament and/or State Legislative Assemblyperson (ADUN).

2-          Article 48 and 50 of the Federal Constitution deals with the disqualification of Members of Parliament, and the disqualification of candidature in a Parliamentary election.

3-          These disqualifications in law, deny peoples’ free choice of their Member of Parliament, as some are disqualified from even contesting in elections. Many of these disqualifications in law, has existed unquestioned for a very long time. As such, time has finally come to review and remove all(or some) of these disqualifications, that may be unjust and/or unreasonable at this time for Malaysia.

4-          In recent years, in Malaysia, we see several persons have been disqualified from continuing to be a peoples’ representative, or may even be denied the right to stand for upcoming elections.

5-          Lim Guan Eng(DAP), Anwar Ibrahim(PKR), P. Uthayakumar(HRP) and  Mat Yusoff Abd Ghani(UMNO) are some of the politicians that have all fallen victims of these disqualifications in the past.

6-          Others politicians that face the risk disqualification as an MP or disqualification in standing in  future elections  include Pandan MP Rafizi Ramli, Batu MP Tian Chua and Wong Tack(DAP).

7-          What is disturbing is that the crimes that some of these people are being (or were) convicted for are offences related to freedom of expression, freedom of opinion and even peaceful assembly. The draconian Sedition Act, which the Malaysian Bar and others have called for its abolition, has also been used. Persons who highlighted alleged crimes and wrongdoings also are being charged and convicted.

8-          It must be pointed out, that many others including human rights defenders and civil society, may also be similarly affected by such prosecution and convictions.

9-          The government of the day has much power and/or influence in determining who be charged in court and even who be pardoned. Prosecution has the power to decide on which cases to prosecute, and which not to. The concern is not just with regard to the current government, but any government in the future, who could use the powers they possess in the administration of justice against their political opponents and even human rights defenders.

10-       The time has come for a review of the existing grounds for disqualification that exist in our laws. Some of this will need to repealed, and some may have to be amended.

11-       Article 48 now disqualifies persons who have been convicted of ANY offence and sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon. Article 48(3) states this period of disqualification   ceases at the end of the period of five years beginning with the date one was released from custody…’ or the date on which the fine was paid.

12-       There is a need to review whether we this disqualification should be limited to  offences of corruption, murder, robbery, money laundering, breach of trust, malfeasance, treason, rape and/or other serious offences. Now, the law says any offences, which could also mean traffic offences and even some other minor offences committed when promoting, defending and/or exercising human rights.

13-       In the United States, “indictment for or conviction of a felony offense is not a constitutional bar to be elected or re-elected a Member of Congress, other than a conviction for treasonous conduct after having taken an oath of office [...]The [disqualifications] to serve in Congress were intentionally kept at a minimum by the framers of the Constitution to allow the people broad discretion to send whom they wish to represent them...”

14-       In Finland, offences do not lead to ineligibility any more, since the amendment of the Criminal Code of 1995. Nor do they in the Czech Republic, Slovenia, Sweden
and Switzerland(since 2007)

15-       The provision about sentence of imprisonment ‘of not less than one year’ also need to be reviewed, and reasonably maybe should emulate what is practiced in Victoria, Australia which now only disqualifies persons sentenced to 5 years or more. In many jurisdictions, the disqualification only applies to when one is serving the sentence, and not after release.

16-       The fact that one has been fined, should really not disqualify the person anymore, after he/she has paid his/her fine.

17-       In many jurisdictions, once the sentence is served, the said person can immediately contest for elections. One may not contest for elections for additional number of years only for offences like treason.

18-       A person who has already served their prison sentence, whipped and/or paid their fine should really not be further discriminated as to his/her personal rights, which includes the right to stand for elections with the hope of being elected a Member of Parliament. He/she has paid for crimes committed, and to further discriminate thereafter is not just.

19-       It must be pointed out that the government of the day do have some influence also with regard to obtaining of pardons, to allow a person convicted, and disqualified from contesting for an additional 5 years after being released, to be free from such disqualifications and to contest immediately. Such power could be self-serving and abused, and as such should really be removed from our law.

20-       A person could become a bankrupt for various reasons, but how is it that a bankrupt cannot be a Member of Parliament, although bankruptcy may be a reasonable bar to the holding of an Executive Position as Prime Minister or a member of the Cabinet.

21-       The Federal Constitution contains these ‘disqualifications’ for a Member of Parliament, as State Constitution and law contain similar ‘disqualifications’ for State Legislative Assemblypersons. Both Federal law and State Law, including Constitution could any time be amended by the people, through the Parliament and/or State Legislative Assembly. Laws that have existed for long can always be changed to become more just and better.

22-       The Malaysian Bar was previously restricted by law from choosing young lawyers to lead and/or serve in the Bar Council, State Bar Committees and other Committees of the Bar, but driven by a commitment that we, the members of the Bar, must have the right and freedom to choose who we want as our leaders, we fought, and were successful in removing some disqualification in law.

23-       In a democracy, the people must always have the freedom and right to choose who they wish to represent them as Members of Parliament and/or peoples’ representatives. People will certainly consider all aspects, including pending and past allegations, charges, convictions and all matters of concern before choosing our people’s representative when we vote. There may be no more justification for laws disqualifying certain persons from even contesting save maybe age and the need to be a Malaysian citizen.

THEREFORE, it is hereby resolved that:

A.           That the Malaysian Bar calls for the right and freedom to choose and elect peoples’ representatives be restored fully to the people, and that all existing legal disqualifications that exist in law, that now even prevents an elected representative continuing to serve as Member of Parliament (MP) and State Legislative Assemblypersons(ADUN) or to stand for elections be forthwith reviewed, amended and/or repealed to enhance people’s choices of the their representatives.
B.           That the Malaysian Bar calls on the Malaysian people, State and Federal Government to do the necessary review, amendment and repeal of laws that now unjustly and/or discriminately disqualify persons the right to offer themselves as candidates in democratic elections, which affects people’s available choices of their representatives in Parliament.
C.           That the Bar Council be empowered to do all that is necessary to protect and promote democracy and the freedom of people to choose their own peoples’ representative, and/or to offer themselves as candidates in elections of peoples’ representatives.



Proposer – Charles Hector (BC/C/712)
Dated:- 7/3/2018
 


File fresh review to quash sodomy conviction, says Anwar’s ex-lawyer

 | May 12, 2018

Maintaining that the evidence against Anwar Ibrahim was flawed, S N Nair says getting a court judgment to that effect would be better than getting a pardon. 

Jailed PKR leader Anwar Ibrahim has yet to file an application for clemency although he is expected to be freed on June 8. (Reuters pic)

PETALING JAYA: Anwar Ibrahim could file a fresh review to overturn his sodomy conviction in an attempt at an earlier return to active politics instead of going through a pardons process, according to his former lawyer.

“The law does not stop Anwar from filing another review in his attempt to be acquitted of the alleged criminal offence,” S N Nair said.

The lawyer, who was in Anwar’s legal team at the trial stage until 2012, said the PKR de facto leader could move the court to give him an early hearing by filing a certificate of urgency.

“If a newly constituted Federal Court bench finds the conviction is unsafe, Anwar will be freed of the charge,” he told FMT.

Nair was responding to Prime Minister Dr Mahathir Mohamad telling a media conference yesterday that the Yang di-Pertuan Agong had indicated he was willing to grant Anwar a full pardon.

Anwar has yet to file an application for clemency although he is expected to be freed from prison on June 8.
Anwar’s supporters maintain that the sexual misconduct charge against him was politically motivated.

Nair said Anwar would have no conviction record if he followed the legal route, and that he could return to mainstream politics within a short time.

“There should be no taint in Anwar’s record,” he said, adding that he could then contest in a by-election and later become prime minister.

Nair, who was actively involved in the trial, said he was convinced that the evidence of investigation officer Jude Pereira was seriously flawed.

On Dec 14, 2016, Anwar failed to clear himself of the sodomy conviction after the Federal Court dismissed his review application.

His lead counsel Gopal Sri Ram had raised the issue of bias as the Prime Minister’s Office had swiftly issued a statement five minutes after the court upheld the conviction.

Another ground was the conduct of ad-hoc prosecutor Muhammad Shafee Abdullah, who went on a road show to run down Anwar and his lawyers soon after the final appeal ended.

In March 2014, the Court of Appeal overturned a 2012 High Court acquittal of Anwar over a charge of sodomising his former aide Mohd Saiful Bukhari Azlan in 2008.

The apex court on Feb 10, 2015, upheld the conviction and sentence.

Anwar had filed civil suits against the government of the time, claiming that the court convicted him of sexual misconduct based on the perjured evidence of Saiful Bukhari, the crown prosecution witness.

He said fabricated evidence in the form of an alleged DNA sample was used to support Saiful’s evidence.

Anwar also filed another suit to quash his conviction, this time on grounds that the court did not come to a just decision as Shafee had allegedly received RM9.5 million from former prime minister Najib Razak.

Online portal Sarawak Report reported that Shafee had received the money in two tranches in 2013 and 2014.

Both cases are on appeal before the Court of Appeal. - FMT News, 12/5/2018


 



 

1 comment:

Jerree Pillai said...

Charles Hecktor, with all your knowledge on human rights,I fail to see an iota of wisdom. To make my point, just look at all the western developed nations now. They face greater abuse of human rights, simply by not dishing out what the people want and why the people voted in their politicians into power.These very politicians started implementing their own personal agenda. So reading this callous effort to undermine the will of the people is ridiculous. Lacks wisdom.