IF you still don't get it, get the Here out of Hell! Hey, I am jesting hear OK -- to lift myself out of the depths of sadness. Which is endurable with passing time. That must also explain WHY I DID NOT WISH MY CHINESE readers worldwide Happy New Year. Cos there is nothin' to be happy about in Malaysia.
It has all to do with TWO GIGANTIC CASES INVOLVING TRAVESTIES OF JUSTICE -- one involving the case of foreign national the late Mongolian beauty Altantuya Sharriibuu, and the other more damaging to our beloved country involving DS ANWAR IBRAHIM -- The Prme Minister-in-waiting who is the only politician the desperadoes in UMNO fear the most and would sparee no efforts in keeping him shut up!! --hence the continued demonisation of MP for Permatang Pauh and Opposition Leader and his beloved family. -- SECOND TIME AROUND on trumped up Sodomy charges.
Let me quote a poem from my Little Blak Booki "Midnight Voices and Other Poems" which I self-publ;ished in 2007, sold at cover price of RM15, but now a collectible item worth RM15X100; you wanna get my sole Reference Copy?
From page 117, I reproduce part of the pome for thee because I pamper my ER~:)~~
It Gets Curiouser and Curiouser
When I was young I was told
Spinning a story you must be bold
But it still must have a beginning
And an ending, and somethin’ in between
But lately my motherland
Gave birth to very strange events
The cycle was like a record
Being played out from the end
Remember Michael Jackson’s video clip
When uprooted trees regained their standing stature
Dried up safari land became green pastures
And elephant carcasses stood majestically alive again
It gets curiouser and curiouser
As was observed in Alice in Wonderland
And events in Malaysia the past decade
Closely mirror Lewis Carroll’s rich imaginings
The story purportedly started in September 1998
As many Anwarists would want you to believe
That Reformasi was galvanized
When the deputy PM was excised from the head
But my friends, be reminded
It was way back on a May Day in ‘88
When the court sat on a holy day
A panel of junior judges sacked their chiefSalleh Abas Lord President was dismissed in a jiffy
But then DPM Anwar Ibrahim held his tongue
A decade later with one fell swoop
Anwar became a lauded victim in the vicious loop
Reformasi Anwar started, his loyalists proclaim
They forgot Salleh and his Brave Ones
Who stood their ground for justice
They indeed were the unheralded Originals
Reformation is not only taking to the streets
It’s changing of the mindset
What became of the Judiciary following Salleh?
It was downhill all the way…
It led the country’s leading judicious mind
The late Tun Suffian Hashim to lament in 2000:
“I wouldn’t like to be tried by today’s judges,
Especially if I am innocent.”*******
*******Quoted from a speech on March 10, 2000 that the former Lord President delivered at a Bar commemoration for the late Justice Tan Sri Wan Sulaiman.
__________________________________________
DESI would like to highlight the following last stanza-- especially7-starred two closing lines!; dear ER, please ruminate on it and tell me its RELEVANCE? First 10 ER who answer via Comments may be rewarded with a photostat copy of the said book Midnight Voices, K!
What became of the Judiciary following Salleh?
It was downhill all the way…
It led the country’s leading judicious mind
The late Tun Suffian Hashim to lament in 2000:
“I wouldn’t like to be tried by today’s judges,
Especially if I am innocent.”*******
Today I also sighted the best write-up todate on the issue of DS Anwar's family members filing an appeal to the Yang diPertuan Agong for a royal pardon -- from the SUN,PAGE 10, MARCH 2, 2015, "LAW SPEAK" column, by GURDIAL SINGH NIJAR:
Law Speak - The royal pardon
Posted on 1 March 2015 - 08:18pm
RECENT events have propelled into the public domain
the topic of the pardon for a criminal conviction. Several questions
have emerged: Who exercises this power? How is it exercised? Who can ask
for a pardon? When can it be sought? Does an application imply guilt?
Can the decision to grant or reject be challenged? What is the effect of
a pardon?
This article seeks to look at the applicable law and, where known, the practice in relation to pardons.
Who is given the power?
The power to grant a pardon is given explicitly by the Federal Constitution to the King – for offences committed in the Federal Territory; and to the ruler or governor of a state if the offence is committed in a state.
It is an exercise of executive power – as contrasted with the judicial functions of the courts or legislative functions of Parliament. Although executive power is vested under our constitution in the King, he is required to act on advice – either of the Cabinet or any other designated body.
The constitution has also established a Pardons Board for each of the states as well as one for all the Federal Territories. It comprises the attorney-general (or his representative), the Federal Territories minister and three other members to be appointed by the King. The King presides over the board. The board must consider the written opinion of the attorney-general before giving its decision.
The appointment of a cabinet minister seems to be at odds with the spirit of a constitutional provision which states that Parliament may make a law requiring the King to act after consultation with, or on the recommendation of, any person or body of persons other than the Cabinet – although no law has been enacted. The spirit of this provision implies that the Cabinet (which must necessarily include any cabinet member) must not be in any advisory body.
Courts often look not only at the letter of the law but, as well, its spirit to determine its reach.
In summary, the King decides whether or not to grant a pardon. He must seek the advice of the Pardons Board. Further, it is questionable whether a cabinet minister should be in the board.
Must the King act in accordance with the advice?
Does the King act in his own discretion; or must he follow the advice given by the Pardons Board?
Pre-1994 court decisions declared that it was the King's personal discretion to decide on the grant or refusal of a pardon. A 1974 Supreme Court decision declared: "Clearly the Yang di-Pertuan Agong himself exercised the power."
However, in 1994, the constitution was amended, following upon an intense contest between the rulers and the executive under Prime Minister Tun Dr Mahathir Mohamad. The power of the King to act on his own was dramatically curtailed – except in a very limited number of prescribed situations.
A new provision was added: whenever the King exercises his functions under the constitution or any federal law where he is required to act "in accordance with advice, on advice, or after considering advice", then he must accept and act in accordance with such advice: Article 40(1A).
This implies that after the amendment, the advice of the Pardons Board must be accepted and acted upon. However the relevant Article 42 – which deals with pardons – was not amended to reflect this change. And court decisions since the amendment seem to reflect the same position as before the amendment. As late as 2002, a full five-judge panel of the Federal Court approved the pre-amendment principle (cited above); as did a recent 2011 High Court case.
So although the legal position – on a straight reading of the constitutional provisions – is that the King does not act in his personal discretion, case law supports the proposition that the King has the personal discretion to decide whether or not to grant the pardon. Further, he is not bound to act on the "advice" given by the Pardons Board.
The process
There are no rules governing the process. It is not stated who should be the applicant. Nor is the form of the petition prescribed. Also, there is neither a time limit for submitting the petition; nor for the King to decide. The considerations that the King must take into account are also not stated.
This is left to be inferred from matters relevant to the grant of "mercy". The Supreme Court merely states that each case is to be decided on its own merits. The King can take into consideration matters which courts, bound by the law of evidence, cannot take into account; and he can consider public policy.
Admission of guilt?
The person convicted of a crime is appealing to the King to grant him a reprieve from the sentence. Generally and quite logically this would connote an admission of guilt.
Most cases where a pardon is sought fall in this category. Mokhtar Hashim's death sentence was commuted. A 14-year-old boy sentenced to death was instead sent to a school for delinquent juveniles. The jail sentence of Harun Idris, one-time mentri besar of Selangor, was reduced.
What if the petition for pardon is made on the basis that there has been a miscarriage of justice and that the convict is innocent? Can a pardon be given where guilt is not admitted?
There is nothing in law to say that a pardon cannot be made on this basis; or that a pardon cannot be given taking this "innocence" into account. Of course, it may be a lot harder to get a pardon on this basis. But there is no legal constraint.
The King must act "with the greatest conscience and care and without fear of influence from any quarter" – as the higher courts have repeatedly affirmed. So he can decide on the basis of the grounds of innocence set out in a petition. The King is not obliged to give any reasons for his decision; nor are reasons normally provided when the pardon is granted.
This suggests that there is no limit to the situations when a pardon can be granted on the basis of mercy.
Further, as the courts have repeatedly declared, the King does not sit as a court. He is entitled to take into consideration matters which courts cannot take into account. He can decide on his view of public policy.
So legally speaking, it is open for the petition to be considered on the grounds it refers to, including assertions of innocence and miscarriage of justice.
In these circumstances a particular petition presented on these grounds does not necessarily imply an admission of guilt.
Can it be challenged?
Whatever decision the King makes cannot be challenged in a court of law. The courts have consistently ruled that the discretion exercised is not justiciable. Nor can anything indirectly related to it be challenged – such as a delay in coming to a decision.
What is the effect?
A Harvard Law Review article, after a review of copious case law, concludes that the pardon removes all legal punishment for the offence; and if the conviction involves certain disqualifications the pardon removes such disqualifications. These accord with the provisions of our Federal Constitution which state that a member of parliament who has received a free pardon is not disqualified from being such a member. Additionally, the King is also authorised to remove the disqualification of a convicted member of parliament.
Gurdial is Professor at the Law Faculty, University of Malaya. Comments: letters@thesundaily.com
**************************************************
DESIDERATA:
This article seeks to look at the applicable law and, where known, the practice in relation to pardons.
Who is given the power?
The power to grant a pardon is given explicitly by the Federal Constitution to the King – for offences committed in the Federal Territory; and to the ruler or governor of a state if the offence is committed in a state.
It is an exercise of executive power – as contrasted with the judicial functions of the courts or legislative functions of Parliament. Although executive power is vested under our constitution in the King, he is required to act on advice – either of the Cabinet or any other designated body.
The constitution has also established a Pardons Board for each of the states as well as one for all the Federal Territories. It comprises the attorney-general (or his representative), the Federal Territories minister and three other members to be appointed by the King. The King presides over the board. The board must consider the written opinion of the attorney-general before giving its decision.
The appointment of a cabinet minister seems to be at odds with the spirit of a constitutional provision which states that Parliament may make a law requiring the King to act after consultation with, or on the recommendation of, any person or body of persons other than the Cabinet – although no law has been enacted. The spirit of this provision implies that the Cabinet (which must necessarily include any cabinet member) must not be in any advisory body.
Courts often look not only at the letter of the law but, as well, its spirit to determine its reach.
In summary, the King decides whether or not to grant a pardon. He must seek the advice of the Pardons Board. Further, it is questionable whether a cabinet minister should be in the board.
Must the King act in accordance with the advice?
Does the King act in his own discretion; or must he follow the advice given by the Pardons Board?
Pre-1994 court decisions declared that it was the King's personal discretion to decide on the grant or refusal of a pardon. A 1974 Supreme Court decision declared: "Clearly the Yang di-Pertuan Agong himself exercised the power."
However, in 1994, the constitution was amended, following upon an intense contest between the rulers and the executive under Prime Minister Tun Dr Mahathir Mohamad. The power of the King to act on his own was dramatically curtailed – except in a very limited number of prescribed situations.
A new provision was added: whenever the King exercises his functions under the constitution or any federal law where he is required to act "in accordance with advice, on advice, or after considering advice", then he must accept and act in accordance with such advice: Article 40(1A).
This implies that after the amendment, the advice of the Pardons Board must be accepted and acted upon. However the relevant Article 42 – which deals with pardons – was not amended to reflect this change. And court decisions since the amendment seem to reflect the same position as before the amendment. As late as 2002, a full five-judge panel of the Federal Court approved the pre-amendment principle (cited above); as did a recent 2011 High Court case.
So although the legal position – on a straight reading of the constitutional provisions – is that the King does not act in his personal discretion, case law supports the proposition that the King has the personal discretion to decide whether or not to grant the pardon. Further, he is not bound to act on the "advice" given by the Pardons Board.
The process
There are no rules governing the process. It is not stated who should be the applicant. Nor is the form of the petition prescribed. Also, there is neither a time limit for submitting the petition; nor for the King to decide. The considerations that the King must take into account are also not stated.
This is left to be inferred from matters relevant to the grant of "mercy". The Supreme Court merely states that each case is to be decided on its own merits. The King can take into consideration matters which courts, bound by the law of evidence, cannot take into account; and he can consider public policy.
Admission of guilt?
The person convicted of a crime is appealing to the King to grant him a reprieve from the sentence. Generally and quite logically this would connote an admission of guilt.
Most cases where a pardon is sought fall in this category. Mokhtar Hashim's death sentence was commuted. A 14-year-old boy sentenced to death was instead sent to a school for delinquent juveniles. The jail sentence of Harun Idris, one-time mentri besar of Selangor, was reduced.
What if the petition for pardon is made on the basis that there has been a miscarriage of justice and that the convict is innocent? Can a pardon be given where guilt is not admitted?
There is nothing in law to say that a pardon cannot be made on this basis; or that a pardon cannot be given taking this "innocence" into account. Of course, it may be a lot harder to get a pardon on this basis. But there is no legal constraint.
The King must act "with the greatest conscience and care and without fear of influence from any quarter" – as the higher courts have repeatedly affirmed. So he can decide on the basis of the grounds of innocence set out in a petition. The King is not obliged to give any reasons for his decision; nor are reasons normally provided when the pardon is granted.
This suggests that there is no limit to the situations when a pardon can be granted on the basis of mercy.
Further, as the courts have repeatedly declared, the King does not sit as a court. He is entitled to take into consideration matters which courts cannot take into account. He can decide on his view of public policy.
So legally speaking, it is open for the petition to be considered on the grounds it refers to, including assertions of innocence and miscarriage of justice.
In these circumstances a particular petition presented on these grounds does not necessarily imply an admission of guilt.
Can it be challenged?
Whatever decision the King makes cannot be challenged in a court of law. The courts have consistently ruled that the discretion exercised is not justiciable. Nor can anything indirectly related to it be challenged – such as a delay in coming to a decision.
What is the effect?
A Harvard Law Review article, after a review of copious case law, concludes that the pardon removes all legal punishment for the offence; and if the conviction involves certain disqualifications the pardon removes such disqualifications. These accord with the provisions of our Federal Constitution which state that a member of parliament who has received a free pardon is not disqualified from being such a member. Additionally, the King is also authorised to remove the disqualification of a convicted member of parliament.
Gurdial is Professor at the Law Faculty, University of Malaya. Comments: letters@thesundaily.com
**************************************************
DESIDERATA:
Dear ER, it is educational for yee to read the following related reports! NO, I don't work for the Malay Mail, now about the only print media, besides the Malay Mail, that dare to publish more "balanced reports, in contrast with NST and The Star.
Thanks to Mr Nijar's elucidation on THE ROYAL PARDON, I am somewhat relieved by what DS Anwar's wife and daughter did, they must have been well counselled, and also sunk in the wells of emotional distress.
Meanwhile, to my fellow scribes in the media, both mainstream and Online, I have a plea, cun? "Don't Sell Thy Souls to the Devil!" -- paraphrasing from DS Anwar's statement in the closing remarks during his sentencing to the five-year jail during which the five judges walked out of the courtroom...
Mama Mia, let me go back to enjoying The Tremeloes' SILENCE IS GOLDEN -- click on the Theme Song above lah! --if one can't speak the TRUTH!
Last updated Monday, March 02, 2015 11:45am
Kuala Lumpur 31 °C, Mostly Cloudy
Nurul
Nuha Anwar (left) is joined by Nurul Ilham Anwar during an interview at
her house in Segambut, Kuala Lumpur, February 23, 2015. — Pictures by
Yusof Mat IsaKUALA LUMPUR, March 2 — Smear tactics may be a
reality of vicious politics, but Nurul Nuha Anwar said she will never
accept the allegations aimed at father Datuk Seri Anwar Ibrahim both
online and in the media.From attacks on his personal character as well as claims on his supposed thirst for political power, the second daughter of the jailed opposition leader said he was nothing like what detractors sought to portray him to be.
For the 31 year-old, the Anwar she knows and loves is a family man, a doting grandfather and a voracious reader.
“People have tainted him so much so that we cannot distinguish the person he is often made out to be.
“But the truth is, the person he is made out to be is different from the person he actually is,” Nurul Nuha told Malay Mail Online in a recent interview.
She said growing up in the Anwar household was never easy; simple trips to the shopping mall and even watching the occasional movie at the cinema that most families take for granted were rare luxuries.
“I mean we do go to malls sometimes to have dinner, to shop, and when people greeted Anwar, he would readily shake their hands and pose for photographs with them, it’s just who he is as a person,” she said, pausing between each sentence before continuing.
“It can be restrictive at times… but we need to have a sense of normalcy.”
To make up, the family would catch movies together at home, where Anwar would often play with his grandchildren as Nurul Nuha said he loved to do.
Nurul Ilham Anwar speaking during an interview at her house in Segambut, Kuala Lumpur, February 23, 2015.Her
younger sister, Nurul Ilham Anwar, said Anwar discouraged his family
from watching television during the weekend and instead, always pushed
the need for reading.“He just loves reading. All of us would be in a room together with him, each reading different books, and that to him would be how the family should spend their time together.
“This is why we bring his favourite books and read quotes from them when we gather every night outside the Sungai Buloh prison,” she told Malay Mail Online.
On February 10, the Federal Court upheld the Court of Appeal’s 2014 ruling that reversed Anwar’s acquittal of sodomising former aide Mohd Saiful Bukhari Azlan, and sentenced the Permatang Pauh lawmaker to five years’ jail.
Anwar’s family members have submitted an application for a royal pardon in hopes of freeing the leader from his Sungai Buloh cell and allowing him to retain his Permatang Pauh parliamentary seat.
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