Sunday, February 11, 2024

Ministers(as part of Executive) must resign as soon as they are charged, just like the King who ceases to function when the King is charged? Art.48 need to be amended, 48(4) repealed?

Members of Administration, being the members of the Cabinet should be removed once they are charged in court for a criminal offence, as the King(Yang Di-Pertuan Agung) has to..

Article 33A  Yang di-Pertuan Agong shall cease to exercise the functions of the Yang di-Pertuan Agong if charged with an offence (Federal Constitution)

(1) Where the Yang di-Pertuan Agong is charged with an offence under any law in the Special Court established under Part XV he shall cease to exercise the functions of the Yang di-Pertuan Agong.

Noting that EXECUTIVE authority of the King is conferred on the Cabinet.. so, the same standards or requirement should apply to members of the Cabinet - the Prime Minister, Ministers and Deputy Ministers too..

Article 39  Executive authority of Federation (Federal Constitution)

The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable, subject to the provisions of any federal law and of the Second Schedule, by him or by the Cabinet or any Minister authorized by the Cabinet, but Parliament may by law confer executive functions on other persons.

There is no conflict with Art 48 that allows MPs/Senators to remain MPs and Senators even after they have been found guilty and convicted until their final of 2 appeals are heard and disposed off, until the end of the pardon process

48  Disqualification for membership of Parliament

(1) Subject to the provisions of this Article, a person is disqualified for being a member of either House of Parliament if—


(e) he has been convicted of an offence by a court of law in the Federation (or, before Malaysia Day, in the territories comprised in the State of Sabah or Sarawak or in Singapore) 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; or...

(4) Notwithstanding anything contained in the foregoing provisions of this Article, where a member of either House of Parliament becomes disqualified from continuing to be a member thereof pursuant to paragraph (e) of Clause (1) or under a federal law made in pursuance of Clause (2)—

(a) the disqualification shall take effect upon the expiry of fourteen days from the date on which he was—

(i) convicted and sentenced as specified in the aforesaid paragraph (e); or

(ii) convicted of an offence or proved guilty of an act under a federal law made in pursuance of Clause (2); or

(b) if within the period of fourteen days specified in paragraph (a) an appeal or any other court proceeding is brought in respect of such conviction or sentence, or in respect of being so convicted or proved guilty, as the case may be, the disqualification shall take effect upon the expiry of fourteen days from the date on which such appeal or other court proceeding is disposed of by the court; or

(c) if within the period specified in paragraph (a) or the period after the disposal of the appeal or other court proceeding specified in paragraph (b) there is filed a petition for a pardon, such disqualification shall take effect immediately upon the petition being disposed of.

Likewise, Ministers or members of the Cabinet that are removed from their position in the Cabinet when they are charged in court can continue to remain as MPs and/or Senators until end of all their criminal appeals, or the hearing of the petition for pardon.

If Article 48 applies also the Jemaah Menteri (Cabinet of Ministers) being the Prime Minister, Ministers and Deputy Ministers, and/or Parliamentary Secretaries(Art. 43B) and Political Secretaries(Art. 43C), then there would be specific mention that the same apply to all these persons. There is NONE - and since the King himself, the holder of the Executive Authority of the Federation, has to STOP exercising his power on being CHARGED - the same must apply to all members of the Executive Branch of government - the Prime Minister, the Ministers, the Deputy Ministers, the Parliamentary Secretary and even the political secretaries - and others who have been politically appointed by the said Ministers...

Remember MPs and Senators are members of the Legislative branch of the government, elected by the people directly(although Malaysia still delays direct by the people elections of Senators, hopefully this will change soon)

The distinction is that the Jemaah Menteri(Cabinet), Parliamentary Secretaries and Political Secretaries are not in the Legislative branch of government - but another branch, the Executive. 

Hence, the position of the past 2 Perikatan National-BN-others coalition government was RIGHT when all those charged or facing trials were excluded from the Cabinet, and Prime Minister Anwar Ibrahim's coalition government was WRONG ... 

Article 48 that deals with disqualification of MPs also need to be amended as follows:-

Personally, I believe that there is Art. 43 that deals with Disqualification of 'member of either House of Parliament' should be amended - and all MP and/or Senators should be immediately disqualified after the court finds them guilty - they can stay on as  MP/Senators during the trial but not after they have been found guilty and convicted by court. This is out of respect the presumption of innocent until proven guilty in court. After conviction, they are convicted criminals with the right to 2 appeals to try to get their conviction overturned by Court.

'member of either House of Parliament' should also be immediately disqualified when he accepts an OFFER OF COMPOUND and pays it.  

WHY? A compound offer is only made to a  person reasonably suspected of having committed the offence. 

And, as such when a person accepts the compound offer and pays it, reasonably he should be presumed to be guilty of committing the offence - for an innocent man will reasonably or naturally demand a trial, convinced that he will not be found guilty after a trial. He/she would want the opportunity to prove that he is INNOCENT. 

Compounds were initially for  was for LESSER offences classified as a misdemeanor. So maybe minor traffic offences or things like not wearing masks during COVID are OK to be compounded, but in Malaysia today, compound is even available for serious offences... Should we not remove the power to compound for some of this offences - especially the more serious ones...they can always be charged in court, and if they return what was stolen and immediately plead guilty - the courts will consider these mitigating factors and impose a LESSER sentence - generally a one third reduction for pleading guilty, and more reduction for maybe returning the fruits of crime.. 


92  Power of competent authority to compound offences

(1) The competent authority or relevant enforcement agency, as the case may be, may, with the consent of the Public Prosecutor, compound any offence under this Act or under regulations made under this Act, by accepting from the person reasonably suspected of having committed the offence such amount not exceeding fifty per centum of the amount of the maximum fine for that offence, including the daily fine, if any, in the case of a continuing offence, to which that person would have been liable if he had been convicted of the offence, within such time as may be specified in its written offer....

(4) Where an offence has been compounded under subsection (1), no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made.

It is JOKE that in Malaysia, a person who is convicted of a small offence and fined more than RM2,000 is disqualified as a MP/Senator and will not be able to contest for a further 5 years after paying the fine - but no similar disqualification for a person who pays COMPOUND of more that RM2,000 - no 5 year disqualification too. 

We recall the Ahmad Maslan(Now PM Anwar Ibrahim's Deputy Finance Minister)  case, where the prosecution in September 2021 decided to discontinue the criminal case against him as 'the  accused as he had paid a RM1.1 million compound'. And if the offer of compound is accepted and paid, he can no longer be prosecuted for the same offence. The High Court then ACQUITTED him.

Ahmad Maslan - Impact to UMNO/BN in Melaka and subsequent elections? Courts' hand tied, but not the peoples'?

Public prosecutor must explain Ahmad Maslan’s acquittal, says group (Malaysian Insight)

Ahmad Maslan's acquittal raises much concern - a MADPET statement

Ahmad Maslan can bravely admit to the crime, because an Acquital means he can never be charged again for the said offences again?

He paid RM1.1 million compound - ODD and unjust that he was not then thereafter disqualified as a MP and prevented from contesting for 5 years, unless he gets a royal pardon. 

But someone fined for more RM2,000 is disqualified...THIS IS WHY THE FEDERAL CONSTITUTION  NEED TO BE AMENDED TO INCLUDE THAT THOSE WHO PAY COMPOUNDS OF MORE THAN RM2,000(or maybe a more reasonable sum) will also be disqualified, and remain so disqualified for a further 5 years unless he gets a Royal Pardon.

Ahmad Maslan's case was also ODD because normally an offer of compound comes before one is charged in court. In Ahmad Maslan's case, he was already charged in court...

Pontian Member of Parliament Datuk Seri Ahmad Maslan, who is charged for failing to declare RM2 million received from Datuk Seri Najib Tun Razak to the Inland Revenue Board (IRB) and giving false statements to the Malaysian Anti-Corruption Commission (MACC), will have his trial heard in the High Court here.

Now, prosecution will NOT charge anyone in court UNLESS they are confident that they have sufficient evidence of convincing the court beyond reasonable doubt that the accused is GUILTY  - so, it was ODD for the prosecution to discontinue Ahmad Maslan's case on the ground that compound had been paid - and then Ahmad Maslan got an ACQUITTAL. The offer of compound should have lapsed the moment he was charged in court, in my opinion.

But, then this is Malaysia and odder things has happened like in the case of Zahid Hamidi - where the criminal case was discontinued after the prosecution had already proved ALL the elements of the crime. What this means is that if Zahid Hamidi fails to raise 'reasonable doubt' during the Defence case, he will be convicted of the said 47 charges... Zahid Hamidi was discharged - and not acquitted. How long exactly does the prosecution need to consider or further investigate matters raised in Zahid's letters of representation...Why have we not heard anything on the progress of the investigations - noting that Zahid can always be re-charged for the same offences and the trial continues where it ended.

ANOTHER REFORM for Article 48 - the FINE that now disqualifies a MP is now RM2,000 - This should really be increased to maybe RM10,000 or more... and maybe limited to certain kinds of criminal offences.

ANOTHER REFORM for Article 48 - Now, 48(3) says that after a person is released from prison or after he/she had paid the fine, they are still not able to contest to become MP or Senator for a further 5 years. WHY? This is unjust for after they serve their sentence, they should immediately be allowed to contest and become MPs - if the people in their constituency chooses them. This additional 5 year disqualification is also discriminatory - not an equal treatment under the law - Art 8(1) All persons are equal before the law and entitled to the equal protection of the law. They have been convicted, already served their sentence - they must be placed at the same footing as everyone else, and should be able to be MPs after serving their just sentences. Hence, this additional disqualification for 5 years after sentence served must be abolished especially for peoples' representatives elected directly by the people.

(3) The disqualification of a person under paragraph (d) or paragraph (e) of Clause (1) may be removed by the Yang di-Pertuan Agong and shall, if not so removed, cease at the end of the period of five years beginning with the date on which the return mentioned in the said paragraph (d) was required to be lodged, or, as the case may be, the date on which the person convicted as mentioned in the said paragraph (e) was released from custody or the date on which the fine mentioned in the said paragraph (e) was imposed on such person; and a person shall not be disqualified under paragraph (f) of Clause (1) by reason only of anything done by him before he became a citizen.

Another REFORM for Article 48 is the repeal of Article 48 1(d) - to be disqualified, they must be charged and convicted first for this election offence. If they have not been convicted, then the presumption of innocence must apply until tried and convicted by a court of law.

(d) having been nominated for election to either House of Parliament or to the Legislative Assembly of a State, or having acted as election agent to a person so nominated, he has failed to lodge any return of election expenses required by law within the time and in the manner so required; or 

Another REFORM to Article 48 is the DISQUALIFICATION of persons who paid COMPOUNDS to avoid prosecution and conviction of maybe the same sum as fines, and also those who avoided prosecution and conviction by means of any agreement like repayment of the fruits of the crime, etc.

One example is the case of RIZA AZIZ, Najib's son - The fact is that he was charged for crimes, and if the trial had proceeded, he may be convicted and sentenced. An 'agreement' saved him from trial and conviction... Would an ordinary thief be accorded such a deal - return stolen items, and walk free.

Datuk Seri Najib Razak's stepson Riza Shahriz Abdul Aziz today agreed to forfeit RM537,000, Sri Lanka rupee 2.87 million, and £2,700 which had been seized by the government since May 2018 in relation to 1Malaysia Development Bhd (1MDB)....The order of consent was made by High Court's Justice Mohamed Zaini Mazlan who allowed the prosecution's application Deputy Public Prosecutor (DPP) Faten Hadni Khairuddin and DPP Harris Ong Jeffrey Ong to forfeit the monies after they informed the court of Riza's agreement to forfeit them as a condition of his discharge not amounting to an acquittal of five money laundering charges in relation to 1MDB. Faten Hadni said the monies were seized from Najib and Rosmah's home in Jalan Langgak Duta....The DPP also wanted the court to record that there was no objection from Najib and Rosmah's lawyers over the seized monies. Najib's lawyer Nursyahirah Hanifiah and Rosmah's lawyer Azrul Zulkifli Stork concurred that they were not contesting the monies to be forfeited.

Riza Aziz case, the AG's statement? Money recovered from Najib's and Rosmah's house belong to Riza? 

Riza Case - Former Bar Presidents' Statement? If offence after 2014, Minimum Mandatory fine USD 1,240 million?


Another REFORM much needed - is that MP/Senators must immediately be disqualified as soon as they have been convicted by court. At that point, they no longer are presumed innocent. After conviction, they are GUILTY but have the opportunity to overturn their convictions by way of appeals to higher courts. Hence, the repeal of Art.48(4). This means that MUDA's Syed Saddiq that was found guilty, convicted and sentenced on 9/11/2023 will be disqualified on that day he was convicted.

A suggestion is that MPs who are disqualified by reason of criminal convictions, acceptance and payment of compounds, or other 'agreements' that avoided trial and convictions should be allowed to contest again in the elections that follow their disqualifications - let the people decide whether they still want the said persons as their elected peoples' representatives - their MP, and if the people decide so, the so be it - for after all, they are the peoples' elected representative. 

If this is accepted, then even Najib Razak, now serving a prison sentence, can stand for elections to be a MP. Now with the availability of online communication, he will still be able to attend Parliament online. PEOPLE DECIDE WHO THEY WANT AS THEIR MP - AND IF THEY DECIDE THEY WANT A CRIMINAL IN PRISON TO BE THEIR MP, SO BE IT.

The law that clearly requires members of the Executive(Ministers, Deputy Ministers, Parliamentary Secretaries and Political Secretaries, etc) to resign or be removed as soon as they be charged may not be there, eventhough the Federal Constitution already strongly implies it - seeing that this is what the King must do.

As such, this must be adopted by Prime Minister Anwar Ibrahim now - and he should remove all members of the Executive who are facing charges in court.

The Prime Minister should also remove those who avoided trial and conviction by payments of compounds and other 'deals', if 5 years have yet to lapse since the payment of compounds and/or the said deal. This would include Ahmad Maslan (not yet 5 years since paid that million ringgit compound)

See related post:-

Ahmad Mazlan and others by reason of 'compounds' and 'deals' - undermines the spirit/intention of Art.48(1)(e) on disqualification of MPs?

## The above is my personal opinion, with proposed reforms for a better Malaysia 

LETTER | Anwar should quickly walk the talk on corruption
Charles Hector
Published: Nov 29, 2022 5:28 PM

LETTER | As our new prime minister, Anwar Ibrahim, pledged to fight corruption, there is a need to strengthen laws against corruption, abuse of power, and even money laundering.

It is common for any prime minister and political party to take a position against corruption and abuse of power, but what they then do is more important.

Abolishing compounds for money laundering, corruption offences

Malaysians Against Death Penalty and Torture (Madpet) calls for the abolition of compounds for corruption and related offences, including offences under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Amla). These are serious offences, more so when it involves ministers and politicians.

Section 92 of Amla now sadly allows for all offences in this Act to be compounded.

It states, “…(1) The competent authority or relevant enforcement agency, as the case may be, may, with the consent of the public prosecutor, compound any offence under this Act or under regulations made under this Act, by accepting from the person reasonably suspected of having committed the offence such amount not exceeding fifty per centum of the amount of the maximum fine for that offence… to which that person would have been liable if he had been convicted of the offence…’

Such offences should be dealt with by the court, not by the finance minister or the minister-appointed authority or enforcement agency.

The decisions with regard compound are now administrative decisions of the minister or enforcement agency, not judicial decisions. It puts “pressure” on ministers, especially when it comes to a fellow party or coalition member.

Any accused, after being charged in court, can always plead guilty, and this plea will mitigate the sentence imposed. It is best when such accused, especially ministers and politicians, are dealt with by an independent judiciary.

The effect of an offer, and the acceptance, of a compound means an end of investigation and thereafter “…no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made…” (Section 92(4) of Amla).

Avoiding trials and convictions via compounds

When it comes to sitting members of Parliament and/or senators, it must be noted that Article 48 of the Federal Constitution states that an MP or senator will be disqualified if “(e) he has been convicted of an offence by a court of law in the Federation (or, before Malaysia Day, in the territories comprised in the state of Sabah or Sarawak or in Singapore) and sentenced to imprisonment for a term of not less than one year or to a fine of not less than RM2,000 and has not received a pardon…”. There is nothing said about compounds.

Thus, the administrative compound can wrongly be used to prevent a fellow politician from being charged, tried, convicted, and sentenced in court, thus saving current or future MPs or senators from being disqualified by reason of conviction, as is now provided in Malaysia’s Constitution.

It is reasonable to say that, generally, no innocent person would accept a compound offer and pay the stipulated amount, more so when it is a large sum. An innocent person would rather go to court to prove his/her innocence than “admit guilt” by accepting a compound offer.

For small offences, a person may choose to pay the small compound to save time and effort in having to go to court.

The availability of compounds for small offences like road traffic offences and violation of MCO requirement may be acceptable, but compounds should not be available for Amla offences, corruption, abuse of power offences and some other offences like occupational safety and health. Charge them and let courts decide.

On Sept 21 this year, then Pontian member of Parliament (MP) Ahmad Maslan was acquitted of charges of money laundering and giving a false statement after he agreed to pay a compound of RM1.1 million.

The oddity in this case was that he had already been charged when the compound offer was taken up. The prosecution will generally never charge any person unless they are confident that they can prove guilt beyond reasonable doubt.

When this happened, Ahmad not only escaped a trial,  but also the risk of conviction and potential disqualification as an MP/senator. He also obtained protection from being further investigated, and charged for the same offence ever again.

Sadly, Ahmad can be said to have also missed the opportunity to prove himself innocent in court. Doubts will remain in many minds.

Deterring corruption by PM and cabinet

At present, there are no laws or regulations that govern the conduct and discipline of the prime minister and cabinet members. Though cabinet members are public officers, they are excluded from disciplinary provisions that apply to Malaysian public officers.

Therefore, Madpet proposed that Malaysia’s new government extend the application of the Public Officers (Conduct and Discipline) Regulations 1993 to also include members of the cabinet and maybe even MPs. Alternatively, a new law can also be drafted.

Regulations in the civil service even deal with “presents”, stating that a public officer “…shall not receive or give nor shall he allow his spouse or any other person to receive or give on his behalf any present, whether in a tangible form or otherwise, from or to any person, association, body, or group of persons if the receipt or giving of such present is in any way connected, either directly or indirectly, with his official duties…”. There are many provisions in the regulations that will deter corrupt practice.

It would be best if members of the cabinet or even MPs are also governed by such regulations. Or better yet, new laws which will also deter corrupt practices and keep our cabinet members clean.

Following former prime minister Najib Abdul Razak’s conviction for abuse of power, criminal breach of trust and money laundering involving RM42 millions, crimes that were committed in office, trust in the prime minister and members of cabinet have diminished.

This trust will need to be restored and we need laws and regulations that will deter such crimes in the future.

Corruption and abuse of power

When a person or a corporation contesting for a government contract/project, pays money or provides benefits to a minister or a person with the power to decide or influence contract awarding, before or after the awarding of the tender, it is corrupt practice.

It should not matter whether the money or benefits flows directly into the said politician/public officer’s pocket or to his/her family members, his/her related “political funds”, or political party, NGOs, or charities which has links with the said politician or public servant. It is still corruption.

We are fed up of hearing politicians argue that the money taken were not for themselves but for political funding or charity.

Annual asset declaration

A law on regular asset declaration that provides for regular, preferable every year, is needed. Asset declaration is not for the public to know how rich or poor a minister or MP is but really is a means for the public to be sure that the said MP or minister did not use his/her position power to accumulate wealth wrongly.

This can only be done by comparing subsequent declarations with the first one that was made immediately when he/she gets elected/appointed.

It is sad that previous governments did not understand the reason behind asset declarations and chose to only require one asset declaration, making it impossible for the rakyat to compare and determine whether there was abuse and wrongful personal enrichment. Making false declarations must also be a criminal offence.

Political funding laws

The law on political funding, which was earlier reported would be tabled in October, must also be speedily tabled now. It must cover not just political parties, but also individual MPs and senators.

For years, Malaysian MPs received large amounts of additional funds, sometimes millions of ringgit, annually for the expenditure of their constituency. But alas there was no transparency as to how these public funds were used.

Many wonder how much of the people’s money went into the MP’s own pocket, directly or indirectly, or wrongly flowed to their party or supporters? Accountability and transparency is needed.

End endemic corruption in Malaysia

Madpet urges the PM to walk the talk and demonstrate that his pledge against corruption and abuse of power will be followed by speedy, concrete actions, including the tabling of needed amendments to laws and new laws that will also deter acts of corruption and abuse of power amongst the cabinet and also MPs in Malaysia.

Anwar needs to act fast, remembering how prime ministers and governments in recent times changed rapidly, having three different prime ministers since GE14. Delay is no more an option. - Malaysiakini, 29/11/2022

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