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Interfaith custody dispute settled

05/05/2016

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I welcome the Federal Court’s decision on Indira Ghandi case, it affirms that only the civil court has jurisdiction over custody cases in a civil marriage, even if one party later converts to Islam.

That is to say, it is only when the syariah court pronounces Islamic divorce on an Islamic marriage, then it can make orders on custody. The Federal Constitution clearly spells out that the syariah court only has jurisdiction over Muslims.

As such, there interests of all parties are safeguarded and hopefully, this long-standing chapter of interfaith custody can now be closed.

The decision also meant that the controversial Article 121 (1A) of the Federal Constitution, which gives the impression that both the civil and syariah courts have equal but separate powers and seems to suggest both the courts’ orders are valid, is now settled.

Sejak 2013 Kerajaan Negeri Selangor tidak mempertimbangkan seruan rakyat. Adakah ia akan dinaikkan lagi?

15/04/2016

 

Hutan Simpanan harus diperlindungi

15/04/2016

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Gerakan Selangor di Pejabat SUK Kerajaan Negeri Selangor untuk membantah cadangan penerokaan hutan simpanan bagi projek lebuhraya DUKE dan SUKE.

Freedom of Speech: A balance approach

15/04/2016

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Gerakan slams ‘culture of fear’ via Sedition Act
15 Apr 2016, AM 9:49
Updated 15 Apr 2016, AM 9:57

Gerakan deputy Youth chief Andy Yong has criticised the increased use of the Sedition Act saying creating a culture of fear is taking the country backwards.

Yong was expressing his concerns over the “backsliding” in terms of restrictions on freedom of speech and of the media as not the way of a democratic country.

“It gives a negative perception that sedition and security laws are used to harass, intimidate and silence citizens, academicians, politicians, activists, journalists and bloggers,” he said in a statement today.

The lawyer pointed out how the authorities had tightened restrictions on freedom of expression as government critics, be it in person or online social media as well as online new sites have been victims of charges under the Sedition Act.

“While I agree there cannot be absolute freedom, but creating a culture of fear should not be the way in a democratic and developing nation,” he said.

He however admitted that some restrictions were needed to stop people from abusing and talking against the country, which amounts to sedition.

Yong nevertheless pointed out that criticising the government is one thing, while damaging the name of the country is another.

‘But don’t abuse country’

“We cannot go on abusing or talking against our own country. There are certain parameters unless our allegiance is with some other country or group,” he said.

“I say this because there were cases where Malaysians (especially politicians) spread hate speeches, lies and slanders against their own nation while they were overseas in the name of democracy, freedoms and human rights.”

Yong added that there were also incidents where certain quarters such as political or NGO leaders had intentionally disrupted national harmony with “inappropriate words and action” which cannot be justified in any sense.

“Forget about the strict interpretation of ‘seditious tendency’ as in the Act, ultimately there must be a balance for us to move forward,” he added.

Activist cum lawyer Haris Ibrahim is the latest victim under the Sedition Act, receiving eight months in jail after the Kuala Lumpur High Court found him guilty of sedition yesterday.

Apart from Haris, scores of politicians, activists, academicians and even media practitioners were detained or charged under the Sedition Act.

American Bar: Charges ‘frivolous’

Haris’ conviction has elicited an international outcry, with world rights group Amnesty International calling the move “the latest travesty in a series of politically motivated actions to silence dissent”.

The American Bar Association (ABA) also called the sedition charges “frivolous” and impinges on the right of lawyers to exercise their profession.

“As noted in (ABA’s) letter of March 12, 2015 the Sedition Act appears to have been used to bring frivolous charges against attorneys in retaliation for legitimate activities undertaken in the course of representing clients.

“The ABA Centre for Human Rights recently issued a report which found that the law is vague, over-broad and inconsistent with comparative practice in other common law countries,” said ABA president Paulette Brown in a statement today.

The ABA, she said, urges Malaysia to amend the law “to bring it into compliance with international standards and issue guidance to prosecutors” to ensure the law is not used to prosecute those engaged in legitimate activities.

http://m.malaysiakini.com/news/337922

No man is above the law

22/03/2016

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Should Chief Minister Lim Guan Eng be investigated?

Recently there have been numerous facts and figures pointed out against Lim’s controversial bangalow.

Accusation is one thing, more importantly is whether  Lim committed an offence under the law?

Under section 165 of the Penal Code (Act 574), it states :

Public servant obtaining any valuable thing, without consideration, from person concerned in any proceeding or business transacted by such public servant

“165.   Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any valuable thing, without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted, or about to be transacted, by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

Simply put, the relevant elements that require proof under s. 165 of the Penal Code are he is a public servant; accepted a valuable thing; from a person he knows and that the consideration  (purchase sum) given was known by him to be inadequate.

Thus under section 50 (3) of the Malaysian Anti-Corruption Commission (MACC) Act 2009 there is a presumption as follows:

” Where in any proceedings against any person for an offence under section 165 of the Penal Code it is proved that such person has accepted or attempted to obtain any valuable thing without consideration or for a consideration which such person knows to be inadequate, such person shall presumed to have done so with such knowledge as to the circumstances as set out in the particulars of the offence, unless contrary is proved.”

As Chief Minister, Lim Guan Eng is the presiding member of the State Executive Council and a member of the State Legislative Assembly, he is clearly a public servant, leaving the other ingredients under section 165 to be proved if he is charged.

Corruption in all manner and form cannot be condoned.

Everyone is entitled to a fair trial or to prove his case as one is presumed innocent until proven guilty.

Let the rule of law takes precedent.

AG won’t err?

16/03/2016

 

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Let’s the Court decide.

Can the Bar challenge the AG?

The Attorney General (AG) is supposed to be the guardian of the rule of law”.

“Some say this position is probably the most powerful one in Malaysia. However, whether that is true or not is a different question. Currently, he indeed has the [absolute] power to decide whether to institute any criminal proceedings in the court of law. Similarly he decides whether to discontinue a case after one is charged in court.”

AG’s powerM is conferred to him by Article 145 of the Federal Constitution. Whoever holds this position is appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister.  He holds the role as the Chief Adviser to the Government as well as the a Public Prosecutor. He has the duty to advise the government of the day and the Yang di-Pertuan Agong on any legal matter.

The AG’s prosecutorial discretion has not been strictly challenged in our local courts, though on numerous occasions legal issues related to a person’s constitutional rights were raised against AG’s discretion but never with success.

Now the questions I want to put forward are how should the AG exercise his sole and wide discretionary power given in Article 145 (3) ?  What if his discretion is wrongly exercised, can it be challenged in court?

Nothing whatsoever is expressly stated in Article 145 that the AG discretion is not subject to judicial scrutiny or review.

In the case of Datuk Seri Samy Vellu v  S Nadarajah [2000], the Court held that Article 145 (3) does not confer a monopoly of power on the AG.

In Singapore, the Court of Appeal decided in Ramalingam Ravinthran v The Attorney General  [2001], that the AG discretionary powers are not immune to judicial review if they are shown to have been exercised arbitrarily or in breach of a person’s constitutional rights.

Last month, Zaid Ibrahim and Khairuddin have also filed in a similar legal challenge against the AG.

The court should shed some light on this issue in order to improve public perspective of the administration of justice in our country. Or perhaps there is a need to amend the Constitution at the Parliament.

让法院决定
律师公会是否能挑战总检察长?

民青团署理团长杨锦成指出,总检察长应是法治的捍卫者。

“有人说该职位在马来西亚是最有权力的。然而,这是否属实仍另当别论。目前他确实有绝对权力作出刑事起诉。同样的,他也能决定在嫌犯被控上法庭后,是否要终止案件。”

总检察长的权力是在联邦宪法第145条文下所赋予的,也是最高元首在首相的建议下所委任的。他不但扮演着政府首席顾问的角色,同时也是一名检察官。他有责任在所有法律事务上,给予时任政府和最高元首建议。

总检察长的检控权一直都没有遭到我国法院的严格挑战。尽管曾在很多有关个人宪法权力的法律课题上,挑战总检察长的检控权,但却从未成功。

“现在我想提出的问题是,检察长如何行使第145(3)条文赋予其唯一和充分的检控权?若他错误行使检控权,是否可以在法庭接受挑战?”杨锦成问。

“第145条文并没有阐明总检察长的检控权不受司法审查或检讨,”杨锦成补充。

在2000年拿督斯里三美威鲁和纳达兰查的案件中,法庭认为第145(3)条文并没赋予总检察长绝对权力。

2001年,在新加坡的Ramalingam Ravinthran和总检察长的案件中,该国的上诉庭裁决若总检察长任意行使或违反某个人的宪法权力,那他的检控权不能幸免于司法审查。

几个月前,再益依布拉欣也对总检察长作出类似的法律挑战。

杨锦成认为,或许法庭应一劳永逸地明朗化该课题,以改善民众对我国司法的印象。

Curb corruption in civil service instead of cost cutting

10/03/2016

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The government’s cost-cutting measures would not help its finances as the real cause of the problem is corruption.

Such cost-cutting measures don’t really make a big difference to the government’s coffers.

As we know, the real cause is corruption and abuse of power that is bleeding the country’s finances dry.

While the move to cut civil service costs is commendable, the government must prioritise curbing corruption among the civil servants.

Following Prime Minister Najib Razak’s budget revision this January in the face of falling oil prices and the value of the ringgit, the civil service has been ordered to cut costs.

MACC must be independent.

The Malaysian Anti-Corruption Commission (MACC) should be reformed to give it more power to cull corruption within the government.

He cited how it was reported the commission had insufficient budget recently when they requested more integrity officers.

The MACC should be given more independence, resources and manpower […] to look into the government tender/procurement system, the nebulous ties between the police and crime – syndicates and the symbiosis between politicians, civil servants and businessmen.

This is where the government and some government linked companies (GLCs) have lost lots of money.

Otherwise we can never really go far regardless of any reform.

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