Monday, May 21, 2018

Najib - Cannot be charged for crimes as public servant until LAW is changed?

Prime Minister Najib, Menteri Besars, Chief Ministers, Members of the Cabinet...may all escape because our Federal Court have made a decision that Najib is a not a 'public officer' - and this means that he may not be made liable for all the crimes now in our Malaysian laws concerning wrongdoings of persons in public office, 'public officers', civil servants(penjawat awam)/public servant, etc... The Federal court decision said that Najib and such persons are all 'members of the administration' who are different...

Now, all courts will be bound to follow that Federal Court decision, until that Federal Court decision is maybe overruled sometime in the future ....THEREFORE, Parliament may have to pass or amend law to make it clear that Prime Ministers, Ministers, AGs and such persons appointed by the King and/or Rulers including MPs, Senators and ADUNs are all public servants ...

...Federal Court ruling that Prime Minister Najib Razak is not a public officer, and therefore, is immune from a suit over alleged misfeasance in public office. The former prime minister's appeal for leave was dismissed this morning by a three-man bench chaired by Chief Justice Md Raus Sharif, who affirmed the decisions of the Court of Appeal and high court.
REMEMBER that in Malaysia, we have a lot of offences with reference to (or specific to) public officers...See for example some of these offences in the Penal Code.


PENAL CODE Offenses

119 A public servant concealing a design to commit an offence which it is his duty to prevent
128 Public servant framing an incorrect document with intent to cause injury

CHAPTER IX OFFENCES BY, OR RELATING TO, PUBLIC SERVANTS 
161  Public servant taking a gratification, other than legal remuneration, in respect of an official act 
162  Taking a gratification in order, by corrupt or illegal means, to influence a public servant 
163  Taking a gratification, for the exercise of personal influence with a public servant
164  Punishment for abetment by public servant of the offences above defined
165  Public servant obtaining any valuable thing, without consideration, from person concerned in any proceeding or business transacted by such public servant
166  Public servant disobeying a direction of the law, with intent to cause injury to any person
167  Public servant framing an incorrect document with intent to cause injury
168  Public servant unlawfully engaging in trade
169  Public servant unlawfully buying or bidding for property

Now, the Federal Court decision was with regard a civil action - but, still it still may apply to also criminal charges.. and as such Najib may also not be able to be charged, tried and convicted successfully for any such offences by a Public servant(or a public officer or a person holding public office).

Neither can Najib now be sued in the civil courts for nonfeasance, misfeasance and malfeasance done when he was holding public office or by virtue of being a public officer or a public servant.
  • Nonfeasance is the failure to act where action is required — willfully or in neglect.
  • Misfeasance is the willful inappropriate action or intentional incorrect action or advice.
  • Malfeasance is the willful and intentional action that injures a party.
Therefore, Parliament need to clarify the law NOW - through an amendment or a new law, indicating most clearly that Najib, Prime Ministers, Members of the Cabinet, Attorney General, etc are all public officers, persons holding public office, public or civil servants.

If not, the law will be as what the Federal Court judgment says, which, in my opinion, was wrong. We can wait for another Federal Court decision to overrule the current Federal Court decision - but that may take too long, and until then all Courts will have to follow the Federal Court decision.

So, this is a priority for PM Mahathir and the new Pakatan Harapan government. A failure to do so will indicate that this Pakatan Harapan government is also happy with the current situation created by Federal Court in early 2018 - for it considers the PM (and maybe also Menteri Besars and Chief Ministers, Cabinet members...) all not 'public servants'...not persons holding public office...and such they save themselves from crimes concerning wrong doings of public servants, etc ...and even civil suits for their failures in government...Because, now they are 'members of the administration.

So what could be done:-

1)   Maybe relevant Acts could be amended now - to clarify the meaning of public servants, holders of public office, etc {but would that still allow Najib, and the UMNO-BN 'members of administration' to escape?

2)   Enactment of new LAW - to deal specifically with crimes of these 'members of administration'??

3)    Maybe, the problematic or 'regressive' Federal Court judgment could be reviewed?

4)    OR maybe, another case could be filed to settle this issue of whether 'members of the administration' are public officers and/or are persons holding public office? When it reaches the Federal Court, we could get a decision that overturns the previous 'regressive' judgment.[But then Najib has in place a Chief Justice and President of the Court of Appeal, who is still there past their retirement age - on contract for 3 years and 2 years respectively, and mind you this Chief Justice(Raus) was on the bench of the Federal Court that gave that 'bad' decision]

5)   Of course, the Federal Constitution may also have to be amended to clarify matters - but a Constitutional Amendment requires a two third majority of the members of Parliament present and voting, unlike most other laws that only require a simple majority. 

BUT SOMETHING MUST BE DONE NOW TO PREVENT ...

NAJIB, in his time as Prime Minister, has put many hurdles that will prevent Justice...



Dr Mahathir upset at Federal Court ruling that Najib not a public officer


Bede Hong


Dr Mahathir upset at Federal Court ruling that Najib not a public officer
Dr Mahathir Mohamad seen at the Kuala Lumpur High Court today. He says Najib Razak is a public officer, because if this was not so, the prime minister would not be where he is today. – The Malaysian Insight pic by Seth Akmal, February 27, 2018.


DR Mahathir Mohamad has expressed disappointment over today's Federal Court ruling that Prime Minister Najib Razak is not a public officer, and therefore, is immune from a suit over alleged misfeasance in public office.

The former prime minister's appeal for leave was dismissed this morning by a three-man bench chaired by Chief Justice Md Raus Sharif, who affirmed the decisions of the Court of Appeal and high court.

"I don't understand (the decision). He is a public officer, otherwise, he wouldn't be where he is because whatever he does involves the government and involves the public.

"I'm very upset at the decision,” Dr Mahathir told reporters at the Kuala Lumpur High Court.

To a question, Dr Mahathir responded: "Who is the judge? I have my doubts about the legality of his position. I feel he should not listen to this case."

Dr Mahathir had earlier applied for Raus to recuse himself from the case, as the Pakatan Harapan chairman had filed for a judicial review in September last year, challenging the constitutionality of Raus' appointment as chief justice.

Today, Raus ruled that Dr Mahathir's appeal did not have merit and failed to meet the requirements set by Section 96 of the Courts of the Judicature Act.

Dr Mahathir and former Batu Kawan Umno division leader Khairuddin Abu Hassan had filed the suit in March 2016, seeking a declaration that Najib had committed the tort of misfeasance, or wrongful exercise of lawful authority, as well as a breach of fiduciary duty in public office.

Dr Mahathir also commented on DAP leader Tony Pua's failed interim injunction appeal on February 14, when the Court of Appeal took judicial notice that Najib did not commit any wrongdoing with regard to the 1Malaysia Development Bhd scandal.

Justice Yaacob Md Sam said the prime minister had been cleared by the Public Accounts Committee (PAC), attorney-general, police, Malaysian Anti-Corruption Commission and Bank Negara Malaysia.

"The evidence regarding 1MDB has not been shown to the courts and the public," Dr Mahathir told reporters today.

"The public wants to know. There are three reports against Najib on 1MDB, by Bank Negara, MACC and also PAC.

"Why are these reports hidden? Criminal action by any government officer does not constitute an official secret. Official secrets are not about criminal acts.

"So, it is wrong to put these three reports under the Official Secrets Act. It's a case of hiding, and if you hide evidence of a crime, you are committing a crime.”

Dr Mahathir's lawyer, Haniff Khatri Abdulla, said an application for a review of today's Federal Court decision would be filed soon.

"In the application of leave, we just have to show there's a constitutional issue. Whether there's a legal issue for the Federal Court to determine an order for us to get leave, that's to be determined at the appeal stage.

"You're not supposed to decide now. I would say the Federal Court has failed to apply the correct principles in determining whether leave is to be granted or not.”

Dr Mahathir and Khairuddin were ordered by Raus to pay RM20,000 in costs to Najib. – February 27, 2018. - The Malaysian Insight, 27/2/2018
 

Ex-judge: PM not public officer is a regressive ruling

 | March 1, 2018
We must now await a future Malaysian court to make the correction, says Gopal Sri Ram.
gopal-najib

PETALING JAYA: Tuesday’s ruling by the Federal Court that Prime Minister Najib Razak is not a public officer has given him and his ministers a “blank cheque to abuse their powers”, a retired judge said.

Gopal Sri Ram said both academics and practitioners would regard this as a retrogressive decision and claimed Malaysia was probably the only Commonwealth country which had stood the law on its head.

“We must now await a future Malaysian court to make the correction,” he told FMT in response to the apex 
court’s decision, which affirmed that Najib is immune from a lawsuit for alleged misfeasance in public office as he is not a public officer.

The judgment by the three-man bench chaired by Chief Justice Raus Sharif had endorsed the previous decisions by the Court of Appeal and the High Court.

“We agree with their interpretation. Moreover, the applicants did not meet the threshold of Section 96 of the Courts of the Judicature Act,” he said in dismissing the leave to appeal application by former Umno members Dr Mahathir Mohamad and Khairuddin Abu Hassan.

Sri Ram, who retired as Federal Court judge, said the tort of misfeasance in public office is an ancient and well-established tort.

“Lord Diplock in Dunlop v Woolhara said it was a well-established tort. One of the elements of the tort is that the defendant must be a public officer.

“For the purposes of the tort, a public officer is one who receives a salary from the public coffers. He may or may not be a member of the administration for the purpose of the Federal Constitution. That is irrelevant,” Sri Ram said.

He added the leading case on the tort is Three Rivers v Bank of England, which has been applied by Malaysian courts.

“Also by reason of the Civil Law Act, the tort and its common law elements are part of our law. It is therefore not correct to say that the prime minister is not a public officer for the purposes of the tort,” Sri Ram said.

He said the effect of this latest decision is that no minister in Malaysia may be sued in the tort of misfeasance in public office.

High Court ruling

On April 28 last year, High Court judge Abu Bakar Jais, in allowing Najib to strike out a suit by Mahathir, Khairuddin and Anina Saadudin, said the prime minister could not be sued for abuse of power in office as he was not a public official.

In his 31-page ruling, Bakar said the terms “public officer” and “public office” in the Interpretation Act were only applicable to civil servants as stated under Article 132 (1) of the Federal constitution.

“Clearly the defendant (Najib) is not a member of any services listed in the constitution,” he said.

Further, he said, Article 132(3)(a) stated that the public service excluded the office of any member of the administration in the federation or state.

Bakar said Article 160 (2) then stated that a member of the administration in Putrajaya was meant to be a person holding the office of minister (which includes prime minister), deputy minister or parliamentary secretary and political secretary.

At the state level, it includes the menteri besar or chief minister and their state executive council members.

On Aug 30 last year, the Court of Appeal affirmed the findings of the High Court.

In their statement of claim filed in March 2016, Mahathir, Khairuddin and Anina said they were among the rightful parties to take action against Najib.

They traced the chronology of the 1MDB investigations dating back to March 2015, from the formation of a special task force, to then attorney-general Abdul Gani Patail’s sudden resignation, and the sacking of former deputy prime minister Muhyiddin Yassin.

They said Najib had continuously interfered with the due process of the law to ensure all the relevant authorities discontinued from carrying out and concluding the investigations into his alleged misconduct over the RM2.6 billion donation and RM42 million from SRC International.

The plaintiffs wanted a declaration that Najib had committed the tort of misfeasance and breach of fiduciary duty in public office.

They also wanted Najib to return to the government the money found in his private bank accounts.

However, Najib filed the action to strike out the suit on grounds that it was unsustainable, frivolous and vexatious. - FMT, 1/3/2018
 

Sunday, May 20, 2018

Mat Sabu NOT Muhyiddin should be HOME Minister?

 Image result for muhyiddin home minister


Muhyiddin Yassin may not be the best choice for Home Minister...not yet. The reason is that he was so recently in the UMNO-BN cabinet of Najib, and there is very little history of him speaking out for reforms and changes especially in the police force or enforcement agencies that will come under the Home Ministry's responsibilities. 


A quite man really, who never really spoke out about inadequacies in the UMNO-BN administration save for speaking about the 1MDB which led to his removal from the Cabinet and later UMNO.

Being DPM and also in the cabinet of the UMNO-BN government, and an UMNO leader for so long - he certainly may not be the best choice now to deal with real REFORMS and changes within the departments and agencies, especially the police, MACC, Immigration Department and enforcement agencies that comes under the responsibilities of the Home Minister. 

Now, one area that he would have to focus on is also the Immigration Department, which was previously under Zahid Hamidi, which outsourced work that really should be done by the Immigration Department. 

Now, we are focusing much on Najib - but we really need to also start focusing on the past DPM, Zahid Hamidi, as there was a lot of concerns about 'family' involvement in certain companies who have been dealing with issues concerning immigration - remember the issue of the over a million of Bangladeshi migrant workers. Consider also the oddity that some companies involving in recruitment of migrants were strangely also getting 'work' outsourced by the Immigration Department. 

Will Muhyiddin be able to discount his past relationships with Zahid Hamidi or others in the former Najib's Cabinet and the leadership of UMNO? He may or may not may not be the issue - but perception of Malaysians is a concern.

Remember Muhyiddin was a recent former Deputy Prime Minister of Najib, and personally, I found that he was just 'too silent' in the face of wrongdoings and abuses that may or may not have happened not just in 1MDB. 

His silence then, and his failure to not actively speak out even NOW about all the other wrongdoings that may have happened which he reasonably should have known also makes people very concerned. Remember that not only the perpetrator of wrongs or crime is guilty, but also those who knowingly keeps 'quite' - for their silence may even make them an 'accomplice'.

For example, the money in Najib's personal bank account, which allegedly was used for the UMNO-BN campaign for the last elections - the money which Najib's brother doled out ...etc. Has Muhyiddin to date revealed any of these wrongdoing - or even stated that he was against such practices. OR did it just take it and use it during  PRU13? Silence could create the impression that he may have even been agreeable to such practices.

REPENT - Well, it is true that Muhyiddin may have repented his wrongdoings but sadly, I do not remember him disclosing these wrongdoings and apologizing for it. The investigations are ongoing on Najib, but alas some of these happened during the time that Muhyiddin was the DPM.

If Muhyiddin alleges that he did not know - then his competence as UMNO No. 2 and DPM becomes a question.

All these concerns may make Muhyiddin unsuitable for the post of Home Minister at this very moment...maybe Mat Sabu should be made Home Minister, and maybe Muhyiddin should hold the Defence Minister portfolio or some other portfolio.

As investigations are on-going on Najib and matters that happened during the UMNO-BN 'reign', some of which certainly happened when Muhyiddin was Deputy Prime Minister, and also the No.2 in UMNO and BN, would it not be odd that he becomes the HOME Minister NOW in charge of the police and other enforcement agencies doing this current investigation. Would his position as HOME Minister affect the investigations, as some of these investigations may reveal his own personal involvement in some of these wrongs? 

He may also end up being a potential witness for the prosecution in cases against Najib and other persons in past administration - well, it would be odd if he is also the Home Minister.

Scorpene - Well, this may directly be linked to the Defence Ministry. So, which Ministry for Muhyiddin - something that is certainly not linked to possible wrongdoings of Najib and its government. Well the various issues - FELDA, Proton, ECRL, Immigration, Police, etc

Will UMNO be declared illegal - well, is not the Registrar of Society also under the Home Minister?

Muhyiddin, really, at this time, should really not even be in Cabinet - but, if he must be, then he should really not be put in charge of any of the Ministries that are being investigated now OR may be investigated in the near future, or 'involved' in some of these crimes.

This is my OPINION ...and our concerned must be for the best of Malaysia, and what we need now is a CLEAN untarnished and efficient government....and public perception must never be ignored.



 

Saturday, May 19, 2018

14 Days - Have Tian Chua, Dr Streram,...filed their Election Petitions yet?

ELECTION PETITIONS - Well, Pakatan Harapan may have won in GE14 but remember that several candidates allegedly had their nominations rejected wrongfully ...even wrongly allowed to enter in time the Nomination Centre. 

Most famous of this was Tian Chua and  Dr Streram Sinnasamy(Prevented entry to file nomination in time by SPR officers). Several were alleged to be still a bankrupt although they alleged they were not. 

WELL, the time for filing Election Petitions is running out - It must be filed within 14 days from the date the Election Results are gazetted, and in other cases within 21 days from the date the Election Results are gazetted.

In Tian Chua's case, the court dismissed his earlier suit - stating that he must file an Election Petition. Has he done it yet? He must do so because his 'disqualification' not only affected Tian Chua's right - but the rights of the people of Batu to choose their MP.


PKR candidate Dr Streram Sinnasamy, who was denied entry into the nomination centre to file his papers, has filed a suit for misfeasance in public office against the returning officer and the Election Commission (EC).Streram, who is claiming damages amounting to RM7.6million, said the officer, Amino Agos Suyub, and the EC failed to carry out their duties in accordance with the Election Act 1958. Well, that is good - BUT he still must file an Election Petition, which if successful, will result in an election again which will result in him being chosen as the ADUN.

In Dr Streram's case, a similar thing happened to Jenice Lee(PRM) but without the EC passes she was allowed to enter at 9.08am. Dr Streram was also allowed to enter later, possibly without EC passes, but to late to submit the nomination papers by 10.00am. 

Dr Streram is, according to my opinion, is entitled to a new elections ...and people will choose their ADUN. Has he already filed his Election Petition? Failure would also be a betrayal of the people of that area - the electors.

As nomination started at 9am, Parti Rakyat Malaysia candidate for Teratai state seat Jenice Lee was denied entry by the police into the Pandan Indah MPAJ nomination centre, as she did not have her EC passes with her....But minutes later, an EC personnel who was informed of the matter came out to escort her in. She entered the nomination centre at 9.08am.- The Edge Markets, 28/4/2018


Now for those whose nominations were rejected on the allegation that they were 'BANKRUPT' when they claimed that they were. They MUST file an election petition, which I believe best be done within 14 days. If they were truly bankrupt as SPR says - Malaysian and party members must be apologized too by the said candidate, and the Party leaders responsible for choosing and approving candidates.

Running for ADUN without an address in the relevant State - this issue have emerged in past elections. Shocking that the political parties can make such mistakes - it goes towards the issue of competence...

PACA - A lot of people volunteered their time and energy to record all wrongdoings - have these all been reported to the SPR, Police and what I suggested earlier being SUHAKAM. Those who pretended to be some other and voted, hence depriving a legitimate voter to vote is a serious offence.

SADLY the SPR do not seem to have enforcement and prosecutorial powers - hence, the responsibility may fall to the police...but are the police and the Public Prosecutor doing this now.

What about shifting voters to other constituencies? What about removing voters from the Electoral roll? What about registering voters that do not exist...or wrongly? Well, here the guilt may lie with SPR and also their officers. Again, it may come to the police and the Public Prosecutor to act.

What about 'fake IDs' issued to some to vote in the place of another, and/or to enabled the unqualified to register and vote? Again, it may come to the police and the Public Prosecutor to act.

CLEAN ELECTIONS is a major concern of Malaysians, which could be seen in the hundreds of thousands that came out for BERSIH events.

Who wins or loses does not matter, these wrongdoings must be investigated and the guilty must be prosecuted to the full extend of the law in an open court. Internal disciplinary actions by the Commissions, Ministry and Departments is not what we want - we want a public trial. It will also deter such crimes in the future...


 


 


32  Avoidance of election on election petition(Election Offences Act 1954)

The election of a candidate at any election shall be declared to be void on an election petition on any of the following grounds only which may be proved to the satisfaction of the Election Judge:
(a) that general bribery, general treating or general intimidation have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;
(b) non-compliance with the provisions of any written law relating to the conduct of any election if it appears that the election was not conducted in accordance with the principles laid down in such written law and that such non-compliance affected the result of the election;
(c) that a corrupt practice or illegal practice was committed in connection with the election by the candidate or with his knowledge or consent, or by any agent of the candidate;
(d) that the candidate personally engaged a person as his election agent, or as a canvasser or agent, knowing that such person had within seven years previous to such engagement been convicted or found guilty of a corrupt practice by a Sessions Court, or by the report of an Election Judge; or
(e) that the candidate was at the time of his election a person disqualified for election.
38  Time for presentation(Election Offences Act 1954)
(1) Every election petition shall be presented within twenty-one days of the date of publication of the result of the election in the Gazette:
Provided that-
(a) an election petition questioning the return or the election upon the ground of a corrupt practice and specifically alleging a payment of money or other act to have been made or done since the date aforesaid by the person whose election is questioned or by an agent of the person or with the privity of the person or his election agent in pursuance or in furtherance of such corrupt practice may, so far as respects such corrupt practice, be presented at any time within twenty-eight days after the date of such payment or act;
(b) an election petition questioning the return or the election upon an allegation of an illegal practice may, so far as respects such illegal practice, be presented within the time following:
(i) at any time before the expiration of fourteen days immediately after the date of the publication in the Gazette of the notice required by section 24 as to the election expenses of the person whose election is questioned;
(ii) if the election petition specifically alleges a payment of money or other act to have been made or done since the said date by the person whose election is questioned or by an agent of the person or with the privity of the person or of his election agent in pursuance or in furtherance of the illegal practice alleged in the petition, the petition may be presented at any time within twenty-eight days immediately after the date of such payment or other act.
(2) An election petition presented in due time may, for the purpose of questioning the return or the election upon an allegation of a corrupt or illegal practice, be amended with the leave of a Judge of the High Court within the time within which an election petition questioning the return or the election upon that ground may be presented.

(3) For the purposes of this section, where there is an authorized excuse for failing to make and transmit the return and statements respecting election expenses, the date of the allowance of the excuse or, if there was a failure in two or more particulars and the excuse was allowed at different times, the date of the allowance of the last excuse shall be substituted for the date of the publication of the notice mentioned in the proviso to paragraph (1)(b).

GE14: A List Of Candidates Whose Nominations Were Rejected And Why

Most of them are from Pakatan Harapan.
  • 1. PKR vice-president Tian Chua was disqualified from contesting the Batu parliamentary seat

    • Tian Chua was disqualified due to an RM2,000 fine imposed on him last month, despite the fact that the fine is below the threshold for disqualification from elected office.

      Interestingly, though, Tian Chua was allowed to contest in the 2013 general election when he faced a similar fine of RM2,000 in 2010, reported Malaysiakini.

      While he would file a legal challenge against the decision which he described as underhanded tactics to defeat PH, with him being disqualified, PH has lost Batu.
  • 2. Bersatu's Yaakob Osman was disqualified from contesting the Penaga state seat in Kepala Batas

    • Yaakob Osman was disqualified on the grounds of being bankrupt. However, the Bersatu candidate denied being bankrupt, according to The Star Online.

      "The election commission has said that there is data that I am bankrupt. We did a check last week and yesterday as well.

      "There were no issues and I have not been summoned by anyone or declared bankrupt. The election commission has decided, nothing can be done," he said.
  • 3. Bersatu's Pizi Jihat's nomination papers were rejected from contesting the seat of Bukit Pasir

    • Pizi, too, was disqualified on the grounds of being bankrupt.

      Surprisingly, though, the Bersatu candidate had already settled his bankruptcy prior to being nominated and had brought together the proof of same with him.

      While a search on the Insolvency Department's website had shown that he is not bankrupt, the returning officer said the latest check showed he was bankrupt.

      Bersatu president Muhyiddin said they will consult with their lawyers on the next step.
  • 4. Mohamad Badri Abdul Rahman from PAS was disqualified from contesting the Subang Jaya seat

    • The PAS candidate was disqualified on grounds of being bankrupt.

      With Mohamad Badri being out, the Subang Jaya seat would see a three-cornered fight between BN's Chong Ah Wat, PKR's Michelle Ng and Toh Sin Wah, Independent.
  • 5. PKR's Dr Streram Sinnasamy failed to file his nomination papers after he was denied entry into the nomination centre

    • According to a report in NST Online, Streram, along with his proposer and seconder, were denied entry as each of them lacked a pass from the Election Commission (EC).

      Reportedly, Streram and his supporters arrived at the nomination centre at about 8am and they protested against the police when the authorities prevented them from entering the centre, which caused the situation to be "a little tensed".

      With Streram, the sole challenger from Pakatan Harapan, failing to file his nomination papers, BN candidate Mohamad Hasan has won the Rantau state seat uncontested.
  • 6. PKR's Mohd Azihan Che Seman was disqualified from contesting the seat of Tawang

    • The reason for Azihan's disqualification was that his identity card address was not in Kelantan, which is a prerequisite to contest in the state seat there.
  • 7. PKR's Mohd Hafidz Rizal Amran was disqualified from contesting the seat of Kuala Balah

    • According to reports, it was on the grounds of him being bankrupt.
  • 8. Pakatan Harapan's Sivamalar Ganapathy, who was to contest the Bukit Melawati seat, was replaced

    • "Candidates contesting for a state seat must have an address within the same state but Sivamalar had a Pahang address on her MyKad," Malaysiakini reported.

      In light of which, PKR then brought in its Srikandi leader Juwariyah Zulkifli as a backup, whose candidacy was accepted. - Malaysiakini from SAYS

Senate - Problems with a majority UMNO-BN appointed Senators, and the REFORMS needed?

For any LAW to be passed, after it is passed in the Dewan Rakyat - it must also be passed by the Dewan Senat. Only then it is send to the King for his royal assent.

Therefore, Pakatan Harapan may manage to pass laws in Dewan Rakyat ...but when it comes to the Senate, it may be blocked by a Senate comprised of mainly UMNO-BN government chosen Senators. Will they behave like independent Senators - or will they continue voting as UMNO-BN suggests/directs?

However, in Malaysia, after a General Election, it does not mean that the current Senators must resign - NO- they will remain Senators until their 3-year term is over. So, will the Senate comprised now of Senators appointed by the UMNO-BN(except for 6 from Kelantan, Penang and Selangor) sabotage all new laws, by not passing these laws that the Pakatan Harapan or Opposition dominated(including PAS and others) Dewan Rakyat approves.

Senators cannot be replaced until the end of their 3 year term. They cannot be 'forced' to resign earlier.  

PROBLEM with the Malaysian Senate is that it has been a 'rubber stamp' that simply approved everything that was put forward by the former UMNO-BN government - in that way, one may say that it is just a waste of Malaysian peoples' monies - the maintenance of the Senate, salaries and allowances for Senate.

(1) Subject to Clause (4), the Senate shall consist of elected and appointed members as follows:

(a) two members for each State shall be elected in accordance with the Seventh Schedule; and
(aa) two members for the Federal Territory of Kuala Lumpur, one member for the Federal Territory of Labuan and one member for the Federal Territory of Putrajaya shall be appointed by the Yang di-Pertuan Agong; and
DURING the UMNO-BN rule, there may have been abuses by the Prime Minister(BN) - as we see many who were not successful in the Parliamentary elections were simply appointed as Senators, some even were appointed Senators just so that they can be brought into the UMNO-BN Cabinet.

The Senators from the States were not democratically elected and chosen by the people themselves - but by the State Legislative Assembly. (See below for the Seventh Schedule).

44 Senators were simply appointed based on the advice of the Prime Minister...As such, the UMNO-BN may have managed to place 'their people' as Senators. Oddly enough, we do not hear about any of these Senators even consulting(or even meeting) the people or the respective groups they are supposed to be representative. Who is the Senator representing 'industry' - have we ever heard of him meeting and dialoguing with people from that sector. I am certainly not seen any Senator representing the legal profession having discussions and/or dialogue with the legal profession. The State of Affairs in the Malaysian Senate needs drastic 'TRANSFORMATION'...and the good news is that our Constitution allows for it - without even having to amend the constitution - all that is needed is a LAW to be passed, and laws are passed by majority support in Dewan Rakyat..Will Mahathir and the Pakatan Harapan do this, and make our Senate made up of democratically elected by the people Senators.


26 members elected by the State Legislative Assembly to represent 13 states (each state represented by two members).

44 members appointed by His Majesty The King on the advice of the Prime Minister, including two members from the Federal Territory of Kuala Lumpur, and one member each from the Federal Territory of Labuan and Putrajaya.- Malaysian Parliament Website

Now, our Federal Constitution provides the possibility of democratic elections - but sadly, even the Opposition States like Kelantan, Selangor and Penang - chose to just follow the UMNO-BN, and appointed these Senators vide the State Legislative Assemblies.Things must change now.


(4) Parliament may by law -

(a) increase to three the number of members to be elected for each State;
(b) provide that the members to be elected for each State shall be so elected by the direct vote of the electors of that State;
(c) decrease the number of appointed members or abolish appointed members.
REFORMASI - Well, the time has come for Malaysians to democratically elect their Senators.  

WHAT REFORMS DO WE WANT?

1- All Senators representing States SHALL democratically elected by the people.

2- Increase to three(3) the number of Senators per State. This is allowed in our Federal Constitution. If 3 from 13 States, it will make it 39 plus the 2 from Labuan and Putrajaya makes 41 democratically elected Senators. Now, the number of Senators appointed by King on advise of PM is 44.

3 - People of Kuala Lumpur shall be entitled to elect three(3) Senators as well, while there will be one(1) Senator for Labuan, and one(1) for Putrajaya.

4 - With regard the 40 appointed Senators, it should be decreased, and the number for each category should be defined clearly:-

Rendered distinguished public service or have achieved distinction in the professions - There should be three(3) from public service, three(3) from judiciary, professional representatives - medical, legal, architects & engineers, accountants and auditors, academics. For the professions, the representatives shall be elected by the members of the professions concerned, and there shall be 2 representatives from each of the profession.


commerce, industry, agriculture, cultural activities or social service or - people in the respective sectors can elect their representative

are representative of racial minorities or are capable of representing the interests of aborigines.- people in the respective sectors can elect their representative


 



45  Composition of Senate.

(1) Subject to Clause (4), the Senate shall consist of elected and appointed members as follows:
(a) two members for each State shall be elected in accordance with the Seventh Schedule; and
(aa) two members for the Federal Territory of Kuala Lumpur, one member for the Federal Territory of Labuan and one member for the Federal Territory of Putrajaya shall be appointed by the Yang di-Pertuan Agong; and

(2) The members to be appointed by the Yang di-Pertuan Agong shall be persons who in his opinion have rendered distinguished public service or have achieved distinction in the professions, commerce, industry, agriculture, cultural activities or social service or are representative of racial minorities or are capable of representing the interests of aborigines.

(3) The term of office of a member of the Senate shall be three years and shall not be affected by a dissolution of Parliament.
[Am. Act A1130]
(3A) A member of the Senate shall not hold office for more than two terms either continuously or otherwise:

Provided that where a person who has already completed two or more terms of office as a member of the Senate is immediately before the coming into force of this Clause a member of the Senate, he may continue to serve as such member for the remainder of his term.

(4) Parliament may by law -
(a) increase to three the number of members to be elected for each State;
(b) provide that the members to be elected for each State shall be so elected by the direct vote of the electors of that State;
(c) decrease the number of appointed members or abolish appointed members.


 SEVENTH SCHEDULE
[Article 45]
Election Of Senators
[Am. Act A1130]
1. (1) (Repealed).
(2) As often as there is a vacancy among the members elected to the Senate by a State the Yang di-Pertuan Agong shall give notice to the Ruler or Yang di-Pertua Negeri of the State that an election of a Senator is required and the Ruler or Yang di-Pertua Negeri shall require the Legislative Assembly to elect a Senator as soon as may be.
2.(1) The names of candidates for election shall be proposed and seconded by members of the Assembly and the member proposing or the member seconding shall submit a statement in writing, signed by the person nominated, that he is willing to serve as a Senator if elected.
(2) When all the nominations have been received, the presiding officer shall announce the names of the persons nominated in alphabetical order and shall then put their names to the vote in that order.
(3) Each member present shall be entitled to vote for as many candidates as there are vacancies to be filled, and the names of the members voting for each candidate shall be recorded; and if any member casts a vote in addition to those allowed by this subsection that vote shall be void.
(4) The presiding officer shall declare to be elected the candidate or candidates who receive the largest number of votes, but if two or more candidates have an equal number of votes and the number of those candidates is larger than the number of vacancies to be filled, the election of those candidates shall be determined by lot.
3. Notwithstanding anything in section 2, if a vacancy due to the expiry of the term of office of a Senator is to be filled at the same meeting as a vacancy arising in any other way there shall first be an election to fill the vacancy due to the expiry of the term and then a separate election to fill the other vacancy.
4. The presiding officer shall certify to the Clerk to the Senate, by writing under his hand, the name of a person elected as Senator in accordance with the provisions of this Schedule.
5. If any question arises whether a member of the Senate has been duly elected in accordance with the provisions of this Schedule, the decision of the Senate shall be taken and shall be final, but the failure to hold an election under subsection 1(2) as soon as may be shall not of itself invalidate the election of any Senator.



BN-appointed senators must resign, says ex-judge

 | May 15, 2018
Failure to do so will give the impression that they intend to give the PH federal government as much difficulty as possible, says Gopal Sri Ram.
Gopal Sri Ram says the first to step down should be the Dewan Negara president. (Youtube screengrab)

PETALING JAYA: All senators appointed by the king to the Dewan Negara should resign to allow the newly-installed federal Pakatan Harapan (PH) government to carry out the mandate of the people after the bitterly-contested national polls, a retired judge said.

Gopal Sri Ram said senators elected by legislative assemblies, now under PH state governments, should also vacate their positions.

“In law, their terms are not affected but as a matter of conscience, they should resign,” he told FMT.

Otherwise, he said the ordinary man was entitled to think that their purpose of staying on was to give the elected federal government as much difficulty as possible in the legislative process.

“They can attack the PH government and refuse to pass bills,” he added.

Sri Ram said the first to step down should be the Dewan Negara president as this was to make way for the 
PH federal government to appoint a candidate of its choice.

The term of office of senators is for three years and is not to be affected by any dissolution of the Dewan Rakyat.

Under Article 45, the Dewan Negara consists of 44 members appointed by the king on the advice of the prime minister.

These senators should be persons who “have rendered distinguished public service or have achieved distinction in the professions, commerce, industry, agriculture, cultural activities or social service or are representative of racial minorities or are capable of representing the interests of aborigines”.

Another 26 represent the 13 states in the federation, who are elected by their state assemblies.

PH won power in Johor, Melaka, Negeri Sembilan, Selangor, Perak , Penang and Kedah while Parti Warisan and its PH allies have secured Sabah.

Pahang, Perlis and Sarawak are under Barisan Nasional while Kelantan and Terengganu are under PAS.
Meanwhile, former Malaysian Bar president Ragunath Kesavan said it was convention for political appointees to step down from their positions once a new government was installed after a general election.

“It is for the new administration to decide who their appointees should be,” he said.

He said in 2008, former de facto law minister Zaid Ibrahim resigned from the Senate when he left Abdullah Ahmad Badawi’s administration.

He said all should also emulate the example of former Johor Baru MP Shahrir Abdul Samad, who resigned as Felda chairman after the election.

“So I hope those in government-linked companies, statutory bodies and commissions would also follow the example of Shahrir,” he said.- FMT, 15/5/2018

Friday, May 18, 2018

Anwar's Pardon - Meaning, Validity and Matters concerning Attorney General?

#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?

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

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

 | May 15, 2018
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;
(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).
(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.

(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;
(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;
(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;
(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.
(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.


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;
(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,
and in any other case mentioned in this Constitution.
(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.