Musa Aman FLOUTING the federal constitution: Rescind entry ban on Nurul - Bar councils

The three Bars of Malaysia — Sabah Law Association, Advocates’ Association of Sarawak and Malaysian Bar — deplore the denial of entry of Nurul Izzah Anwar, a Member of Parliament, into Sabah, upon landing in Kota Kinabalu on 30 May 2013, which was during the Pesta Kaamatan celebrations.

By deploying this drastic measure, the Sabah State Government is flouting the guarantee of freedom of movement that is enshrined in Article 9 of the Federal Constitution, which provides that “every citizen has the right to move freely throughout the Federation”.  Although the Sabah State Government has the statutory right to restrict entry, this power must be used sparingly, and only with justifiable cause.

The three Bars of Malaysia call on the Sabah State Government to immediately rescind the entry ban that it has imposed, and to cease and desist from resorting to such action without any justifiable cause.  We urge the Malaysian Government to take concrete measures to safeguard each citizen’s right to travel within his or her own land without hindrance.

G B B Nandy @ Gaanesh
President
Sabah Law Association 

Khairil Azmi bin Mohd Hasbie
President
Advocates’ Association of Sarawak

Christopher Leong
President
Malaysian Bar 

Najib: Umno emerged the strongest party based on GE13

Najib said the party’s performance was also gauged by its ability to wrest back Kedah and Perak, as well as the increase in votes obtained. - File pic

KUALA LUMPUR, May 31 — Umno remains the party of the people’s choice based on the results of the recent 13th general election, Prime Minister Datuk Seri Najib Razak said today.

He said this was evident with Umno winning 88 of the parliamentary seats in the election, from 79 in the 2008 general election.

“If compared with the opposition, they have 89 seats, meaning Umno alone can equalise the seats won by the opposition allies comprising DAP, PKR and PAS,” he told reporters after chairing the Umno Supreme Council meeting here today.

Najib, who is Umno president, said the party’s performance was also gauged by its ability to wrest back Kedah and Perak, as well as the increase in votes obtained.

“According to our study, there is about 30 per cent increase in votes for Umno from the 12th general election,” he added.

As such, he said, Umno would continue to strengthen its machinery through various improvements.

“The Umno supreme council has received suggestions from the management committee chaired by deputy president Tan Sri Muhyiddin Yassin on the need for us to review the party’s administration at the headquarters.

“This will involve research and training, the social media, information, etc,” he added.

Najib said restructuring was necessary to ensure efforts, message and all directives by the supreme council could be implemented smoothly.

“Restructuring will be carried in tandem with the need to get professionals to work full time and be dedicated to the tasks given,” he added. – Bernama

Do election petitions really work?

ANALYSIS The 13th general election held on May 5 set a number of records, one of it being the highest number of people turning up to vote. This election is now expected to set yet another record that is not going to look good for Malaysia in the face of the rest of the world: a record number of election petitions.

Both Pakatan Rakyat coalition members and the BN are expected to file these election petitions for both state and parliamentary seats and going by earlier reports, at least 70 such petitions are expected to be filed, with the results of the election having been gazetted on May 22.

Petitions must be filed within 21 days of the gazetting. According to earlier news reports, Pakatan intends to file more than 40 election petitions, with PKR alone planning to file 27, while the BN is considering to file about 30. 

Effectively, the last day for the filing of the petitions will be June 12. Section 34 of the Election Offences Act allows the voter, the candidate who lost or other candidates who contested in the election to file the petition. 

The Act also stipulates the relief that can be sought by the petitioner:

• A declaration that the election is void;

• A declaration that the person was not duly elected or ought not to have been returned (declared the winner); and

• Where the seat is claimed for an unsuccessful candidate on ground that he had the majority of lawful votes, a scrutiny of the votes be done.

The judge the hearing election petition is called an election judge and these people must be High Court judges and are given six months to dispose of the case.

The decision of the election judge can be appealed before the Federal Court, within 14 days, failing which the decision of the election judge is deemed as final.

Going by the intent of political parties working to file the petitions, the courts will see a surge in such cases, which need to be disposed of quickly. The question is whether this is going to be an easy task.

Bukit Bintang and Likas cases

Malaysia has seen several important election petition cases such as the Bukit Bintang election petition of 1995 and the Likas election petition of 1999.

In the Bukit Bintang case, Wee Choo Keong (left) won the election, but this was contested by Dr Lee Chong Meng of the MCA. Lee lost his appeal, and Wee later lost the seat, after he was fined RM7,000 for contempt of court and therefore, disqualified as an MP.

However, the Election Court made an unprecedented move by naming Lee as the Bukit Bintang MP, despite losing at the ballot box.

In the case of Likas, two election petitions were filed - one by former Sabah chief minister Haris Salleh and the other by PBS candidate Dr Chong Eng Leong, who is now with the PKR.

In this landmark case, the election judge found that people who are not qualified to vote to have voted in the election and therefore nullified the result that saw Yong Teck Lee declared as the winner.

The landmark decision that saw a challenge to the electoral roll arose from "questionable people" said to be non-citizens allowed to vote through what is now known as "Project IC" or "Project M", which is an on-going matter before the Royal Commission of Inquiry into illegal immigrants in Sabah. 

However, since then the government has amended the Election Act 1958 with the addition of a new Section 9A that bar the citizens from challenge the electoral roll drawn up by the Election Commission, which comes under the Prime Minister's Department.

Bribery, threats and procedural irregularities

Despite challenges to the electoral roll being thrown out by the courts, as proven in several recent cases filed by Klang MP Charles Santiago and Lembah Pantai MP Nurul Izzah Anwar, election petitions can still be filed.

Under the Election Offences Act, an election petition can only be filed on specific grounds, such as bribery being involved, threats and procedural irregularities.

Lawyer Wan Mutalib Embong, who has appeared for PAS in numerous election petitions, believes allegations of bribery, threats and procedural irregularities can still be raised in election petitions, despite the petitioners not being able to question the electoral roll.

"However, the evidence must be strong," Wan Mutalib said when contacted.

PAS legal bureau chief Asmuni Awi (left), who is tasked with the election petitions this time around, agrees with Wan Mutalib. The standard of proof for such cases should be "beyond reasonable doubt" and the petitioner must therefore have a strong case, Asmuni said.

"At present we are investigating the cases to build a strong case," he said.

Another lawyer, Azhar Azizan Harun, pointed to difficulties in winning election petition cases.

"I have won all of them when I acted for the winner. And I have lost all of them when I acted for the loser (or the petitioner).

"Let me tell all of you how high the standard of proof in an election petition is. And this is not the standard set just by our courts. It is the standard set by the Indian courts; the Canadian courts as well as the United Kingdom courts. So, please... don't say our courts are biased," Azhar said

"I acted for Zaid Ibrahim in the Hulu Selangor by-election. The prime minister said if BN won, he would give RM3 million to the Chinese school (if I remember correctly). Some 3,000 people were at the ceramah. BN won. Cheques were delivered the next morning. I lost.

"You see, I have to show how the result was substantially affected by the act which formed the complaint. That is the burden," Azhar wrote on hisFacebook page recently.

He further states that one could show thousands of videos of Bangladeshis in a bus, people getting paid and blackouts at counting centres, but in the election court, such evidences may not have any weight.

This is because, as stated earlier, the Likas election court case was a major blow to the ruling coalition, which caused it to change the election law so that the people can no longer challenge the electoral roll.

Another lawyer, Malik Imtiaz Sarwar (left), who together with Azhar had acted for Zaid, had also written on the issue inThe Edge and posted on hisblog. Malik contends that the election court is limited in its scope because of the restrictive approach laid down over time by the Federal Court. 

"This requires such courts to act strictly by reference to the legislation that circumscribes such courts, rather than the underlying purpose of the law. 

"As such, though the courts recognise the need for due emphasis to be given to the overriding principles of democracy, and the need to protect the purity of the election process, they are often times left powerless to deal with what might reasonably be perceived as electoral impropriety by an unduly strict interpretation of the legislation imposed on them by the apex court," says Malik

Petitioners go through a minefield

This, Malik added, has caused lawyers and petitioners "to navigate through a minefield" of procedural obstacles that have ultimately drastically reduced the number of, otherwise potentially, successful challenges. 

"The strictness of this approach has undermined the right of the voter to a free and fair election and the associated right of meaningful access to justice."

He also cited a 2008 decision of Justice David Wong Dak Wah, now a Court of Appeal judge, that if a "strict observance approach" is adopted, no citizen would be able to act for himself or herself in filing an election petition because, as surely as night follows day, the petition would be knocked out by preliminary objections. 

"Further, if the respondents' contention is sustained, the petitioner will have to go through the relevant provisions of the Election Act, Election Offences Act or Election (Conduct of Elections) Regulations 1981 with a fine tooth comb and put the relevant provisions in the petition. That would be a task a petitioner will not be able to fulfil. 

"In election cases, what chance does a person who wants to file an election petition himself or herself have? My answer would be next to none and that would, in my view, make the constitutional right of access to justice an illusionary one. 

"The remedies of law should be accessible to the ordinary people and laws should not be interpreted in such a manner that only rocket scientists can access remedies in the law, as that cannot ever be the intention of Parliament," wrote Justice Wong.

Malik further said that he was writing this not to discourage the aggrieved parties to avoid the courts. 

"They must seek recourse and present their respective cases as best as they can. I doubt, however, that the court actions will in themselves serve to assuage the discontented amongst us."

Najib implies he's open to challenge for party post

Umno president Najib Abdul Razak has implied that he is ready to face any challenge to his position in the forthcoming party elections, saying that Umno is a democratic party.

“Well, Umno is a democratic party so I do not know. We have to accept that Umno is an open party, not like some other parties,” he said at a press conference today. 

Najib said this when asked after an Umno supreme council meeting today whether he is expecting anyone to challenge his position. 

Umno has overhauled its party electoral system, which among other changes has removed a quota on the minimum number of nominations a candidate needs to run for the presidency. This effectively opens the position to a challenge from virtually any Umno member. 

The new electoral system will be put to its first use in the oming party election, which Najib said will be held some time this year. 

BN has suffered its worst electoral performance ever in the May 5 general election. Although Umno itself has performed relatively well, the GE13 result has shaken Najib’s position.

Meanwhile, Bernama reports that Najib said Umno will set up a special laboratory to study in detail the proposal to turn the BN into a single party. 

The Umno president said Umno also had to gather feedback from its members before making a decision on it.

Any changes, he said, must be based on acceptance by Umno members themselves.

“Umno is a party that is close to the members’ hearts... so any changes must be studied in minute detail to avoid the issue of non-acceptance,” he said. 

This is the first Umno supreme council meeting since the 13th general election on May 5.

The proposal to turn the BN into single party was forwarded by Gerakan acting president Chang Ko Youn (left).

Chang said efforts in this direction was needed because the 13th GE showed urban and young voters no longer voted along racial lines.

99 complaints on internal sabotage

Meanwhile, Najib also announced that Umno's disciplinary committee had received 99 complaints on internal sabotage during GE13.

Decisions on the complaints would be made by the committee, he said.

A total of 192 Umno members who contested as independents or joined the opposition during GE13 had earlier been given the immediate sack based on party policy.

Under the policy which is spelt out in Clause 20.10 of Umno’s constitution, sacked members cannot rejoin Umno forever.

Among those sacked were Wanita Umno vice-president Kamilia Ibrahim (left) who stood as an Independent candidate for the Kuala Kangsar parliamentary seat; Mohd Shariff Omar (contested the Tasek Gelugor parliamentary and Sungai Dua state seat as an Independent ) and Sepang Umno Youth chief Suhaimi Mohd Ghazali (contested the Sepang parliamentary seat as an Independent). 

Meanwhile, BN secretary-general Tengku Adnan Tengku Mansor said BN would be filing more than 50 election petitions on the GE13 results in the High Courts of the states involved soon. 

He said the coalition’s lawyers were studying the cases including in 37 constituencies where the nomination of opposition candidates appeared to be doubtful in that election regulations were not followed.

Zahid agrees with Waytha's suspension proposal

VIDEO | 2.13 min

Home Minister Ahmad Zahid Hamidi agrees with Persatuan Hindraf Malaysia chairperson P Waythamoorthy that the police officers being investigated for custodial death cases should be suspended from the force, instead of being assigned to desk duties.

"I think that view is true," he said at a press conference in Kajang today after his inaugural visit to the Prisons Department headquarters.

He had been asked to respond to Waythamoorthy's (left) statementyesterday.

However, Zahid cautioned that such a move must be done delicately to avoid "demoralising" the police force.

"Those responsible are individuals, not the entire force; so take action on the individuals, not the entire force."

On the whole, Zahid noted that police interrogation procedures may need to be looked at, so that future custodial deaths are not automatically blamed on the police.

He also proposed that detainees no longer be held during remand in police lock-ups, but in centralised holding centres with proper monitoring and CCTV coverage, so that can provide possible evidence of any wrongdoings, if they were to occur.

Asked about inspector-general of police (IGP) Khalid Abu Bakar's proposal for “safe zones” in crime-ridden cities where motorcycles would be barred from entering, Zahid said that he will need to study the statement first, but pledged his ministry's commitment, as well as that of the related agencies to make the city streets safer.

When quizzed about Pakatan-linked NGO Solidariti Anak Muda Malaysia (SAMM), which is planning a rally in front of his ministry after Friday prayers later today to demand his resignation, Zahid (right) replied that it is not his, nor is it their prerogative.

He said that only Prime Minister Najib Abdul Razak has the authority to decide who is a minister.

"I am not answerable to them, I am answerable only to the PM," he stressed.

However, he expressed solidarity with the second demand by the group, which is a demand for a revamp of the Royal Malaysian Police’s (PDRM) image.

Zahid agreed that the police force needs to be given a facelift as well as a more “people-friendly image”.

Genting's donations of RM190mil election-related?

KINIBIZ Genting Bhd has made unexpected corporate social responsibility contributions totalling an estimated RM190 million in the first quarter of this year, which analysts and industry sources said could be related to the May 5 elections.

Analysts said this is an extremely large amount for Genting to be donating in the first quarter, and has significantly affected its final profits.

For the first quarter of this year, Genting made a pre-tax profit of RM967.6 million. If not for the donation, this would have been RM190 million or 20 percent higher at RM1157.6 million.

Analysts were puzzled that the Genting group made such a huge donation, and that too spread out over several companies, in just one quarter, significantly impacting its bottomline.

They speculated that the so-called donations could be election-related, using charities as fronts. It is normally unthinkable that such large contributions were made to charities, one analyst said. Genting officials were not available for comment.

Industry sources said that other companies may have made similar “donations”.

It was not clear to whom the Genting donations were made but analyst reports said  Genting-linked company, Genting Plantations, made a donation of RM35 million to Yayasan Gemilang 1Malaysia, a foundation whose purpose has yet to be released publicly, although it is said to be concerned with the eradication of poverty.

A search on the Internet produced no results for Yayasan Gemilang but analysts pointed out the use of the term 1Malaysia as something that could be linked to the government and possibly a “charity” associated with the general election. This could not be confirmed, however.

PERSONA NON GRATA, HAK MUTLAK SABAH!

Oleh : MUTALIB M.D

KEKALUTAN kuasa politik Sabah yang bermula di zaman Syed Kechik telah membarah sejak sekian lama merintis jalan yang panjang kepada UMNO untuk mendirikan tugu kuasa; setelah semua undang-undang untuk Sabah yang ditinggalkan British telah diubah mengikut acuan Malaya, termasuk Imigresen dan autonomi Ketua Menteri Sabah.

Bermula dengan zaman Syed Kechik menukang jejari pusat undang-undang tubuh Sabah termasuk Ordinan Tafsiran Anak Negeri yang memasukkan klausa kelayakan memohon Anak Negeri untuk Orang Malaya, Kepuluan Sulu, Sulawesi dan Singapura daripada kumpulan 'Native' di negara berkenaan sebagai Anak Negeri Sabah; tidak pernah dicabar oleh Kerajaan USNO, Berjaya, PBS dan UMNO.

Ordinan yang dipinda di Zaman Syed Kechik membolehkan sesiapa sahaja boleh menjadi 'Native' termasuk Lian Kee Chu atau Kwan Ngen Wah bersaudara yang tidak mempunyai walau setitik darah 'Native' tetapi mempunyai banyak wang untuk mendapat Sijil Anak Negeri Palsu; dengan kerjasama Ketua Daerah dan Ketua Anak Negeri yang selama ini menjadi pengkhianat kepada Anak Negeri dan menjadikan Mahkamah Anak Negeri sebagai 'Mahkamah Kangaroo'.

Kuasa Istimewa Ketua Menteri yang dimiliki secara 'Mutlak' oleh Al-Marhum Tun Mustapha, seperti Kuasa Imigresen dan ISA telah dihakis secara tidak sedar oleh Kerajaan Persekutuan melalui pelbagai cara termasuk penubuhan Jabatan Imigresen di Zaman Berjaya; Task Force di Zaman PBS dan Pemusatan Kuasa Imigresen di Putrajaya di Zaman UMNO.

Dengan pemusatan kuasa Imigresen di Putrajaya, maka Ketua Menteri Sabah kehilangan autonomi dan kuasa mutlak terhadap kedaulatan Sabah dan hanya tinggal saki baki kuasa Imigresen mengikut Semangat 20 Perkara; iaitu kuasa sekatan terhadap rakyat Semenanjung ke Sabah; sebaliknya tidak langsung mempunyai kuasa imigresen untuk menyekat kemasukan Warga Asing.

Agak bertambah malang, Ketua Menteri Sabah yang kehilangan kuasa mutlak Imigresen diketatkan lagi dengan sekatan Akta Imigresen iaitu Kerajaan Persekutuan tidak boleh menangkap Warga Asing di Sabah melainkan mereka telah mendarat di Sabah.

Kelonggaran undang-undang Imigresen ini telah menyebabkan Kerajaan Negeri hilang kedaulatan ke atas Sabah dan hanya mempunyai kuasa untuk melakukan sekatan terhadap 'Persona Non Grata' iaitu 'Orang yang difikirkan tidak diperlukan di Sabah' termasuk Tian Chua atau Nurul Izzah.

Apakah ruginya rakyat Sabah jika Nurrul Izzah, Tian Chua dan semua Persona Non Grata yang senarainya (rahsia) terdapat di Jabatan Imigresen Kota Kinabalu, Sandakan dan Tawau tidak dapat masuk ke Sabah? Hanya semata-mata mahu menyambut Pesta Kaamatan dan menimbulkan provokasi, kononnya BN Sabah melakukan 'penipuan pilihanraya'?

Persoalannya, kenapa sejak 5 tahun lalu, tidak ada sebarang cadangan pindaan undang-undang untuk mencabar Akta Imigresen dilakukan oleh Nurul Izzah dan puluhan Ahli Parlimen Pembangkang; sebaliknya hanya dijadikan 'libatan liar senjata politik' tanpa motif yang jelas.

Mempersoalkan kuasa mutlak Ketua Menteri, termasuk soal Kuasa Imigresen terhadap 'Persona Non Grata' dan 'Sekatan Pengembangan Agama (selain Islam) terutama dalam Kes Mazu, telah menyebabkan ketenteraman awam di Sabah terancam; apatah lagi tidak ada pihak yang berani menggunakan lunas-lunas undang-undang untuk mendapatkan hak mereka yang kononnya terhakis.

Kuasa Sekatan terhadap 'Persona Non Grata' yang dimiliki Ketua Menteri Sabah adalah 'Senjata Terakhir' yang masih dimiliki secara mutlak oleh Kerajaan Negeri Sabah; jika itu juga tidak dihormati oleh rakyat Sabah, maka apalah ertinya kemerdekaan ini jika Ketua Menteri tidak boleh melaksanakan kuasa autonomi?

Isu Tsunami PATI di antara 1972 hingga 1991, adalah isu yang berbeza kerana Ketua Menteri Sabah tidak mempunyai kuasa Imigresen untuk menghalang warga asing, seperti 'Syaitan Kiram' masuk ke Sabah kerana di bawah bidang kuasa Kerajaan Persekutuan.

Ketika saya dan keluarga mendapat Taraf Penduduk Tetap Sabah pada 1974, saya memikirkan betapa istimewanya Sabah yang mempunyai kuasa mutlak melakukan sekatan kepada bukan rakyat negeri ini, sebelum dimusnahkan secara total oleh Megat Junid dan Tun Dr Mahathir yang melancarkan Operasi X-Files, 'Durian Buruk'.

Sejak daripada 1991, memiliki kerakyatan Sabah tidak lagi bermakna kerana PATI bukan sahaja mudah mendapati IC Sabah, malah mendapat kod 12, 47, 48 dan 49 sedangkan saya kekal dengan Kod 02 iaitu negeri kelahiran saya, Kedah.