Friday, 29 January 2016

Biar orang yang bijaksana berbicara

Biar orang yg bijaksana berbicara:

YAYASAN 1Malaysia (Y1M) supports wholeheartedly the decision of the Malaysian Anti-Corruption Commission (MACC) to refer the attorney-general's directive to close three investigative files involving Prime Minister Datuk Seri Najib Abdul Razak to its Operational Evaluation Panel (PPO). It is within the PPO's ambit of authority to evaluate the AG's decision.

There are at least seven reasons why the PPO should undertake this task.

ONE, there are contradictory views on the authenticity of the donation allegedly made by the late Saudi ruler, King Abdullah, to Najib in March-April 2013. According to the BBC, an unnamed Saudi source has confirmed the deposition of US$681 million from the Saudi monarch into Najib's personal account.

A report in the Wall Street Journal however has cast doubts on the claim. It says that "A Saudi government official while declining to comment specifically on the prosecutor's statement said that the Saudi ministries of foreign affairs and finance had no information about such a gift and that a royal donation to the personal bank account of a foreign leader would be unprecedented". The truth about the donation should be established once and for all.

TWO, if it is true, as suggested by the BBC story that the donation was to help Najib and the Barisan Nasional to win the 13th General Election in May 2013, it raises a serious ethical question.

How can the leader of a foreign nation – which incidentally does not hold elections – seek to determine the outcome of an election in our country through the use of money?

Wouldn't that be a violation of election rules? Would that be a corrupt act implicating both the giver and the recipient?

How would we have reacted if it was known that the president of Indonesia or the prime minister of Singapore had through secret donations, attempted to determine election results in Malaysia?

THREE, if a small portion – US$61 million – of the donation was used for various purposes, who were the beneficiaries? Presumably, the BN election machinery was one of them.

Was there a proper accounting of electoral expenditure, as required by electoral law? Since it is the prime minister of a nation that claims to practise accountability that was the recipient of the donation, shouldn't there be a proper explanation of how the money was spent?

FOUR, since the AG claims that US$620 million was returned to the sender in August 2013, one wonders why when it became public knowledge that there was a huge sum of money in the prime minister's personal bank account in July 2015, there was no attempt by Najib or anyone around him to inform the people that most of the money had been returned to the sender? It would have been in Najib's interest to do so which is why his silence for the last six months is puzzling.

FIVE, if it is true that US$620 million was returned to the Saudi monarch in August 2013, was Bank Negara aware of it? When such a huge sum of money exits our banking system, wouldn't it have alerted our central bank? What was Bank Negara's response?

SIX, there is also the allegation that the money that was purportedly returned was actually kept frozen in a Singapore bank account. Was it unfrozen and sent back to the Saudi ruler? What is the role of the Singapore authorities in all this?

SEVEN, the AG in his statement failed to address yet another similar issue. It is alleged that the money that actually flowed into Najib's account was through an anonymous British Virgin Islands company and a Swiss private bank owned by an Abu Dhabi sovereign wealth fund. Is this true? The people have a right to know.

It is because the questions which trouble Malaysians about the money in the prime minister's bank account are so fundamental that an evaluation by the PPO of the attorney-general's decision is so important. If these questions are answered in an honest and truthful manner, public trust in the prime minister and the government would be restored to a considerable extent.

Honest answers would also convince Malaysians and the world that the Najib government is sincere about upholding integrity. We have seen how in the Berlin based Corruption Perception Index (CPI) for 2015 announced on Jan 27, 2016, Malaysia's ranking has dropped from 50 to 54 out of 168 countries. Controversies related to the prime minister have been cited as among the reasons.

This is why it is in the interest of all Malaysians to support a thorough evaluation of the AG's decision. It is wrong to argue that his decision is beyond scrutiny. In a democracy that values good governance, the decisions and actions of an officer of the state entrusted with the protection of the rule of law and the preservation of justice should never be shielded from evaluation and appraisal by the citizenry.

Dr Chandra Muzaffar
Board of Trustees
Yayasan 1Malaysia

Read in full here.

and another one from TMI:


The controversy continues unabated. It is about the attorney-general’s directive to the Malaysian Anti-Corruption Commission (MACC) to close investigations into the 1Malaysia Devleopment Berhad (1MDB) affair.

Perhaps adding fuel to the fire is the rather abrupt “retirement” of former attorney-general Tan Sri Gani Patail on health grounds while these investigations were initially proceeding (he has since gone on to work for a law firm); and his replacement with the present A-G.

The latest volley in the barrage of citizens’ demand for reasons and accountability for the decision was carried in the Sun by Yayasan 1Malaysia Chairman Dr Chandra Muzaffar, “7 reasons to evaluate AG’s decision” on January 29, 2016.

‘That is why it is in the interest of all Malaysians to support a thorough evaluation of the AG’s decision. It is wrong to argue that his decision is beyond scrutiny.”

That is the question – is his decision beyond scrutiny?

The simple answer is no. The power given to him by the Federal Constitution to institute any proceedings for an offence is “exercisable at his discretion”. This power is not absolute.

As long ago as 1979, the then chief justice, Sultan Azlan Shah declared in a landmark case that it is wrong to speak of absolute discretion. This is what he said in his usual pithy style:

“Unfettered discretion is a contradiction in terms. Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably.

“In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene.”

His Lordship was speaking of the discretion exercised by a land office.

Is it any different with the discretion exercised by the high constitutional office of an A-G?

Well it could be said there is a greater need for this to apply to the A-G’s exercise of discretion. Because outside of his constitutionally prescribed duties, the AG is the guardian of the public interest, a right conferred on him under the common law, which is made applicable by Article 160 of the constitution.

Indeed then Lord President Tun Mohamed Suffian Hashim countenanced a remedy against the decision of an A-G not to prosecute – although he said “but not in the courts”.

The Privy Council, the then highest court for Malaysia, alluded to the many factors which a prosecuting authority may properly take into account in exercising its discretion whether to charge a person at all.

It remarked that this “should not be dictated by some irrelevant consideration”.

To summarise: the A-G’s discretion not to prosecute (or any other power that he is entitled to exercise) is not without limits. It cannot be exercised for an improper purpose and unreasonably; or on the basis of an irrelevant or wrong consideration.

If it is so exercised then it could be subject to challenge through the courts.

In fairness to the A-G, he has invited anyone unhappy with his decision to have the limits of his powers determined by the Federal Court.

For this to be properly determined the A-G should give his reasons. Only then can the court properly evaluate the legal propriety of his decision.

In a landmark English case routinely cited in our courts, the House of Lords said that the minister may have good reasons for refusing an investigation.

In this present case, the A-G directed that investigations be stopped although the MACC had asked him to initiate the process for witnesses to be examined.

There was then a duty to give the reasons for the court’s examination. Else it could be assumed there were no good reasons.

Indeed in another English case it was pointed out that if all prima facie reasons point towards one course of action and the minister takes another without giving a reason, the court may infer he has no good reason for the decision and is using his discretion for an improper purpose.

Admittedly these cases involve the exercise of power by a minister in the exercise of administrative functions – as distinct from constitutional powers.

But surely it cannot be denied that public confidence in a prosecutor’s work is the cornerstone of a proper, efficient and fair administration of the justice system. so these decisions should apply with equal – if not more – force to the A-G’s powers.

Finally, let’s take a page from the Trans-Pacific Partnership Agreement (TPPA) which the government is eager to sign and ratify.

It requires each party to adopt or maintain “measures to promote transparency in the behaviour of public officials in the exercise of public functions”.

Although this provision relates only to international trade and investment matters, should not this be extended to matters over which there seems to be so much disquiet, if not outrage, among the citizenry. – January 29, 2016.

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