Wednesday, July 13, 2016

Lim Guan Eng - Not just a Legal Question, But also a matter of Morals and Principles?


- now facing allegations of corruption, and has been charged in court for corruption - and, it concerns his possible abuse of position as Chief Minister...

Well, legally - he does not have to resign as Chief Minister - and the Malaysian Bar statement is right on this... he is to be presumed innocent until proven guilty... In fact, legally even if he is found guilty - he still need not resign - no need until he has exhausted all his avenues of appeal...

But, the question really is not simply a LEGAL question but really a MORAL question...since he is no mere Member of Parliament or ADUN - but this is the Chief Minister, the one who effectively wields the Executive Power in Penang...could he affect potential witnesses who are State employees? Could he still directly and/or indirectly tamper with evidence?  The Malaysian Bar also acknowledges the risk, when they say...'However, the risk cannot be ignored if there is a need for oral witness evidence — independently or in addition to the evidence contained in the formal documents — and the relevant witnesses are his subordinates.'

Knowing Lim Guan Eng, I do not think that he has done anything wrong - but my opinion, or the opinions of other supporters and friends really do not matter now... for the issue now, is what should a Prime Minister, Minister, Chief Minister, Menteri Besar, State Exco member or head of departments do when faced with similar allegation of corruption and/or abuse of power. Some may say it is a 'selective targetting' of political opponents by the BN Federal government - that too matters not. The same could also be said if it was the Prime Minister or some BN Minister who were facing a similar situation..

In some countries, Prime Ministers have stepped down when such allegations have been made - even when there is yet any charges filed in court? 

Remember, many wants Najib to resign because of that large sum of money found in its account, about the matters related to 1MDB, etc..

Should Guan Eng set the example - and step aside as Chief Minister? Surely, the Opposition government would have suitable alternatives who can be Acting Chief Minister (if Guan Eng does not resign but merely take a leave of absence) or Chief Minister if Guan Eng chooses to resign...

Will his resignation on a matter of principle affect his credibility, or the credibility of the DAP, or the credibility of the Opposition Coalition? I think not - in fact, I believe that it will be have positive influence and will garner greater support - it may show how Guan Eng is more principled...

Do the people of Penang want Guan Eng to remain as Chief Minister...or to leave? Well, that really is the question, is it not? Maybe, Penang should have a Referendum...

Well, some may say, why go back to people and have a Referendum - all that is needed is to go back to the State Legislative Assembly, table a motion of Confidence and show that the people's reps(the ADUNs) in Penang still want Guan Eng to remain... well, then Najib can say the same - the majority of MPs in Parliament clearly still want him to be PM??? 

Thus, maybe going back to the people and having a Referendum may be better option...

What will Guan Eng do now ultimately depends on Guan Eng? the DAP? the ADUNs in Penang? 



Press Release | Presumption of Innocence is the Cornerstone of the Criminal Justice System and Must be Respected

Monday, 11 July 2016 07:20pm
ImageThe Malaysian Bar refers to the recent prosecution of Penang Chief Minister YAB Lim Guan Eng and Phang Li Koon.  

YAB Lim Guan Eng was arrested by the Malaysian Anti-Corruption Commission (“MACC”) on 28 June 2016 and detained overnight before being charged on 30 June 2016 under Section 23 of the Malaysian Anti-Corruption Commission Act 2009 (offence of using office or position for gratification) and under Section 165 of the Penal Code (public servant obtaining any valuable thing, without consideration, from person concerned in any proceeding or business transacted by such public servant).  

Phang Li Koon was also charged under Section 109 of the Penal Code, read together with Section 165, for purportedly abetting YAB Lim Guan Eng in the commission of the alleged offences.

MACC began its investigation into allegations of corruption against YAB Lim Guan Eng in March 2016.[1] YAB Lim Guan Eng has been apparently fully cooperative in the investigation.[2] It was reported that he voluntarily presented himself for questioning by the MACC on 6 May 2016[3] and on 7 May 2016[4] for 9 hours and 10 hours, respectively.  He attended questioning again on 22 May 2016, and acceded to MACC’s request to inspect his home.[5]  

As YAB Lim Guan Eng had been cooperating willingly in the MACC’s investigation, there appears to have been no basis for MACC to have arrested and detained him overnight on 29 June 2016.  Enforcement agencies should never resort to the power to arrest and detain, to intimidate, harass or victimise an accused person.  This would be plainly a blatant misuse of power by any enforcement agency.

YAB Lim Guan Eng’s bail set at RM1 million was extraordinarily high and thus punitive.  The purpose of bail is to secure the attendance of the accused person in court for the trial.  In this instance, there seems to be nothing to suggest that YAB Lim Guan Eng posed a flight risk.  Excessive bail would be perceived as punishing or penalising an accused person prior to the trial, and would be manifestly unfair to the accused person.

The Malaysian Bar is aware that there have been calls for YAB Lim Guan Eng to take a leave of absence, or to resign, from his position as the Chief Minister of Penang pending the conclusion of the prosecution against him.  There is no strict legal requirement for him to do so.  However, there appears to be instances where a public official facing prosecution for an alleged criminal offence has vacated office (temporarily or permanently), if there is a real or apparent risk of direct or indirect interference by the official in investigatory and/or prosecutorial decisions.  

As the prosecution of YAB Lim Guan Eng has already commenced, the investigation would presumably have been completed.  There should no longer be any possibility of interference with the investigation. 

With regard to the prosecution, the risk of interference would depend on the evidence that is to be adduced by the prosecution in support of the charges.  On the face of the charges, the evidence is uncertain and it would be premature at this stage to decisively conclude whether YAB Lim Guan Eng should still remain in office.  For example, if the prosecution intends to rely on formal documents (e.g. minutes of state committee meetings) that only require identification by relevant witnesses to confirm their authenticity, the risk of interference in the prosecution’s case can be disregarded.  These documents should already be in the possession of the prosecution and their contents should be self-explanatory.  However, the risk cannot be ignored if there is a need for oral witness evidence — independently or in addition to the evidence contained in the formal documents — and the relevant witnesses are his subordinates.

The Malaysian Bar reiterates that all accused persons must enjoy the presumption of innocence and, pending the determination of a case by the court, no accused person should be treated as if he or she is guilty of a criminal offence.

Steven Thiru
Malaysian Bar
11 July 2016

[1] “MACC to open investigation paper on Lim Guan Eng over bungalow
”, Astro Awani, 18 March 2016.

[4] “MACC wraps up probe on Guan Eng after 10-hour grilling”, Malaysiakini, 7 May 2016.

[5] “MACC visit to Guan Eng's home not a raid, says Gobind”, Malaysiakini, 22 May 2016.

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