#For your information, access to this Blog was blocked - but thankfully I have managed to regain access now. I really hope our new PM and government will not block access to blogs and websites.In fact, access to websites that has been blocked during the time of Najib, should be restored immediately by the government who is committed to freedom of speech, expression,opinion and also press freedom...
Anwar Ibrahim has received full pardon from the King? What does it mean?
Anwar Ibrahim has received full pardon from the King? What does it mean?
Does it mean that his previous and present criminal conviction by the courts have been overturned - i.e. he is now been declared 'Not Guilty'? Well, for his conviction to be overturned, only the courts can do that...
What powers that a King has when it comes to pardon is only to commute sentences or even grant early releases.
For a person sentenced to death, the King(and/or Rulers of State) has the power of commuting that sentence to imprisonment..Another example is that for a person sentenced to 10 years, the King has the power to reduce that sentence to 1 year, or even to end today.
In the case of Anwar Ibrahim, who was supposed to be released on June 8, the King must have reduced his sentence to enable him to be immediately released.
Now, as we know, our laws states that a person released from prison cannot still stand for elections to become an MP unless he receives the King's pardon. Well, it seems that Anwar has also got this requisite pardon which means that if there is a by-election for any Parliamentary seat, Anwar can now contest in that election and become a Member of Parliament, if he wins the said election.
42 Power of pardon, etc.
(1) The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di- Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.(2) Subject to Clause (10), and without prejudice to any provision of federal law relating to remission of sentences for good conduct or special services, any power conferred by federal or State law to remit, suspend or commute sentences for any offence shall be exercisable by the Yang di-Pertuan Agong if the sentence was passed by a court-martial or by a civil court exercising jurisdiction in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya and, in any other case, shall be exercisable by the Ruler or Yang di-Pertua Negeri of the State in which the offence was committed.
Now, the power of Pardon is not a power of the King that he can exercise on his own - he is required to act on the advice of the Pardons Board which seems clear in the reading of Article 42 together with Article 40. That means, if and only the Pardon Board advises to pardon, then only the King can pardon. So, in Anwar's case, I presume that the Pardon Board advised that Anwar be pardoned...
40 Yang di-Pertuan Agong to act on advice.(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di- Pertuan Agong shall accept and act in accordance with such advice.
Now, with regard the Pardons Board, in my opinion, the King in this case must act 'on the advice of a Pardons Board'.
So now, when we look at the Constitution, who is in this Pardon Board, for the FT Kuala Lumpur, Well, it is:-
1 - Attorney General of the Federation,
2 - the Minister responsible for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya(and this means for now, it will be new PM Mahathir) and
3 - Not more than three other members,
It would be good if we are told what are the names of these persons in the Pardon Board that resulted in Anwar's pardon.
Now, in Article 42(9), it is stated that '(9) Before
tendering their advice on any matter a Pardons Board shall consider any
written opinion which the Attorney General may have delivered thereon.' The requirement is merely that they have to consider - not necessary agree or follow.
Given that, the question arises was Attorney General Mohamed Apandi bin Haji Ali was the one who carried out these duties, i.e. providing the 'written opinion', and was also part of the Pardon Board.
Did the Attorney General provide any opinion?
Now, on 15/5/2018 - we read in media reports that the Prime Minister had asked Attorney General Mohamed Apandi to take leave, and it was also reported that he took a 30 day unrecorded leave.
The Pardon Board met on 16/5/2018, and the final outcome was that Anwar wad pardoned and released immediately from prison.
Now, thereafter, the Solicitor General took over the functions and powers of the AG - and, most likely it was the Solicitor General who presented the required 'written opinion', and was also part of the Pardon Board that advised the Yang Di-Pertuan Agung. [To be able to study the case, and prepare the 'written opinion' within such a short time would be most remarkable work by the Solicitor General.]
ELEVENTH SCHEDULE (Federal Constitution)
40A
Solicitor General to exercise powers of Attorney General-
(1) Unless in any written law it is otherwise expressly provided, the Solicitor General may perform any of the duties and may exercise any of the powers of the Attorney General.
(2) Where the Yang di-Pertuan Agong or any other person has lawfully delegated his powers to the Attorney General such delegation shall, unless expressly provided be deemed to be delegation of powers to both the Attorney General and the Solicitor General.
Can the Prime Minister ORDER the Attorney General to take leave? Certainly, he cannot and should not - all he can do in fact is maybe suggest or recommend, that is all, and the AG can chose to take leave (or not). The INDEPENDENCE of the Attorney General, who is also the Public Prosecutor is important - The PM and/or the Government should NOT be able to order or compel the AG to do anything. Many believe that under the UMNO-BN, the manner that the AG acted especially with regard to crimes committed by the Prime Ministers and friends of the 'government' was wrong. This includes his inaction with regard to cases connected to the 1MDB and even with regard the monies found in the personal account of Najib.
What about removing an Attorney General - can the Prime Minister and the new government do so?
YES - many Malaysians want a NEW Attorney General for Malaysia now, and they want Apandi Ali to go. Well, Apandi Ali can resign at any time - and, personally, that is what I hope he will do...but if he does not, then the removal of the Attorney General is not that easy.
The Federal Constitution was clear about the removal of the Attorney General, but in 1960, the Constitution was amended. In the pre-amendment Constitution, Article 145(5) read as follows...
(5) the Attorney General may at any time resign his office but shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.”.
But, in our constitution today, on the question of removal of an Attorney General, all that is stated in 145(5) and 145(6) is as follows:-
(5) Subject to Clause (6), the Attorney General shall hold office during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office and, unless he is a member of the Cabinet, shall receive such remuneration as the Yang di-Pertuan Agong may determine.
(6) The person holding the office of Attorney General immediately prior to the coming into operation of this Article shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.
Art 145(6) seems to suggest that 'shall not be removed
from office except on the like grounds and in the like manner as a judge
of the Federal Court' only applied before the 1960 amendment came into force. How will AGs after that be removed is unclear? But the very fact that Art 145(6) was inserted gives an indication as to how an AG who refuses to resign can be removed...'in the like manner as a judge
of the Federal Court', which is not an easy procedure.
Apandi Ali now knows that the new Prime Minister, and most probably the new Pakatan Harapan, has no longer confidence in him and would want him to tender his resignation. It may also what Malaysians expect. The Malaysian Bar has also called for Apandi to resign..
BAR - Attorney General, Chief Justice, and President of the Court of Appeal Must Step Down?
The King appoints an AG acting on the advice of the Prime Minister, however it seems that the King may have no power to remove an AG.
Some are of the opinion that since the words 'during the pleasure of the Yang di-Pertuan Agong', it implies that the Yang Di Pertuan Agong can also remove an AG when it is no more his 'pleasure' that he should continue to be the Attorney General(AG).
Normally, an Attorney General's would end his term on him/her achieving retirement age...but alas, when Apandi Ali was appointed as the Attorney General, he was appointed on contract for a period of three(3) years on 27/7/2018, and his 3 year term will end on 27/7/2018.
Now, to complicate matters, it was reported in the media on 8/4/2018, that Apandi's a further three(3) year contract that will end only in 2021. Interestingly, this news came out after Najib had dissolved Parliament on 7/4/2018.
So, for a fixed contract Attorney General, there may be other problems...When the King appointed this AG - was it for 3 years? Has the King appointed Apandi for a further 3 years in the advice of Najib? There are concerns ...and we may look at it further at a later time..
Personally, I will call on Apandi Ali to simply resign NOW...
In any event, concern about Anwar's pardon causes some worry...was this action of pardoning him as it was done right....it was a fulfillment of an agreement between the 4 Pakatan Harapan parties - but one wonders whether this was an 'abuse' of power of government...We may all want it, but for a new government who proclaims commitment to rule of law - it must be shown that rule of law is never compromised...ever.
PM and the new Pakatan Harapan government should not abuse their power especially for preferential treatment for their own political party, fellow politicians, etc..
MALAYSIANS are watching - remember it was our anger about the abuses of power of the previous UMNO-BN government that led us to vote out UMNO-BN, and vote in an alternative government in Pakatan Harapan. Let the people not be disappointed by being 'similar' to the former Prime Minister and government..
I must state that this is my opinion, and I am open to other opinions and perspectives...
See also related earlier post
Anwar Ibrahim - Will this be the 1st 'abuse of power' by new government?
www.freemalaysiatoday.com/category/nation/2018/04/06/parliament-is-dissolved/Apr 6, 2018 - “His Majesty (the Agong) has agreed to the dissolution of the Parliament from tomorrow, Saturday, April 7, 2018,” Najib Razak said today in a special speech broadcast live on public television channels, and attended by cabinet members.
Apandi gets three-year term extension
Posted on 8 April 2018 - 04:03pm
Last updated on 8 April 2018 - 06:45pm
Last updated on 8 April 2018 - 06:45pm
KUALA LUMPUR: Tan Sri Mohamed Apandi Ali's (pix) term as Attorney-General has been extended for three years until 2021.
Mohamed Apandi, 68, said his second term of service shall commence upon expiration of the first term contract on July 27, 2018.
"The new term will, therefore, expire on July 27, 2021," he told Bernama via WhatsApp when asked to confirm his extension of service.
Asked on his feeling after the government agreed to extend his
contract, Mohamed Apandi vowed to uphold the Rule of Law in the country
and would work closely with stakeholders in the administration of
justice for peace and harmony of the country.
Kelantan-born Mohamed Apandi was appointed as Attorney-General on
July 27, 2015, replacing Tan Sri Abdul Gani Patail whose tenure was
terminated due to health reasons.
He graduated with a Bachelors of Law degree from the University of
London in 1972 and obtained his barrister-at-law from the Inner Temple,
London, a year later.
Mohamed Apandi began his legal career as a magistrate at the
magistrate's court in Kuala Terengganu in 1973 and in 1975, he was
appointed as director of the Legal Aid Bureau in Kota Baru, Kelantan.
He was a Federal Court Judge before being appointed as the Attorney-General.
As Attorney-General, Mohamed Apandi made his first court appearance
on June 30, 2016, when he led the prosecution team in corruption cases
involving Penang Chief Minister Lim Guan Eng and businesswoman Phang Li
Koon at the Penang High Court.
He also personally led the team in the government's appeal against a
landmark court ruling which declared Section 3 (3) of the Sedition Act
1948 as unconstitutional in a case of Sri Muda Assemblyman Mat Shuhaimi
Shafie, at the Federal Court on Feb 22, 2017. — Bernama - The Sun Daily, 8/4/2018
Malaysia's Anwar Ibrahim pardoned, walks out of hospital
KUALA LUMPUR (May 16): Jailed Malaysian leader Anwar Ibrahim was granted a full pardon on Wednesday and walked free out of a hospital in Kuala Lumpur where he has been undergoing treatment.
Smiling and waving to supporters, Anwar, 70, was wearing a black suit with a tie. He was surrounded by his family, lawyers and prison guards before getting into a car and driving to the palace for an audience with the king.
"The pardons board has already met and the king has granted a full pardon, which means all past convictions have been expunged," said Sivarasa Rasiah, Anwar's lawyer. - Reuters
Apandi on 30-day unrecorded leave
He maintains however that he is still the attorney-general.
Mohamed Apandi Ali has been told to go on leave for 30 days. (Youtube screengrab)
PUTRAJAYA: Attorney-General Mohamed Apandi Ali began his 30-day unrecorded leave today.
“So I will not be in my office today,” he said in a short message, maintaining however that he is still the attorney-general.
Yesterday, Prime Minister Dr Mahathir Mohamad said Apandi had been
asked to go on leave and that Solicitor-General Engku Nor Faizah Engku
Atek would stand in for him with immediate effect.
Apandi also told reporters in a text message not to waste their
“precious time” waiting for him at the Attorney-General’s Chambers.
“My salam and regards to my media friends out there. Will be seeing
all of you on some other occasion. Insya Allah. Thank you all,” he said.
Apandi had turned up for work yesterday despite Mahathir stating at a press conference that “there is no AG in the country now”.- FMT, 15/5/2018
Art. 145
- the present Article was substituted by Act 10/1960, section 26, in force from 16-09-1963.
the earlier Article read as follows:
“145.
(1) the yang di-pertuan Agong shall, after consultation with the Judicial and Legal
Service Commission, appoint from among the members of the judicial and legal service an
Attorney General, who shall be a person qualified to be a judge of the Federal Court.
(2)the Attorney General shall advise on legal matters referred to him by the
yang di-pertuan Agong or the Cabinet, and shall have power, exercisable at his discretion, to
institute, conduct or discontinue any proceedings for an offence, other than proceedings
before a Muslim court, a native court or a court-martial.
(3)the Attorney General shall have the right of audience in, and shall take precedence
over any other person appearing before, any court or tribunal.
(4) Subject to Clause (5), the Attorney General shall hold office until he attains the age
of sixty-five years or such later time, not later than six months after he attains that age,
as the yang di-pertuan Agong may approve.
(5) the Attorney General may at any time resign his office but shall not be removed
from office except on the like grounds and in the like manner as a judge of the Federal
Court.”.Clauses (1)
42 Power of pardon, etc.(Federal Constitution)
(1) The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di- Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.
(2) Subject to Clause (10), and without prejudice to any provision of federal law relating to remission of sentences for good conduct or special services, any power conferred by federal or State law to remit, suspend or commute sentences for any offence shall be exercisable by the Yang di-Pertuan Agong if the sentence was passed by a court-martial or by a civil court exercising jurisdiction in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya and, in any other case, shall be exercisable by the Ruler or Yang di-Pertua Negeri of the State in which the offence was committed.
(3) Where an offence was committed wholly or partly outside the Federation or in more than one State or in circumstances which make it doubtful where it was committed, it shall be treated for the purposes of this Article as having been committed in the State in which it was tried. For the purpose of this Clause the Federal Territory of Kuala Lumpur, the Federal Territory of Labuan and the Federal Territory of Putrajaya, as the case may be, shall each be regarded as a State.
(4) The powers mentioned in this Article -
(a) are, so far as they are exercisable by the Yang di- Pertuan Agong, among functions with respect to which federal law may make provision under Clause (3) of Article 40;(5) The Pardons Board constituted for each State shall consist of the Attorney General of the Federation, the Chief Minister of the State and not more than three other members, who shall be appointed by the Ruler or Yang di-Pertua Negeri; but the Attorney General may from time to time by instrument in writing delegate his functions as a member of the Board to any other person, and the Ruler or Yang di-Pertua Negeri may appoint any person to exercise temporarily the functions of any member of the Board appointed by him who is absent or unable to act.
(b) shall so far as they are exercisable by the Ruler or Yang di-Pertua Negeri of a State, be exercised on the advice of a Pardons Board constituted for that State in accordance with Clause (5).
(6) The members of a Pardons Board appointed by the Ruler or Yang di-Pertua Negeri shall be appointed for a term of three years and shall be eligible for reappointment, but may at any time resign from the Board.
(7) A member of the Legislative Assembly of a State or of the House of Representatives shall not be appointed by the Ruler or Yang di-Pertua Negeri to be a member of a Pardons Board or to exercise temporarily the functions of such a member.
(8) The Pardons Board shall meet in the presence of the Ruler or Yang di-Pertua Negeri and he shall preside over it.
(9) Before tendering their advice on any matter a Pardons Board shall consider any written opinion which the Attorney General may have delivered thereon.
(10) Notwithstanding anything in this Article, the power to grant pardons, reprieves and respites in respect of, or to remit, suspend or commute sentences imposed by any court established under any law regulating Islamic religious affairs in the State of Malacca, Penang, Sabah or Sarawak or the Federal Territories of Kuala Lumpur, Labuan and Putrajaya shall be exercisable by the Yang di-Pertuan Agong as Head of the religion of Islam in the State.
(11) For the purpose of this Article, there shall be constituted a single Pardons Board for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya and the provisions of Clauses (5), (6), (7), (8) and (9) shall apply mutatis mutandis to the Pardons Board under this Clause except that reference to "Ruler or Yang di-Pertua Negeri" shall be construed as reference to the Yang di-Pertuan Agong and reference to "Chief Minister of the State" shall be construed as reference to the Minister responsible for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
(12) Notwithstanding anything contained in this Constitution, where the powers mentioned in this Article -
(a) are exercisable by the Yang di-Pertua Negeri of a State and are to be exercised in respect of himself or his wife, son or daughter, such powers shall be exercised by the Yang di-Pertuan Agong acting on the advice of the Pardons Board constituted for that State under this Article and which shall be presided over by him;(13) For the purpose of paragraphs (b) and (c) of Clause (12), the Yang di-Pertuan Agong or the Ruler of the State concerned, as the case may be, and the Yang di-Pertua-Yang di-Pertua Negeri shall not be members of the Conference of Rulers.
(b) are to be exercised in respect of the Yang di-Pertuan Agong, the Ruler of a State, or his Consort, as the case may be, such powers shall be exercised by the Conference of Rulers and the following provisions shall apply:
(i) when attending any proceedings under this Clause, the Yang di-Pertuan Agong shall not be accompanied by the Prime Minister and the other Rulers shall not be accompanied by their Menteri-Menteri Besar;(c) are to be exercised by the Yang di-Pertuan Agong or the Ruler of a State in respect of his son or daughter, as the case may be, such powers shall be exercised by the Ruler of a State nominated by the Conference of Rulers who shall act in accordance with the advice of the relevant Pardons Board constituted under this Article.
(ii) before arriving at its decision on any matter under this Clause, the Conference of Rulers shall consider any written opinion which the Attorney General may have delivered thereon;
145 Attorney General(Federal Constitution)
(1) The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.
(2) It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.
(3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.
(3A) Federal law may confer on the Attorney General power to determine the courts in which or the venue at which any proceedings which he has power under Clause (3) to institute shall be instituted or to which such proceedings shall be transferred.
(4) In the performance of his duties the Attorney General shall have the right of audience in, and shall take precedence over any other person appearing before, any court or tribunal in the Federation.
(5) Subject to Clause (6), the Attorney General shall hold office during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office and, unless he is a member of the Cabinet, shall receive such remuneration as the Yang di-Pertuan Agong may determine.
(6) The person holding the office of Attorney General immediately prior to the coming into operation of this Article shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.
40 Yang di-Pertuan Agong to act on advice.
(1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.
(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di- Pertuan Agong shall accept and act in accordance with such advice.
(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:
(a) the appointment of a Prime Minister;and in any other case mentioned in this Constitution.
(b) the withholding of consent to a request for the dissolution of Parliament;
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,
(3) Federal law may make provision for requiring the Yang di-Pertuan Agong to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions other than -
(a) functions exercisable in his discretion;
(b) functions with respect to the exercise of which provision is made in any other Article.
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