Sunday, December 27, 2015

New AG Mohamed Apandi Ali needs to learn from previous AG Abdul Gani Patail's mistakes

Attorney-General Mohamed Apandi Ali get to the real story Thanks to the paradox of politics, I may be sticking my neck out saying this because there’s nothing certain in politics and impossible things invariably happen just to prove to us currently, with so much scepticism over the integrity of Attorney-General Mohamed Apandi Ali 
Mohamad Apandi Ali, a former United Malays National Organization state treasurer before being elevated to public prosecutor and then the judicial bench, was hurriedly drafted to replace the long-serving  Abdul Gani Patail in August just as Gani Patail reportedly was about to file charges against Najib for corruption. Apandi immediately denied that Kevin Morais was working on the case when he was abducted and murdered.The Attorney-General office,For months, Malaysian law enforcement has been wracked with attempts on the part of the Najib government to quell investigations into hundreds of millions of dollars that ended up in the prime minister’s personal account, then disappeared again, and by massive mismanagement of the troubled 1Malaysia Development Bhd. state-backed investment firm Malaysian Anti-Corruption Commission officials have been subjected to what has been called a scorched-earth campaign to discover who, if any of them, has been leaking information on the case. ‘Damage has already been done to his almost non-existent reputation.’
under the scrutiny of American investigators a parade of inquiries at home and abroad into a sovereign wealth fund that he oversees,The inquiry, being run by a unit of the Justice Department that investigates international corruption, is focused on properties in the United States that were purchased in recent years by shell companies that belong to the prime minister’s stepson as well as other real estate connected to a close family friend A federal grand jury is examining allegations of corruption involving the Prime Minister, Najib Razak, and people close to him, 
One evening in April 1775, the English man of letters Samuel Johnson made a famous remark.”Patriotism,” he said, “is the last refuge of the scoundrel.”Johnson was criticising what he called false patriots – people who invoke the name of their country to advance their own political agenda.In America, we often refer to that kind of scoundrel as “people who wrap themselves in the flag.” It means people who pretend to do something for patriotic reasons or out of loyalty to their country when their real motives are selfish, and their real goal is their own personal and political gain.It means people who “play the patriot card” and try to diminish their opponents by suggesting they do not love their country, or are even traitors to it.Malaysians are no longer going to keep quiet. Even our Rulers who have spoken up.The Universiti Islam Antarabangsa (UIA) student asked how much more could Malaysians take in While taking into account the need to strike an optimal balance between transparency and confidentiality,Directing investigations and making legal views that are consistent with the best practices of accountability, transparency and humanitarianism
Bahri reiterated that the MACC is barred by law from disclosing the identity of Najib' donor.He said under the MACC Act 2009, the commission cannot divulge the details of its investigations until the case has been brought to court. ALSO read this Najib can prove to be a gilt-edged securities yielding handsome the Arab Donors
This is a crucial jurisprudential question which needs to be considered Najib is a continuous process that unravels itself layer by layer. the Attorney-General Mohamed Apandi Ali can reach decisions based on his perspectives and compulsions, The luckiest thing that happened to Prime Minister Najib been equally lucky in finding Attorney-general Mohamed Apandi Ali  has metamorphosed into a first-rate hypocrite. the thin veil of protection draped around Najib given a virtual political asylum. Such thin prophylactic was never going to be sufficient protectiona gainst Malaysian outrage Corruption is a slippery slope for anyone in power  mislaid in that variable space between letter of the law and spirit of the relationship. 
Also channelled in Najib's account, the report claimed, is RM42 million that supposedly originated from SRC International. Najib has since denied any wrongdoing.

“As the director of the special operations division, I wish to inform that the investigation team has been given guidance and blessings from MACC chief commissioner Abu Kassim Mohamed that the team must record the recommendation regarding the investigation findings freely, whether there is a case or not.
“If there is a case, it is our responsibility to recommend for prosecution in the investigation report that will be submitted to the attorney-general next week, and vice versa. the Attorney-General Mohamed Apandi Ali can reach decisions based on his perspectives and compulsions, but conclusions are based on hard facts and empirical evidence.unable to present a logical set of reasoning and evidence Problem is that Apandi Ali  searching for conclusions, so that he can shut the lid on 1MDB 
MACC's senior management is of the view that this is important to ensure that all parties would know that MACC has taken all actions professionally and freely,” he said.
Bahri was responding to a blog post by former New Straits Times Press group editor-in-chief Abdul Kadir Jasin, where the latter had expressed concern that Abu Kassim's reassurances of MACC's independence may be a ruse.
The RM2.6 billion issue first emerged in July when The Wall Street Journal reported that the money was channelled into Najib's personal bank account close to the 13th general election.

Law enacted by Parliament, including constitutional amendments, is basic structure of constitution and nobody can agitate against this position. Having agreed to, the executive should be and thankfully seems prepared to accept an adverse decision; it’s like if you agreed to play the match, you must be prepared to accept defeat.
.There is a fundamental conflict of interest in the functions and powers We have a living breathing Constitution and a functional democracy. A Parliament enacted an amendment with a large majority, which had the right to do so, in all its collective wisdom. Our Parliament, on the other hand, is  a lame duck legislature which should be abolished to save taxpayers money. Our public officials like the Attorney-General, the Inspector-General of Police, the Malaysian Anti-Corruption Chief Commissioner, and the Governor of Malaysia’s central bank are not able to enforce the law since they report to the Prime Minister, and serve at his pleasure. The Judiciary which is supposed to be our  last bastion of  justice is subservient to the powerful Executive Branch (and for that we must be eternally grateful to our most outstanding Prime Minister No. 4). We are saddled with institutions that are decrepit and dysfunctional.Our democracy is an abject failure and our confidence and trust in our government is at its lowest point in our 58 year history 
The Malaysian Anti-Corruption Commission (MACC) will submit the findings of its investigation on former 1MDB subsidiary SRC International, and on the RM2.6 billion donation to Prime Minister Najib Abdul Razak, next week.

In a statement today, MACC special operations director Bahri Mohd Zin assured that the two investigations are being done freely, transparently, and professionally
Image result for MACC special operations director Bahri Mohd Zin
This point invites some introspection from the executive. Why the state is is biggest litigant? Is there a dichotomy between governance and public welfare?  Are we moving away from a welfare state to bureaucratic state? Why is the state fighting its own citizens with the taxpayers money? Are most of government decisions having a bureaucratic stamp arbitrary, irrational and a result of bureaucratic arrogance? This issue needs serious consideration.There can be an argument that while deciding this subjectivity may creep in, but this is part of life as no human decision can be purely objective. This militates against basic premises of Parliamentary democracy. has the danger of a possible elected autocracy and legislative anarchy, and history is replete with such examples all over the world.
Malaysian Bar president Steven Thiru says a professional relationship will be maintained with the current Attorney-General. – The Malaysian Insider filepic, November 16, 2015.
The Malaysian Bar today said it would maintain a professional relationship with the Attorney-General’s Chambers (AGC) to preserve and protect the rule of law and to uphold the supremacy of the Federal Constitution.
In present times, one would be hard-pressed to find examples of those with the power and the influence over society acting in a way that is dignified and noble. On the contrary, we have men and women purporting to be leaders but behaving in a manner that ought to be scorned if conducted by the meanest of the citizenry, let alone those who stalk the corridors of power. In short, we don’t have any class.the Chief Justice’s last sentence, where he points out that such good behaviour as displayed by the lawyers on both sides augured well for the nation. Chief Justice James Thomson. would be disappointed to see that his prophecy was far from accurate.A-G abuse of power should give reasons to withdrew the charges resulting in acquittal is not immune from legal scrutiny our administration of, our criminal justice system consists “of four separate, but essential, machinations.” They are the Police or other investigative authorities, prosecution, defence and the Courts. The Police investigates. The prosecution decides whether or not to prosecute and if so, it proffers the charge and prosecute. The lawyers defend the accused. The Courts  adjudicate.”

Emile Durkheim defines law as social fact. Naturally the custom or practice which is acceptable to society in general gets translated in law, and society accepts and implements such law reducing role of the courts as interpreter of law.  Unfortunately in a society like ours, where a microscopic minority is in position to implement the law, it has resulted in more litigation, and  therefore democratization of our society is the only answer to this malaise.

the Government of Kelantan v the Government of the Federation of Malaya (1963)

that was the time when the state government objected to the formation of Malaysia because it said that it was never consulted. The Kelantan Government lost because the Judge found that there was nothing in the Constitution that compelled the Federal Government to consult with the states on the creation of Malaysia.

Chief Justice James Thomson. behaving in a manner that does not pander to the crass and the uncouth. We battle them, of course, but with dignity and with honour. We do not lower ourselves to their level. We can show some class. the opening statement by the judge fascinating
arguments with the thoroughness which they deserve, it is not due to any discourtesy but due to the necessity of disposing of the application today,” he said.
the temperance and restraint with which counsel on both sides have stated their case and, in particular, of the acceptance by each side of the sincerity of the other.

Chief Justice James Thomson started off with thanking the lawyers for their assistance and then effectively apologising for not having the time to discuss their arguments in-depth. Manners maketh the man, as they say. Furthermore, as the second paragraph shows, it wasn’t just the Judge who behaved in a polite manner. The lawyers too were commended for their civility towards one another and how they practised restraint despite being on diametrically opposed camps dealing with a passionate subject matter.This opening statement by the Judge and his description of the behaviour of the lawyers just reeks of class. It is that intangible quality that raises one above the crude and the crass.

To be able to do battle without resorting to lowering oneself to the basest of speech and action.To be able to act with humility even when one holds the highest judicial office in the land. My goodness, how we are lacking such class today. If the powerful are corrupt, can we be surprised if the lowly are too? If the high and mighty behave like thugs, can we be surprised if the hoi polloi do so too?

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