Thursday, August 05, 2021

Power of PM(Government) to influence police, prosecutors and Judges? Why ask PM to intervene in cases, when he has no such power?

Can the PM/Cabinet influence or decide who gets arrested, investigated, charged or acquitted?

Prime Minister Muhyiddin Yassin claims he was under pressure from “certain parties” to intervene in the matters of the court in order to set several individuals free from criminal charges. In a national address, he said these individuals were uneasy over his strict stand in refusing to entertain their demands. “This included pressure for me to intervene in matters of the court to release several individuals who were charged with criminal offences,” he said.

Is Muhyiddin's position that he WILL NOT - which means he can, OR is it that NO ONE can or  should interfere with the INDEPENDENCE and professionalism of the Malaysian police(and law enforcers), prosecutors or judges in Malaysia?  

So, how can we better improve the independence of judges and actors in the administration of criminal justice - so that even if the PM(or government) wants to interfere, they cannot do so...

The administration of justice starting from the police/MACC/other law enforcement officers, prosecutors(including Public Prosecutor) and judges are supposed to be INDEPENDENT and carry out their duties professionally upholding the cause of justice, whilst treating everyone equally - as the Constitution also guarantees equality to ALL persons(citizen and non-citizen), and equal treatment under the law.

Article 8(1) All persons are equal before the law and entitled to the equal protection of the law.

And, would not this equal protection of the law means that those PM, Ministers, etc that committed 'kleptocracy', corruption, abuse of powers, etc - crimes that affect all of us in Malaysia are charged and tried - and not 'acquitted' when their party is part of the government of the day?

Can the PM tell the police/law enforcement who to investigate and who not to investigate? Can the PM/Cabinet tell the police who they should arrest, remand and detain? Can the PM/Cabinet tell them who to proceed to charge? NO. 

So, even if it the Prime Minister, Minister, their friend/family, when they are suspected to have committed a crime the police/MACC will INVESTIGATE, and if there is sufficient evidence, they will be charged and tried in Court.

Do the members of the administration get special treatment? They should not... {But then, the fact that Ministers only subject to 3 days quarantine, whilst others are quarantined for 14 days is an inconsistency)

So, them MPs should know better, that the government cannot influence law enforcement, prosecutors and/or the court.. Is it not a crime for those who asked their cases be dropped? Should the PM not have made a police/MACC report when this happened?

BUT, then the problem lies with our perceived REALITY (maybe there was some explanation...)

-    Why was not Najib, them Ministers,...never arrested, remanded or detained in lock-ups overnight during the investigations? Why was young Sarah Irdina made to spend a night in police lock-up, when the police could have released her on police bail, and asked her to reappear the following day for continued investigations? Was she a flight-risk - who will run away from the country? 

-    Najib too was investigated whilst he was Prime Minister, but then the Public Prosecutor decided not to charge him. Of course, then when the PH Plus government comes into power and a new AG(Public Prosecutor) gets appointed, Najib, Zahid and so many other 'powerful ones' get charged? So, best we have a separate and Independent PUBLIC PROSECUTOR, and the Attorney General can continue to act as 'government lawyer'/legal advisor/etc... and not be involved in matters of prosecution and criminal trials.

   Then we have the problem of the prosecution deciding to DISCONTINUE cases, and then the Judge decides to ACQUIT, and not order a Discharge Not Amounting to an Acquittal(DNAA). An Acquittal is GIFT - for that person cannot even be charged again for the same offence, even if new strong evidence come to light. A just approach would be for the Judge to order a DNAA - which will put that accused in the same position as you and I > i.e. if evidence come to light anytime, the can or cannot be charged for committing that offence. Remember, that this happened not just during the BN, but also during the reign of PH Plus and even the PN-BN Plus government. Maybe, no blame lies on government, but it was simply the Judges doing what they felt was just...we will never know. Mind you this happened also during the BN and later the PH Plus reign.

-    Then, of course, we have a PARDON of a convicted criminal - the apparently first priority of the PH Plus government. If this pardon was a policy to ensure that the others that have been languishing in prison and under death row were also pardoned. It would have been good if the PH Plus government then pushed that pardons be granted to all death row inmates, especially those convicted for drug trafficking, to commute their death sentences to imprisonment - which would have been reasonable since then the law had changed, and drug trafficking no longer attracted the MANDATORY death penalty. But then, after the release of one, the PH Plus seemed to not have pushed for more pardon proceedings, or did they??? During the BN reign, a former minister who was sentenced to death for murder in 1983 also got royal pardon/s.

BUT SADLY all these happenings can create a FALSE public perception about the nature of administration of justice in Malaysia - they may wrongly believe that the government can and/or do influence the persons involved in the administration of justice, and that the persons like the police, prosecutors and judges are not really independent - and can be directed/influenced by the government/politicians/powerful.

THIS IS A FALSE PERCEPTION but maybe we need to do more to make sure the public has the right perception of police, prosecutors, judges and others in the administration of justice. To this end, there have suggestions by many about the needed reforms..

1 -    An independent PUBLIC PROSECUTOR, when now the Attorney General is    also the Public Prosecutor. Being also the government's legal adviser and even counsel/lawyer, it becomes hard for him/her to also be the Public Prosecutor - more when it is the Public Prosecutor who has to give his/her consent before someone can be charged in court - a case with many offence, more when it is the prosecutor that decides a particular case be discontinued. [Well, over the last few days, we see the AG running to the PM's house, then going with the PM/Ministers to see the King, etc..The appointment of a NEW AG when a new government come into power also is not good] See also:-Malaysian Bar calls on Mohamed Apandi Ali to immediately resign as Attorney General, for the good of Malaysia..,Public Prosecutor should be independent and receive no other income or be a Company Director? 

KUALA LUMPUR, July 29 — Members of the media have been flocking to Prime Minister Tan Sri Muhyiddin Yassin’s residence in Bukit Damansara here since 1pm following the statement issued by Istana Negara regarding the revocation of Emergency Ordinances today. Several vehicles believed to be carrying Cabinet ministers and Attorney General Tan Sri Idrus Harun were spotted entering the main gate to the residence at 1.30 pm. - Malay Mail, 29/7/2021

2 -   Judges should order DNAA(Discharge Not Amounting To Acquittal) if the prosecution decides to discontinue a case mid-stream for whatever reason. A decision to ACQUIT should only be handed down after full trial(or at the close of prosecution case) after Judges have had the opportunity to evaluate all evidence. An Acquittal, on an application by prosecution to discontinue a case mid-stream, only results in INJUSTICE - what happens when concrete evidence of guilt emerges later on - for now, once acquitted, that person cannot be charged anymore for the same charge. A DNAA is good enough..

3.    The role of the Prime Minister in the appointment of Judges is already in question. The proposal is for an INDEPENDENT APPOINTMENT AND SELECTION COMMITTEE to choose and appoint judges, to decide which Judge is elevated to become a Court of Appeal Judge or Federal Court Judge. Given the now existing power of the PM, would a judge 'listen to the PM', even though he/she should not simply to not jeopardise his/her chances of becoming a Court of Appeal or Federal Court Judge. The proposed independent committee will advise the King, without having to go through the PM.  

4.    Talking about INDEPENDENCE of Judges, the practice of State/Rulers conferring Datukship, etc should also be looked into. After all, the State(government) and/or the Rulers(or the family members) or companies where they have an interest in may one day be before that Judge - so will that Judge RECUSE himself because he got a title from the Ruler(possibly on the recommendation of the government). Maybe, no titles to sitting Judges, OR maybe an automatic entitlement to 'titles' based on years of service. Something to consider which will certainly help strengthen the perception of independence of Judges.

5.    Sometimes, police act on a police report and sometimes they do not do as much, listing a report received as 'NFA - No further action' - Maybe, police and prosecutors decisions should be subjected to Judicial Review.

6.     There may be many other needed reforms so that NO other MP or Politician will ever again go asking the Prime Minister(or government) to intervene in his/her criminal cases anymore...

I was asked to intervene in court matters, claims PM

Muhyiddin Yassin says that several individuals were uneasy over his strict stand in refusing to entertain demands to intervene in court cases.

PETALING JAYA: Prime Minister Muhyiddin Yassin claims he was under pressure from “certain parties” to intervene in the matters of the court in order to set several individuals free from criminal charges.

In a national address, he said these individuals were uneasy over his strict stand in refusing to entertain their demands.

“This included pressure for me to intervene in matters of the court to release several individuals who were charged with criminal offences,” he said.

Umno MPs who are currently facing court charges include party president Ahmad Zahid Hamidi, former president Najib Razak, secretary-general Ahmad Maslan, Bung Moktar Radin and Abdul Azeez Abdul Rahim.

Najib had also been found guilty of corruption in connection with RM42 million belonging to former 1MDB unit SRC International. He still faces charges involving the main 1MDB trial.

Claiming that he still held the majority support of MPs to lead the country, Muhyiddin said the Cabinet and government machinery will continue to perform their duties, especially in managing the pandemic.

He assured that the vaccination programme will not be disrupted and will continue as planned, while aid measures announced for the people will continue to be distributed.

“I urge all civil servants, especially frontliners, to stay strong in performing your tasks and responsibilities without being affected by this political turmoil that was intentionally sparked by certain parties.

“I was also accused of committing treason against the King, when what I did was simply to preserve the supremacy of the Federal Constitution and to defend the royal institution.

“I will not sacrifice my principles nor go back on my oath to conduct all my responsibilities honestly, with loyalty to the King and country, and to preserve, protect and defend the constitution.” - FMT, 4/8/2021

See also the BERNAMA Report, 4/8/2021

Youth activist Sarah Irdina recounts lock-up ‘mental torture’

Ragananthini Vethasalam

YOUTH activist Sarah Irdina Mohammad Ariff has shared her lock-up experience on social media. The 20-year-old was taken into police custody on Thursday over her role in the #Lawan protest. She was held overnight and released the next day
The co-founder of MISI:Solidariti is under investigation for sedition and for violating the Communications and Multimedia Act via her tweets about the #Lawan protest, which is taking place today. 

Young people are gathering at Dataran Merdeka to demand the resignation of  Prime Minister Muhyiddin Yassin over the government’s government’s handling of the Covid-19 pandemic.
Sarah posted about her experience on Instagram, calling the time she spend in lock-up “truly traumatising”.

“Just being in the lock-up was mental torture and I had only gone through this for five hours,” she said.

 Sarah said no one should have to go through it.

“The first thing I heard at Dang Wangi was that I will be arrested by the Investigating Officer. They read me my rights, then confronted me with a slew of questions, specifically about a post on MISI: Solidarity’s Twitter account,” she said.

She said she was handcuffed by police and then brought to her home, which the cops searched for devices linking her to the tweets.

“My aunt was on the verge of tears, begging the police to let me go. Having my aunt see me in that state, detained under police custody, almost tore my heart in two. But I had to toughen up: I told her I would be okay,” she said.

“The police constantly told my aunt that I wasn’t being cooperative enough. It infuriated me – all I was doing was trying my best to exercise my rights under the law when I was being questioned by them earlier.”

“These intimidation tactics were not just being used against me. They were being used against my beloved family, whom the police had clearly targeted in order to force my cooperation,” she added.

Afterwards Sarah was taken to the Jinjang police station, where she was held until morning for a remand hearing, she said.

“I was forced to strip naked to my underwear. I changed into the police lock up shirt and pants, then entered my holding cell,” she said.

She said she was the sole occupant of the cell, which was “small”.  The bed was a brick with a plank on top.

“Next to it was an open bathroom. The walls around it reached my abdomen and immediately above it was a CCTV. The grill surrounding my cells was also right in front of the open-bathroom-if anyone were to walk past my cell they would be able to watch me use the bathroom,” Sarah said.

“Privacy there was non-existent. I couldn’t stop crying.”

She said she didnt know how she would get through the night, which seemed like an eternity.

“I couldn’t even bring myself to eat and sleep… Would my life ever be the same again? What did I do that was so bad that I deserve to go through this?

“What kind of government punishes its youth for demanding justice and asking for what we, the rakyat, deserve?” she said.

Alone with her thoughts, she began to worry that the police might refuse to release her. She wondered whether she would be able to continue with her studies after this. She said she lost track of time because she didn’t have a watch and there wasn’t a clock that she could see.

“On the wall of my lockup was a single phrase, written over and over: Stay strong.

“Scattered across the cell, these two words etched by previous detainees pierced strength in my heart. I wonder then, and hope now, that the person who wrote that is okay,” she said.

Sarah said the intimidation inflicted by the police onto her and her friends were unacceptable.

“The intimidation inflicted by the police onto me and my fellow friends is unacceptable.

“This failed government’s inhumane treatment of those that fight for a better Malaysia is what keeps hurting us Malaysians, when their job is supposedly to protect it. This is why we #lawan (fight),” she said.

 Sarah said the youth will not be silenced and for everyone that falls, thousands will rise.

“Demand what is rightfully yours. A better Malaysia,” she said.

“A Malaysia that loves us as much as we love her,” she added.

She was released at 1am on July 30.

Together with Sekretariat Solidariti Rakyat (SSR), the youths are demanding for the resignation of Prime Minister Muhyiddin Yassin, the convening of Parliament and the ending of the Emergency Proclamation.

#FreeSarah trended on social media while she was in detentions.

Sarah was arrested for a tweet on July 1 under MISI: Solidariti profile, listing the three demands of the black flag movement. – July 31, 2021, Malaysian Insight




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