MADPET is for the Abolition of Death Penalty, an end of torture and abuse of rights by the police, an end to death in custody, an end to police shoot to kill incidents, for greater safeguards to ensure a fair trial, for a right to one phone call and immediate access to a lawyer upon arrest, for the repeal of all laws that allow for detention without trial and an immediate release of all those who are under such draconian laws.
Commissioners actively involved in politics must NOW
resign or be removed as Human Rights Commissioners as the law is in force –
Appoint more suitable Commissioners like Mohd Hishamudin Md Yunus
SUHAKAM Amendment Act in
force since 10/7/2024 – those ‘actively involved in politics and registered
with any political party’ cannot be HR Commissioners
Human
Rights Commission of Malaysia (Amendment) Act 2024 finally came into force on
10/7/2024 (PU(B) 247/2024), which amongst others introduces a new Section 5(3B)
Any person who is actively involved
in politics and registered with any political party shall not be appointed as a
member of the Commission.".
The
Amendment Bill has been passed in Parliament, whereby it was passed at the
Dewan Rakyat on 29/11/2023 and the Senate on 2/4/2024, and it finally has
become law on 10/7/2024.
MADPET
(Malaysians Against Death Penalty and Torture) notes that the Human Rights
Commission Act, even before the amendment, was already clear that active
politicians ought not be appointed HR Commissioners, whereby this principle was
also stated in the act, whereby members of the Committee to be consulted with
regard to appointment could not be ‘…(a) any person who is actively involved
in politics and registered with any political party…’ Section 11A(4)(a) of
the Act.Anyhow, it is now clearly the
law.
MADPET
reiterates its call for UMNO politicians, Hasnal Rezua Merican Bin Habib
Mericanand any other active politicians
who are still SUHAKAM Commissioners to RESIGN or alternatively be removed as
SUHAKAM Commissioners.
The END of Hasnal and active politicians as SUHAKAM Commissioners
Since
1/7/2022, when Selayang Umno chief Datuk Hasnal Rezua Merican Habib Merican and
the Kulim Umno women’s division chief Nazira Bt Abd. Rahim were appointed as
SUHAKAM Commissioners, there was an outcry from various quarters including
MADPET but sadly neither did resign nor be removed.
In November
2022, when the new government under the premiership of Anwar Ibrahim can into
power, nothing was sadly done with regard the removal of these active
politicians.
Then, came
the Selangor State elections, when embarrassingly a
sitting HR Commissioner Hasnal Rezua Merican, without first resigning as
Commissioner, stood as a candidate of UMNO-BN for
the Kuang seat in Selangor on 12/8/2023, and lost. Calls for removal or
resignation to date have failed. Hasnal Rezua Merican remains a SUHAKAM
Commissioner to date.
Even when
it comes to government employees, they will resign their position first before
contesting for any elections. Now, we had a sitting SUHAKAM Commissioner, who stood
for elections as a candidate of a government party, and ended up being rejected
by the people. He is still a SUHAKAM Commissioner.
Then, the
BN chairperson Ahmad Zahid Hamidi, also the Deputy Prime Minister and the UMNO president
after the nomination of Hasnal, said he ‘…had reviewed the matter with lawyers
on nominating Hasnal…. There is not even one regulation which bars (the
nomination) …’(NST, 3/8/2023).
Now, this
‘confusion’ is no longer there, after Parliament made it most clear that persons
actively involved in party politics should not be Human Rights Commissioner.
Thus, there
is no more justification for Hasnal Rezua Merican and any other such SUHAKAM
Commissioners to remain as SUHAKAM Commissioner.
Effective HR Commission need the RIGHT Commissioners
To be
effective in the promotion and defence of Human Rights, SUHAKAM needs the right
persons to be appointed as Commissioners – those who are truly committed to
Human Rights and is also not
afraid of the State or government, noting
that it is fact that many a times the alleged perpetrator of many rights
violations is the State and/or its officers.
New batch HR Commissioners (since July 2022) found wanting
Comparatively,
the present batch of SUHAKAM Commissioners have been found wanting compared to previous
SUHAKAMs. SUHAKAM since formation in April 2000 was perceived as ‘toothless’
but this changed after Hasmy Agam and fellow Commissioners were appointed in July
2010 as Chairman and SUHAKAM Commissioners. This real SUHAKAM, a human rights
institution that people can rely on, continues until the recent batch of
Commissioners was appointed in July 2022.
Will Appointment of Mohd Hishamudin Md Yunus Return SUHAKAM to its past
glory?
MADPET
applauds the recent appointment of Mohd Hishamudin Md
Yunus as the Chairman of Human Rights Commission Of Malaysia (SUHAKAM) with
effect from 3/7/2024. (Malay Mail, 5/7/2024).
Hishamudin, a member in the immediate
past batch of SUHAKAM Commissioners, which then ensured that SUHAKAM was truly
committed to upholding human rights and justice without fear or favor.
Hishamudin,
a former judge as SUHAKAM Commissioner, chaired the 2nd Public Inquiry on enforced disappearance that found the
Malaysian government and police ‘guilty’ of enforced disappearance – ‘unanimous view that Joshua Hilmy and Ruth Sitepu are victims of
enforced disappearance as defined in Article 2 of ICCPPED[International
Convention for the Protection of All Persons from Enforced Disappearance] and as
well as defined in customary international law.’
It found
that there was ‘…acquiescence of the Royal Malaysian Police as the agent of the State followed by a
refusal on the part of the Royal Malaysian Police to acknowledge the deprivation
of their liberty, and such refusal to acknowledge has placed these two persons
outside the protection of the law…’ In short, the failure of a speedy response
and investigation by the police and the government makes them guilty of
enforced disappearance, even if the actual person/s that caused the ‘disappearance’
are not proven to be the police or agents of the State.
The earlier
public inquiry chaired by SUHAKAM Commissioner Mah Weng Kwai(former Judge) was ‘of
the considered view that the
enforced disappearance of Pastor Raymond Koh was carried out by agents of the
State namely, the Special Branch, Bukit Aman, Kuala
Lumpur, within the defini�on of the first limb under Ar�cle 2 of ICPPED.
SUHAKAM Commissioners, who do not fear laying blame on government
We need
strong SUHAKAM Commissioners, who do not fear laying blame on government in
appropriate situations of human rights violations.
For SUHAKAM
to commence and conduct a public inquiry, there is a need for majority support
from existing Commissioners, and hence that lack of good HR Commissioners, who do
not fear antagonizing the government of the day, is a problem. Likewise for
statements of SUHAKAM, noting that it is still possible for individual SUHAKAM
Commissioners to express their own views on human right at any time.
This new
batch of SUHAKAM Commissioners, since July 2022, has been lacking when one
peruses the number and contents of statements issued. There has been yet not a
single Public Inquiry initiated, or any Investigation Report issued. In terms,
of even SUHAKAM’s annual report, there has been no published SUHAKAM report for
2022 and 2023 yet.
Besides the
appointment of Mohd Hishamudin Md Yunus as the Chairman, and the removal of
active politicians as SUHAKAM Commissioners, there is a need for the
appointment of better SUHAKAM Commissioners.
At present,
the law provides for a maximum of 20 SUHAKAM Commissioners, and with
Hishamuddin, we now have 10, and there is room for appointment more Commissioners
in our quest to bring about a return of a real Human Rights Commission, who
will act without fear or favour for human rights.
It is time
also for SUHAKAM to be placed under Parliament, for it foolhardy to harbour the
belief that all Prime Ministers are committed to the promotion and defence of
human rights.
Charles Hector
For and on behalf
of MADPET (Malaysians Against Death Penalty and Torture)
HUMAN RIGHTS COMMISSION OF MALAYSIA (AMENDMENT) ACT 2024In Force from:10 July 2024 [PU(B) 247/2024]Gazetted Date:27 June 2024
Mohd Hishamudin Md Yunus appointed new Suhakam chairman
Datuk
Seri Mohd Hishamudin Md Yunus has been appointed as chairman of the
Human Rights Commission of Malaysian (Suhakam) for a three-year term
effective last Wednesday. — Picture by Yusof Mat Isa
Friday, 05 Jul 2024 5:39 PM MYT
PUTRAJAYA,
July 5 — Datuk Seri Mohd Hishamudin Md Yunus has been appointed as
chairman of the Human Rights Commission of Malaysian (Suhakam) for a
three-year term effective last Wednesday (July 3).
Chief Secretary
to the Government (KSN) Tan Sri Mohd Zuki Ali said the appointment was
consented to by His Majesty Sultan Ibrahim King of Malaysia under
subsection 5(2) of the Suhakam Act 1999 (Act 597).
Mohd Hishamudin, 75, replaces Professor Datuk Rahmat Mohamad, 64, who resigned last August 31. — Bernama, Malay Mail, 5/7/2024
Where is Suhakam, why the silence, MPs ask
Isabelle Leong, Zarrah Morden & Shakira Buang
Published: Jun 27, 2024 6:08 PM
⋅PARLIAMENT
| Lawmakers from both sides of the political divide have taken the
government to task over the delay in appointing a Suhakam chief after
the position fell vacant last August.
Another government MP
condemned Suhakam over its evident silence on the issue of preacher
Firdaus Wong allegedly suggesting ways to secretly convert non-Muslim
teenagers to Islam.
Hassan Abdul Karim (Harapan-Pasir Gudang) did
not mince his words when he told the Dewan Rakyat today that Suhakam has
kept mum on matters pertaining to racial discrimination as well as
religious freedom in the country.
“My question is why isn’t there
any response from Suhakam on this issue (involving Firdaus)? Suhakam is
certainly more aware that religious freedom is the universal right of
all Malaysians, whether they are Muslims or non-Muslims.
“I, as a Muslim, take this matter (regarding Firdaus’ remarks) seriously for the sake of national harmony.
“The actions of this individual (Firdaus) have caused concern and alarm among non-Muslims in Malaysia,” Hassan said.
He
said this when debating on the motion towards the “Annual Report and
Financial Statement of the Human Rights Commission of Malaysia (Suhakam)
2021-2022” in the lower house today.
The PKR veteran also asserted that it was Suhakam’s responsibility to speak up about all matters related to human rights.
‘Whythe delay?’
Police are investigating Firdaus for incitement
following a viral video in which he provided guidelines and
instructions on how to secretly convert a non-Muslim child to Islam.
Firdaus
is being probed under Section 505(c) of the Penal Code, which
stipulates that making statements with intent to incite or likely to
incite any class or community to commit any offence against another
class or community is punishable upon conviction with imprisonment for
up to two years, a fine, or both.
Firdaus Wong
Three
other parliamentarians - Che Mohamad Zulkifly Jusoh (PN-Besut), Tuan
Ibrahim Tuan Man (PN–Kubang Kerian) and Cha Kee Chin (Harapan–Rasah) –
concurred that Suhakam is unable to operate and function properly in the
absence of a chairperson.
Tuan Ibrahim pointed out that all
organisations require a leader and it’s high time for the government to
appoint an individual to lead the commission.
Cha questioned when
the appointment would be made since the position was left vacant for
almost 10 months after its previous chair Rahmat Mohamad voluntarily resigned effective Aug 31.
“Why
is there a delay? We want Suhakam to perform its functions properly,
where there is a chairperson and commissioners in the organisation
structure.
“We can’t possibly wait for a whole year to appoint (someone to the position,” the DAP lawmaker said.
Che
Mohamad said the failure to immediately appoint an individual to helm
the post can cause a delay in the commission’s decision-making process.
“I hope the appointment process will be expedited without outside interference,” he said.
Racism, abuse of power
Rahmat stepped down
from the Suhakam chairperson position a little over two months after
several allegations were made against him, ranging from racism to abuse
of power.
He also came under heavy scrutiny after he was accused of bypassing certain internal procedures.
Former Suhakam chief Rahmat Mohamad
The sources who spoke to Malaysiakini
then claimed that Rahmat appointed a special officer despite objections
from Suhakam’s senior management based on the individual’s appraisal
for a separate position within the commission.
However, Rahmat
refuted the allegation, claiming that all decisions were made with the
agreement of Suhakam commissioners and later communicated to the senior
management.
Rahmat’s move to appoint a special officer had come
into question as the role was not provided under Suhakam’s
organisational chart. - Malaysiakini, 27/6/2024
No to the
appointment of current Public Prosecutor as Federal Court Judge or Chief Judge
of Malaysia – Protect the Independence of Public Prosecutor and the Judiciary
Another removal of the Public Prosecutor/Attorney General?
It is best that Malaysia’s sitting Public Prosecutor/Attorney
General Ahmad Terrirudin Salleh is not appointed Federal Court Judge. It was
reported that he was ‘expected to be appointed as a Federal Court judge, with
the possibility of later assuming the role of Chief Judge of Malaya (CJM)…nomination
has been submitted by the Prime Minister’s Office for approval by the
Conference of Rulers…’(Malay Mail, 9/7/2024)
First, confirm whether the Judicial Appointments Commission (JAC)
recommended Ahmad Terrirudin Salleh to be appointed Federal Court Judge?
Was this part of first recommendation of the JAC, or was it
an additional recommendation following a ‘request for two more names to be
selected and recommended for his consideration with respect to any vacancy’
made by the Prime Minister pursuant to Section 27 of Judicial Appointments
Commission Act 2009?
Or, is the Prime Minister ignoring the recommendation of JAC
and forwarding his own name to the Conference of Rulers?
We have to recall that ‘Malaysia’s experience from such
events as the 1988 Judicial Crisis and the 2008 Royal Commission on the Video
Clip, has taught us that part of what ails our current system stems from (i) Executive
subjugation of the Judiciary; (ii) the pivotal role granted to the
Executive in relation to judicial appointments (iii) the lack of
transparency and accountability in the judicial appointments process and (iv)
there being too much power and discretion being placed in the hands of too few…’.
Hence, to preserve the independence of the judiciary, and
ensure that the executive, including the Prime Minister, has no more power to decide
on judge’s appointments and elevations. This struggle led to the formation of
the Judicial Appointments Commission (JAC)./
Judicial Appointments Commission Act 2009 fell short and is criticized,
amongst others, because it still retained the power with the Prime Minister. The
Prime Minister could still ignore the Judicial Appointments Commission’s recommendations.
What was needed was a Constitutional amendment, to say that
the King will act on the advice of an Independent Judicial Appointments
Commission, and no longer will the Prime Minister have the power to choose and
decide on judges.
Why Ahmad Terrirudin Salleh should not be appointed Federal
Court Judge?
He is the current Public Prosecutor/Attorney General, and he
should be so until his retirement, unless removed for some serious misconduct
or good reason. This security of tenure also ensures the INDEPENDENCE of the Public
Prosecutor/Attorney General. There are many other judges or qualified persons
in Malaysia that can be appointed Federal Court Judge and/or Chief Judge of
Malaya.
If he is suddenly appointed a Federal Court Judge, he will no
more be the Public Prosecutor/Attorney General.
Hence, is there a reason for the removal of this sitting Public
Prosecutor/Attorney General?
It was alleged that previous Public Prosecutor/Attorney
General Abdul Gani Patail has reportedly been replaced ahead of his retirement
date in October and amidst the ongoing special task force probe on 1MDB, which
he was involved in, where there was a risk that he may decide to prefer charges
against then sitting Prime Minister Najib Razak?
Could it be that Public Prosecutor/Attorney General Ahmad
Terrirudin Salleh may also be considering recharging Zahid Hamidi using Section
254A of the Criminal Procedure Code, states, amongst others, that ‘…where an
accused has been given a discharge by the Court and he is recharged for the
same offence, his trial shall be reinstated and be continued as if there had
been no such order given? Could he be
considering commencing prosecution against some others?
Zahid Hamidi – Decision whether he will be
RE-charged outstanding
We recall that former Attorney General and Public Prosecutor
Tan Sri Idrus Harun decided to questionable discontinuation of Deputy Prime
Minister Zahid Hamidi, criminal case after prosecution had proven a prima facie
case on all 47 charges, whereby this decision was delivered on 4/9/2023, one
day before his last day in office.
One of the possibly acceptable reasons was that there is ‘a
need for further investigation by the Malaysian Anti-Corruption Commission
(“MACC”)’ based on matters raised in the letters of representations submitted
by Zahid. The Deputy Prime Minister was then given a Discharge Not Amounting to
An Acquittal (DNAA).
Ahmad Terrirudin Salleh was then appointed as Attorney
General/ Public Prosecutor on 6/9/2023, and according to law, he had the power to reinstate the
trial after discharge.
Many have been waiting for the completion of the MACC
investigations, and for the decision of Attorney General/ Public Prosecutor Ahmad
Terrirudin whether to recharge Zahid Hamidi on all 47 charges, or some of them,
or not. People are waiting also for the reasons of Ahmad Terrirudin, being Attorney
General/ Public Prosecutor for whatever decisions made.
Being the new Attorney General/ Public Prosecutor, he had the
power to review the decision of his predecessor, Idrus Harun, and indicate whether
he agrees or not.
Whether Zahid Hamidi is guilty or not should be up to the
Court to decide. In this case, prosecution had already managed to overcome
the biggest hurdle, in proving a prima facie case not for some charges, but
all 47 charges. This means that if Zahid Hamidi, during his Defense stage fails
to raise reasonable doubt, he will be convicted and sentenced. Any ‘new
evidence’ that Zahid may have, he can submit to court and let the court decide.
The discontinuation of the case ROBS the Court of its jurisdiction/power in
this criminal trial.
Attorney General/ Public Prosecutor Ahmad Terrirudin maybe now
of the position that it be BEST that the Court decides – so, he may tender all ‘new
evidence’ to court to let the court decide. He may not want to DENY the Court
the power to decide on guilt or innocence.
One wonders whether it is this worry about what the current Attorney
General/ Public Prosecutor Ahmad Terrirudin may do or not do, be it with Zahid
Hamidi’s case or maybe the commencement of prosecution against others, is a
consideration of why he should speedily be removed as Attorney General/ Public
Prosecutor, and maybe made a Federal Court Judge?
Post-Retirement Conduct and Perception of
Independence Whilst in Office
Former attorney general Tan Sri ldrus Harun, after
discontinuing the case against Zahid Hamidi, has been appointed on 10/10/2023
as chairman of Amanah Raya Bhd (AmanahRaya) trustee company owned by the
Minister of Finance Incorporated ("MOF Inc."), whereby the Minister
of Finance is Prime Minister Anwar Ibrahim.
Was the appointment of Idrus Harun could raise the question
of whether this was a ‘thank you’ gift from Prime Minister Anwar?
Maybe, this appointment has no connection with what he did in
Zahid Hamidi’s case, but the primary concern here is public perception.
Independence of the Judiciary and the Public
Prosecutor
For the preservation of the independence of the Judiciary,
and also the Public Prosecutor their security of tenure until retirement age
must be respected. No judge or the Public Prosecutor should be removed
prematurely, even for reasons like appointment as Judges or Public Prosecutor.
They can and should only be removed for dereliction of duty by a fair and just
mechanism for the removal of Judges and/or Public Prosecutor.
MADPET (Malaysians Against Death Penalty and Torture) also believe
it is best that former judges, former Public Prosecutors and senior Public
Officers are not also appointed to any position post-retirement by government,
government linked entities or even corporate sector to preserve the public
perception that they were truly independent, dispelling the possibility of ‘corruption’
or abuse of power whilst in office. A ‘cooling off’ period should be mandatory
as part of their condition of appointment as judges, public prosecutors and
senior officers in law enforcement and public bodies.
MADPET calls for a Constitution Amendment that removes the
role of the Prime Minister or the Executive branch of government in the
appointment of Judges and also the Public Prosecutor. The independent Judicial
Appointments Commission (JAC) should advice the King on judicial appointments.
In the interim, the Prime Minister must follow the JAC’s recommendation with
regard the appointment of Judges, including the Chief Judge of Malaya.
MADPET calls for the respect and safeguarding of the
independence of the Judiciary, and also the Public Prosecutor.
Charles Hector
For
and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
The removal of Gani, who had been
leading a multi-agency investigation on corruption allegations involving
1 Malaysia Development Berhad (1MDB) and Prime Minister Datuk Seri
Najib Razak, happened on the same day as Najib’s announcement of a
Cabinet reshuffle that saw other 1MDB critics dropped from government,
notably his deputy Tan Sri Muhyiddin Yassin and Umno vice-president
Datuk Seri Shafie Apdal. - Malay Mail, 29/7/2015
Report: AG Ahmad Terrirudin poised for promotion to Federal Court, potential candidate for Chief Judge of Malaya
Attorney
General Datuk Ahmad Terrirudin Salleh is pictured during the Opening of
the Legal Year 2024 at Putrajaya International Convention Centre.
January 15, 2024. — Picture by Shafwan Zaidon
By Malay Mail
Tuesday, 09 Jul 2024 10:02 AM MYT
KUALA
LUMPUR, July 9 – Attorney General (AG) Datuk Ahmad Terrirudin Salleh is
reportedly expected to be appointed as a Federal Court judge, with the
possibility of later assuming the role of Chief Judge of Malaya (CJM).
Free
Malaysia Today reported citing a source that Terrirudin’s nomination
has been submitted by the Prime Minister’s Office for approval by the
Conference of Rulers, which will convene next week.
“He
is likely to be appointed a Federal Court judge first, with the CJM
appointment anticipated by the end of September, adhering to
constitutional requirements,” said the anonymous source cited by the
news portal.
The report also claimed that there is also a
possibility that Terrirudin may be made a judge of the apex court while
leaving the CJM position — the third-highest position in Malaysia's
judiciary — temporarily vacant.
The source however did not explain the reasoning behind this potential move.
Currently, Court of Appeal president Tan Sri Abang Iskandar Abang Hashim is performing the duties of CJM on an interim basis.
The CJM post became vacant following the mandatory retirement of Justice Tan Sri Mohamad Zabidin Mohd Diah on February 29.
Advertisement
Terrirudin was formerly the solicitor general before being appointed the AG on September 6 last year.
He had replaced his predecessor Tan Sri Idrus Harun whose contract ended on September 5. - Malay Mail, 10/7/2024
Press Release | The Attorney General’s Chambers’
Media Statement Fails to Provide Justifiable Reasons to the Public on
the Withdrawal of the 47 Charges against Zahid Hamidi7 Sep 2023 10:30 pm
The
Malaysian Bar is perturbed over the recent withdrawal by Deputy Public
Prosecutor (“DPP”) Datuk Mohd Dusuki Mokhtar of all 47 charges faced by
Deputy Prime Minister, Dato’ Seri Ahmad Zahid Hamidi (“Zahid Hamidi”),
upon receiving instructions from then-Attorney General (“AG”), Tan Sri
Idrus Harun (“Idrus Harun”), pursuant to Article 145(3) of the Federal
Constitution and section 254(1) of the Criminal Procedure Code. The DPP
pointed towards representations made by the defence in December 2022,
alluding that there is a need for further investigation by the Malaysian
Anti-Corruption Commission (“MACC”).1,2
The Malaysian Bar notes that the first
letter of representation sent in by the defence was dated 8 December
2022 and took place more than three years after the case first commenced
in the High Court. In addition, this representation letter was
presented after the 15th General Election (“GE15”), after the
appointment of the Prime Minister on 24 November 2022 and after the
complete list of Malaysian Cabinet members was released on 2 December
2022.
It is further observed that on 8 August
2023 — less than a month ago — previous lead DPP Datuk Raja Rozela Raja
Toran (“previous lead DPP”) was reported to have requested for an early
retirement since 3 April 2023, and therefore, could no longer lead the
prosecution for Zahid Hamidi’s trial.3 Idrus Harun was
reported to have said at that juncture that the previous lead DPP would
be on leave prior to her retirement starting from 30 August
2023. To further put it in context, it is also known that the current
Chief Commissioner of MACC’s tenure was extended for another year on 10
May 2023,4 whereas Idrus Harun’s tenure was also extended for another six months from 6 March 2023.5 These dates, development of events, and actors in play, fuel much of the uproar by the public.
What is unpalatable is that Zahid Hamidi’s
trial for the 47 charges commenced on 18 November 2019, and about 77
days of trial have elapsed. After 99 prosecution witnesses testified in
the trial, the High Court on 24 January 2022 ordered Zahid Hamidi to
enter defence on all 47 charges. This essentially means that the High
Court had found that a prima facie case has been established by
the prosecution, thereby necessitating Zahid Hamidi to enter his
defence. This case was at the stage of defence with Zahid Hamidi’s 15th
witness giving evidence, when the prosecution applied for a “discharge
not amounting to an acquittal” (“DNAA”) on 4 September 2023.
The Malaysian Bar asserts that the
Attorney General’s Chambers (“AGC”) has tarnished its own reputation and
credibility as the prosecuting party and that of the MACC as the
investigating body, when it applied for a DNAA at such a late juncture
after a prima facie has already been established by the previous lead DPP.
The recent media statement issued by the AGC dated 5 September 2023 (“Media Statement”)6
was completely devoid of proper justifications as regards why it had
requested for a DNAA. With the DNAA granted by the High Court, Zahid
Hamidi’s counsel seized the opportunity to push for an outright
acquittal instead of a DNAA. Let us be clear and make no mistake about
it: the learned High Court Judge had no alternative but to decide on
either a DNAA7 or an acquittal. It therefore rings hollow
for the AGC to wholly attribute the withdrawal of the case to the High
Court and use that as a reason in the Media Statement, instead of
providing a detailed explanation.
The High Court Judge in this case had
lamented that should the prosecution decide in the near future to not
proceed with any further charges, then much precious judicial time would
have been wasted and a great amount of taxpayers’ money would also have
been wasted. On this note, the Malaysian Bar stresses that the AG must
take responsibility and be accountable to the citizens of the country;
and should the prosecution decide in the near future to proceed with any
further charges, then it should avail itself of the process of
“reinstatement of trial after discharge” under section 254A of the
Criminal Procedure Code, under which Zahid Hamidi’s trial shall be
reinstated and continued as if no such DNAA order had been given.
In the recent past, there have been cases
where criminal charges against certain politicians were dropped by the
AGC amidst trial, reportedly following “instructions”,8 or as a result of representations.9,10
These cases are classified as “high-profile cases” as they hold
national and public interests primarily due to the substantial sums of
money allegedly misappropriated by those individuals in positions of
power and authority.
Just to add for good measure, the
Malaysian Bar expects that good sense and justice will prevail, and that
this unhealthy trend will not continue unabated — especially in the
light of the ongoing 1MDB case, the ongoing trial which former Prime
Minister Dato’ Sri Najib Razak is facing,11 and his wife
Datin Seri Rosmah Mansor’s second corruption case where she is facing 12
money laundering charges and five counts of failure to declare her
income to the Inland Revenue Board.12
What is abundantly clear to the Malaysian
Bar — which has consistently pressured the government of the day — is
that there must be real political will to carry out a complete revamp of
the structure within the AGC where the roles of the AG and the Public
Prosecutor must be separated to create true independence in the exercise
of prosecutorial powers vested with the Public Prosecutor, free from
any influence of the Executive. The AG can take its advisory role to
the government, but the Public Prosecutor acts as the guardian of public
interest and must fulfil its functions and duties entrusted with utmost
integrity, free from political influence and bias, to maintain public
confidence in the Malaysian criminal justice system.
The Malaysian Bar notes that the current Government of the day had, recently in August 2023,13
announced that it will undertake a comprehensive empirical study within
a year before finalising the proposed separation of the AG’s Office
from the Public Prosecutor’s Office. The Zahid Hamidi’s case has shown
all of us that it is increasingly urgent that pivotal changes must take
place by 2024 so that our criminal justice system is strengthened to
remove prospects and/or appearance of bias in the way politicians are
being charged, and in the way charges against them are being withdrawn.
“The
reasons given by the learned DPP, including that of the setting up of
the RCI [...] does not in any manner suggest that as far as the charges
involved in this case [is concerned], that this is the end of the
matter.” — High Court Justice Datuk Collin Lawrence Sequerah
KUALA
LUMPUR (Sept 4): The prosecution on Monday decided to withdraw all 47
charges of criminal breach of trust, graft, and money laundering faced
by Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi, after
applying to discharge all the charges.
The High
Court judge in the Yayasan Akalbudi trial, Datuk Collin Lawrence
Sequerah, upheld the prosecution’s application for a discharge not
amounting to acquittal (DNAA) for Zahid, as opposed to the defence’s
request for a full acquittal.
A DNAA means an accused person can face trial for the same charges in the future, if the prosecution decides to reinstate them.
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The
decision ended a trial which had spanned three years and ten months
involving 99 witnesses, and which had established a prima facie case
with Zahid having entered his defence.
At the
start of the trial on Monday, deputy public prosecutor (DPP) Datuk Mohd
Dusuki Mokhtar told the judge that he had instructions from Attorney
General Tan Sri Idrus Harun to discontinue the charges against Zahid.
Mohd
Dusuki told the judge that the case should be classified as DNAA as the
Malaysian Anti-Corruption Commission (MACC) is still investigating the
charges, after Zahid had sent letters of representation to both the AG
and the MACC earlier this year.
However,
Zahid’s lawyer Datuk Hisyam Teh Poh Teik had asked the judge to consider
a full acquittal instead, as the prosecution did not give a timeline to
complete its investigations.
Sequerah
asked the court to stand down while he deliberated on the matter and
came back a few moments later to quash the defence's application and
uphold the DNAA sought by the prosecution.
In
reading out his decision, Sequerah said the prosecution had intimated
that while it has sought a DNAA, investigations against Zahid are still
ongoing.
“It is
clear from the reasons given by prosecution that investigations are
still ongoing as a result of representations made by the defence.
However, it must be borne in mind that it was intimated to the court on a
previous occasion, when an adjournment was sought for by the defence,
that these representations took up several pages, I think it ran into
hundreds of pages, if memory serves me correctly,” the judge said.
“It is
therefore justified that the prosecution needs more time to examine
these representations, which also involves taking statements from
various individuals,” Sequerah added.
Sequerah
also said the prosecution had asked for the DNAA based on a Royal
Commission of Inquiry (RCI) on former AG Tan Sri Tommy Thomas’
controversial memoir. According to the prosecution, there is a need to
investigate Thomas’ memoir, which is relevant to Zahid’s charges.
The judge said that just because the DNAA is granted, this does not mean that it is the end of the matter.
“The
reasons given by the learned DPP, including that of the setting up of
the RCI although they do not have a timeline, does not in any manner
suggest that as far as the charges involved in this case [is concerned],
that this is the end of the matter,” he said.
Sequerah
further said the trial commenced on Nov 18, 2019 and to date, some 77
days of trial has elapsed. He also added the case was at the defence
stage with Zahid’s 15th witness giving evidence.
“The
prosecution have in my considered view, given considered reasons why
they seek a DNAA in this case,” Sequerah said before granting the DNAA.
Zahid,
who is Bagan Datuk Member of Parliament, was ordered by Sequerah to
enter his defence in respect of all 47 corruption charges in relation to
Yayasan Akalbudi last year.
Twelve of them are criminal breach of trust charges, followed by eight for graft, and 27 for money laundering.
In
October last year, Zahid was acquitted of a separate set of 40 graft
charges in relation with an award of a contract for a foreign visa
system (VLN) and one-stop services (OSC) in China when he was home
minister.
At the
time, the High Court judge Datuk Mohd Yazid Mustafa found that the
prosecution had not made out a prima facie case as it had failed to
prove the element of graft.
Zahid has
since sent letters of representation to the Attorney General’s Chambers
with regard to the prosecution’s appeal over the VLN case. - Edge , 4/9/2023
Former AG Idrus Harun appointed as Amanah Raya chairman
Former
attorney general Tan Sri ldrus Harun has been appointed as the new
chairman of Amanah Raya Bhd (AmanahRaya) effective from Oct 10.
KUALA
LUMPUR: Former attorney general Tan Sri ldrus Harun has been appointed
as the new chairman of Amanah Raya Bhd (AmanahRaya) effective from Oct
10.
Prior to his appointment, Idrus served as a deputy public prosecutor
under several departments such as the Royal Customs & Excise
Department and Prosecution Division of Attorney General's Chambers
Malaysia.
He had also served as the Terengganu state legal advisor, senior
federal counsel of the Election Commission of Malaysia and Malaysian
Anti-Corruption Commission, as well as a parliamentary draftsman.
Idrus was previously appointed as the solicitor general in April 2006 and later as the court of appeal judge in September 2014.
He was subsequently appointed as the federal court judge in November
2018 prior to his appointment as the AG of Malaysia from March 2020 up
to his retirement in September 2023.
With his wealth of experience and judicial excellence,
AmanahRaya is confident that Idrus will continue to propel the company
to greater heights. - NST,10/10/2023?
Gani tightlipped if removal linked to task force
Kow Gah Chie
Published: Jul 28, 2015 11:49 AM
Abdul Gani Patail's service as the attorney-general ended yesterday, after holding the post for 11 years.
Contacted by
Malaysiakini
, Gani, who is reportedly in the dark over this development, refused to speculate on his removal.
"I don't want to say a word," he said.
Asked if this was related to the special task force probing 1MDB, Gani
replied: "Never mind. I don't want to say a word. Nanti saya cakap ni
banyaklah."
It is unclear if Gani (
photo
) meant that he would elaborate on the matter later when he remarked, "nanti saya cakap in banyaklah."
This morning, chief secretary to the government Ali Hamsa released a
statement announcing that Gani had health problems and would be replaced
by former Federal Court judge Mohamed Apandi Ali.
"The Yang di-Pertuan Agong, on advice from the prime minister, has
consented to Apandi's appointment as the attorney-general, effective
July 27.
"Gani will continue serving the country as a judicial and legal service
officer until he undergoes mandatory retirement on Oct 6, 2015," Ali
added.
Ali's statement did not say if either Gani or Apandi would now head the 1MDB task force.
Constitution states removal must be done by tribunal
A check by
Malaysiakini
showed that the Federal Constitution stipulates that the person holding
the position of AG can only be removed via a tribunal appointed by the
Yang di-Pertuan Agong.
Article 145 (6) states: 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.
In relation to the removal of a Federal Court judge, Article 125 (3)
states: If the Prime Minister, or the Chief Justice after consulting the
Prime Minister, represents to the Yang di-Pertuan Agong that a judge of
the Federal Court ought to be removed on the ground of any breach of
any provision of the code of ethics prescribed under Clause (3b) or on
the ground of inability, from infirmity of body or mind or any other
cause, properly to discharge the functions of his office, the Yang
di-Pertuan Agong shall appoint a tribunal in accordance with Clause (4)
and refer the representation to it; and may on the recommendation of the
tribunal remove the judge from office.- Malaysiakini, 28/7/2015
Gani Patail’s termination according to law, new AG says
Tan
Sri Abdul Gani Patail’s termination as Attorney-General was in line
with the Federal Constitution, his successor said. — File pic
Wednesday, 29 Jul 2015 5:51 PM MYT
KUALA LUMPUR, July 29 — Tan Sri Abdul Gani Patail’s termination as
Attorney-General (AG) was in line with the Federal Constitution, his
successor Tan Sri Mohamed Apandi Ali said today after the Malaysian Bar
criticised Gani’s removal as unconstitutional.
Apandi also said
that his predecessor’s rank was not reduced in any way and cited several
provisions from the Federal Constitution to support the government
decision for a replacement.
“Clause (6) of Article 145 of the Federal Constitution does not apply
as it is a savings provision which only applied to the incumbent
Attorney-General at the material time when the amended Article 145 came
into force,” the former Federal Court judge said in a statement.
“This is clearly stated in Clause (6) of Article 145. The Attorney
General at the time was Cecil M. Sheridan who served as Attorney General
from 1959 to 1963,” he added.
Article 145(6) reads in full: “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”.
Apandi noted that Article 145(5) states that the AG holds office during the pleasure of the Yang di-Pertuan Agong.
“Hence the mode of removal referred to in Clause (6) of Article 145 of
the Federal Constitution is not applicable to Attorneys General
appointed after 16 September 1963,” he said.
Apandi also insisted that Gani’s removal, which was announced
yesterday, did not violate Article 135 of the Federal Constitution on
restrictions on dismissal and reduction in rank of public servants,
after the Malaysian Bar said that the termination appeared to contravene
Article 135(5) that mandates reasonable opportunity to be heard.
“This is because Clause (4)(b) of Article 132 of the Federal
Constitution expressly provides that Part X of the Federal Constitution,
which includes Article 135, does not apply to the office of the
Attorney General. In any case, Tan Sri Abdul Gani Patail has neither
been dismissed from nor reduced in rank in the Judicial and Legal
Service,” he said.
The Chief Secretary to the Government
announced yesterday that Gani was terminated as AG effective July 27 due
to health reasons, but he will continue to serve as a judicial and
legal services officer until October 6 this year, when he reaches his
compulsory retirement age.
The removal of Gani, who had been
leading a multi-agency investigation on corruption allegations involving
1 Malaysia Development Berhad (1MDB) and Prime Minister Datuk Seri
Najib Razak, happened on the same day as Najib’s announcement of a
Cabinet reshuffle that saw other 1MDB critics dropped from government,
notably his deputy Tan Sri Muhyiddin Yassin and Umno vice-president
Datuk Seri Shafie Apdal. - Malay Mail, 29/7/2015
.jpg)
The
Malaysian Bar is perturbed over the recent withdrawal by Deputy Public
Prosecutor (“DPP”) Datuk Mohd Dusuki Mokhtar of all 47 charges faced by
Deputy Prime Minister, Dato’ Seri Ahmad Zahid Hamidi (“Zahid Hamidi”),
upon receiving instructions from then-Attorney General (“AG”), Tan Sri
Idrus Harun (“Idrus Harun”), pursuant to Article 145(3) of the Federal
Constitution and section 254(1) of the Criminal Procedure Code. The DPP
pointed towards representations made by the defence in December 2022,
