No man is above the law

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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.

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AG won’t err?

 

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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 power 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

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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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