Friday, October 30, 2015

No limit on percentage of oil royalty to states in Federal Constitution — See

October 30, 2015, Friday
KUCHING: There is no provision in the Federal Constitution barring the state governments of Sarawak and Sabah from asking for 20 per cent or more in oil royalty from the federal government.
Batu Lintang assemblyman See Chee How believed Sabahan author Zainnal Ajamain’s interpretation of the Tenth Schedule Part V Section 3 of the Federal Constitution was misguided and erroneous and without judicious basis, when the latter talked about the rights of the two East Malaysian states in the federation.
He added that Section 3 of Part V was clear and unambiguous. It enables the states of Sarawak
and Sabah to levy or collect export duty from minerals chargeable with export duty, including mineral oils, to make the total of royalty and duty on exported mineral up to 10 per cent ad valorem (according to value) so calculated.
“What it means is, if the royalty levied on any mineral or mineral oil is less than 10 per cent, it can impose or collect export duty on the exported minerals or mineral oil up to 10 per cent ad valorem so calculated.
“Hence, with the petroleum royalty standing at five per cent presently, the states of Sarawak and Sabah are entitled to the whole or part of the export duty on petroleum to the
sum corresponding to 10 per cent of the value of petroleum and petroleum products exported from these two states,” he said in a statement to The Borneo Post yesterday.
See was defending the State Legislative Assembly’s resolution to demand for 20 per cent oil
royalty from the federal government against Zainnal’s contention, when launching his book ‘The Queen’s Obligation’ here on Wednesday, that Sarawak and Sabah cannot ask for anything more than 10 per cent in oil royalty.
“However, if the royalty is 10 per cent or more than 10 per cent, Sarawak and Sabah are not entitled to the export duty which is or are levied on the petroleum or petroleum products. It is therefore clear that the provision does not bar the state governments from asking for 20 per cent or more in oil royalty from the federal government.
“On the contrary, Sarawak and Sabah may demand for royalty of up to any percentage for the mineral or mineral oil but they will not have any share in the export duty levied on the particular mineral or mineral oil,” See who is a lawyer by training continued.
In addition, he said it would be useful if the state can reveal the total value of oil that was taken from Sarawak and the duties derived for the government to assess and demand the additional revenue which should be assigned to the state.
“In 2014, our actual state revenue from compensation in lieu of Oil Rights was RM1,236 million and the compensation in lieu of excise and import duties was RM120 million. For 2015, it is estimated that the state revenue for these 2 sources are RM772 million and RM120 million respectively.”
With regards the Malaysia Territorial Sea Act 2012 [Act 750] that is said to apply throughout Malaysia, See will seek the coming State Legislative Assembly to make a firm stand that the Act has no application in Sarawak.
He explained that the Federal Constitution provides that any law which seeks to alter the boundaries of a State shall not be passed in Parliament without the consent of that State in the form of a law made by the legislature of that State.
However, See agreed with Zainnal that section 3(3) of the Malaysia Territorial Sea Act 2012 had made reference to the Continental Shelf Act 1966 [Act 83] and the Petroleum Mining Act 1966 [Act 95], to determine the limits of the territorial seas of Sarawak and Sabah, is wrong as the relevant provisions in Acts 83 and 95 were made pursuant to the Emergency (Essential Powers) Ordinance No. 10 of 1969, the proclamation of which was lifted on November 23, 2011.
“I would urge that the State Legislative Assembly make a statement in this coming sitting to safeguard the integrity of the DUN and solemn rights of the state with regards its territorial boundary,” he continued.
~ The Borneo Post

69,640 applications to register as voters from July-Sept


October 30, 2015

EC reminds applicants to check electoral roll and make claims for duration of the exhibition by filling Form B, if their names are not listed.

DATUK-ABDUL-GHANI,spr

PUTRAJAYA: The Election Commission (EC) received 69,640 applications as voters during the third quarterly voters’ electoral roll registration period for July, August and September, said its secretary Abdul Ghani Salleh.
He said, out of the total, 57,255 registered as new voters while another 12,385 applied to register for a change to a new addesss.
“In accordance with the requirements of Regulation 13 of the Election Regulations (Registration of Electors) Regulations 2002, the third quarterly electoral roll is now on display for 14 days from October 27,” he said in a statement here today.
According to Abdul Ghani, it is now displayed in 962 places nationwide, among them, state EC office; computerised post office; government office/complex; land office/district office; district/municipal council and multi purpose hall/neighbourhood and community centres.
He reminded those applying as voters or for change their addresses to check the electoral roll and make claims for the duration of the exhibition by filling Form B, if their names were not listed.
Meanwhile registered voters in any of the electoral divisions wishing to object the inclusion of any persons in the electoral roll could do so by completing Form C, he said.
The voter can object to not more than 20 individuals in accordance with the sub-regulation 15 (3) of the Election Regulations (Registration of Electors) Regulations 2002.
Abdul Ghani said the EC would also display the names of voters who will be removed from the electoral roll, among others, as having died or due to forfeiture of citizenship.
Anyone with enquiries can contact the EC headquarters at telephone line 03-88927000, state election office or surf the EC website at www.spr.gov.my.

– BERNAMA

Will adding more Adenans save Sarawak?





COMMENT In my short conversation with a Sarawakian friend, I made one remark that I am surprised myself how it came out from me.
“Only more Adenans will be able to save Sarawak,” I said in view of the coming state election, which has to be called by June next year.
The conversation centred around the recent political manoeuvre by Sarawak Chief Minister Adenan Satem to dissociate himself from Prime Minister Najib Abdul Razak.
In a speech during the Chinese New Year celebration with the Chinese, Adenan had condemned Umno in West Malaysia, and told the Chinese in Sarawak that they are not ‘pendatang’ (immigrants). He, however, stopped short of calling them sons of the soil.
In recent days, even Adenan has tried to stay away from the controversies surrounding Najib which has made it difficult for him to explain to the ordinary folks ahead of the state election, how the 1MDB saga will affect the people of Sarawak.
When I last visited Nanga Sumpa, a small village near the border of Kalimantan, to my surprise, people were asking me about the 1MDB. This was a year ago, way before the expose by the Wall Street Journal and Sarawak Report. I told them I had no answers.
In recent months, for some strange reasons, Sarawak Report has focused mainly on Najib rather than former chief minister Taib Mahmud, and from being a state-based whistleblower, its owner Clare Rewcastle-Brown has shifted the attention to Najib. It is because the 1MDB black hole is simply too big to be ignored.
Whatever happens to 1MDB eventually will affect the people of Sarawak. If the country has to pay the huge loans which 1MDB fails to service, it could only mean that the already poverty-stricken people of Sarawak would have to continue in their cycle of poverty for perhaps, my guess, the next five decades.
This is why the Sarawakians themselves are starting to ask questions, especially when the answers are not forthcoming. News is getting to even the most rural villages where there is no electricity, fresh water and the internet. People do not have access to Malaysiakini, yet they knew about the news portal.
Word of mouth spreads faster in such rural settings than the social media; therefore, for the federal government and the Multimedia and Communications Ministry to pin it solely on the social media as its major threat is a little short of addressing its real problems.
How much can the new CM achieve?
Adenan may be a moderate and in fact is well-liked, but his victory will mean just having one man occupying the seat of Sarawak chief minister.
What can one man do to transform the system when the entire system is corrupt? Unless there are more Adenans in Sarawak, how much can the new chief minister achieve in putting things in order?
There may be some positive changes here and there, but honestly, the question one has to ask is: since taking over the helm from his predecessor and former chief minister, how much has Adenan achieved, especially when Taib is also his brother-in-law and now the governor?
The problems faced by the country is not because of just one man, and not just Najib alone, but the entire system which has become rotten over the years. This has resulted in high-level corruption and major scandals that we hear so much about, yet the long arms of the law are unable to deal with them to any great extent.
We read about the wastages in the civil service, but what actions have been taken against such practices? Behind these so-called wastages, there is money to be made and obviously, someone must be benefiting from such practices.
Well and true that the Malaysian Anti-Corruption Commission (MACC) has been investigating the SRC International’s alleged transfer of RM40 million into Najib’s personal accounts, but until today, Najib has not been called to give a statement.
Instead, Minister in the Prime Minister’s department Paul Low (photo) is giving a flimsy answer: “If necessary!” My question to Low is: 'Why is it not necessary? If the money has gone into jailed opposition leader Anwar Ibrahim’s personal accounts, would it be necessary then for Anwar to be giving statements?”
If you worked in a bank, and an investigation was being conducted over a missing amount as big as RM40 million, would the investigators knowingly pass you by when they discovered that in recent months that you are richer by RM40 million?
Therefore, I find Low’s answer not only unconvincing, but lacking the credibility of a minister in charge of integrity. Low may be a man of integrity himself in his personal life, but his answer in Parliament, which are meant for public consumption, is definitely not up to the mark.
For Adenan to do well in Sarawak, he has to add more people like himself in the state government, but till today, has he been able to ‘convert’ people who were once loyal to Taib? Will he pick a new set of people to stand in the election, or will it always be the same old people?
If not, I can safely say that Adenan will be another casualty like former prime minister Abdullah Ahmad Badawi. The moment his colleagues find him on the wrong footing, they will find an opportunity to put him in cold storage, or remove him.
This was what also happened to former Umno supreme council member Saifuddin Abdullah, who had no choice but to leave Umno to join Pakatan Harapan. At least, within the new coalition, he can find people who are like-minded and will be able to contribute his time and efforts to make this nation a better country for everyone.
What Adenan needs to add to his team are the type of young leaders which Saifuddin has clearly spelt out, that now exist within the Pakatan Harapan framework - people such as Rafizi Ramli, Nurul Izzah Anwar, Tony Pua, Liew Chin Tong, Zairil Khir Johari and Mujahid Yusof Rawa.
Saifuddin himself is a potential leader who, when he was deputy higher education minister, was more well-liked by the operators of private tertiary education providers than his boss Khaled Nordin.
I wish to add also people like Dyana Sofya Mohd Daud (DAP candidate for Teluk Intan by election), Baru Bian (Ba’Kelalan state assemblyperson), Nik Nazmi Nik Ahmad (Selangor state assembly deputy speaker), Tian Chua (PKR vice-president), Dr Ong Kian Meng, N Surendran, Hannah Yeoh (Selangor state assembly speaker), Kashturi Patto and Elizabeth Wong (Selangor state exco member) as well have proven themselves to be useful and well-liked within the coalition.
That is why if Adenan knows that he is alone within the present setting, he should perhaps join Baru to form a new coalition in Sarawak. After all, birds of the same feather flock together.
GST affecting everyone
Sarawakians can no longer afford to live in a bliss of ignorance. Amidst the pressures of the Goods and Services Tax (GST), there are still lawmakers within BN who kiss the master’s boots and said, “GST is a god-sent solution!”
We, in West Malaysia, are having to pay hefty toll every day, but do you think the Trans-Borneo Highway would become a reality, especially with the current financial situation? 
A number of major projects have been announced since Najib came into office, but till today, some of the projects have not taken off. I am wondering what is happening to the new ‘world’s tallest tower’, which is supposedly to rise from the present site of Stadium Merdeka. Is the project making much progress despite all the brouhaha when it was announced a few years ago?
Even former prime minister Dr Mahathir Mohamad knows that his dream of a crooked bridge across the Straits of Johor can be dashed against the rocks, when there is not enough money in the coffers and there are more pressing needs elsewhere.
Sarawakians will not be interested in mega projects, but they want to know where the next meal is going to come from. Already constrained in their budgets and lacking the opportunities to improve their economic well-being, they are now being saddled with the GST at 6 percent.
Sarawakians really cannot escape from the reality of the GST, and other policies decided for them in Putrajaya. Unless they can put Adenan as prime minister in Putrajaya, and that I fully support. For now, my take is this: One vote for Adenan is one vote for Najib and Taib.
To vote for Adenan is therefore for Sarawakians to perpetuate the regime that, by right, should have been changed in the last general election. Even the Chinese dynasties had to be replaced so that justice and uprightness can be upheld. These are lessons from history.
Unless Adenan changes camp, or leads his political party to defect, Adenan can only be as good as one of them. No offence to Adenan, but this is a fact of life. He alone cannot bring reform to the entire BN coalition. Even Mahathir is unable to shake the mountain, can Adenan?

STEPHEN NG is an ordinary citizen with an avid interest in following political developments in the country since 2008.


Read more: https://www.malaysiakini.com/news/317750#ixzz3q2WFAPdm

Bank Negara can act against 1MDB without A-G, says G25


The G25 group of eminent Malays says Bank Negara can take action against 1Malaysia Development Bhd (1MDB) independent of the Attorney-General. – The Malaysian Insider file pic, October 30, 2015.

The G25 group of eminent Malays says Bank Negara can take action against 1Malaysia Development Bhd (1MDB) independent of the Attorney-General. – The Malaysian Insider file pic, October 30, 2015.
Bank Negara Malaysia can take action against 1Malaysia Development Bhd (1MDB) for failure to comply with the central bank's direction to repatriate US$1.83 billion (RM7.87 billion) to the country, the grouping of eminent Malays or G25 said today.
The group said in a statement that this could be done independent of the Attorney-General under Section 239 of the Financial Services Act.
It added that when Bank Negara acted under this section, it did not prosecute, therefore the question of the central bank exercising the powers of the A-G did not arise.
“When Bank Negara takes action under Section 239, it is taking a civil action, as opposed to taking criminal action against 1MDB. 
“A decision on criminal action can only be made by the A-G.
“When Bank Negara takes a civil action against 1MDB under Section 239 for non-compliance with Bank Negara's direction, Bank Negara can ask the court for any of the orders under the act.
“For example, Bank Negara can ask the court to compel 1MDB to pay it US$1.83 billion or, in the alternative, ask the court to compel 1MDB to pay the central bank any civil penalty,” G25 said.
The group said once the court made an order against 1MDB under the act and if 1MDB failed to comply, the central bank could institute contempt proceedings against 1MDB.
“Legal experts have verified that this need for civil action is appropriate and has only arisen because the Attorney-General has decided there are no grounds to prosecute and denied Bank Negara’s request that the case be reviewed and re-examined,” G25 added.
On October 8, newly appointed A-G Tan Sri Mohamed Apandi Ali said the AGC’s decision not to take further action against 1MDB with regard to making inaccurate disclosures to obtain permissions.
He said the decision was made despite the central bank’s appeal for a review, because there had been no additional evidence.
Bank Negara revealed the next day that it had revoked three permissions granted to 1MDB between 2009 and 2011 because of inaccurate disclosures.
Following that, on October 13, Apandi reiterated in a special press conference that since no new evidence was available, there was no need to review the decision not to prosecute the state investor.
But G25 said today the central bank had withdrawn approval to 1MDB under the Exchange Control Act relating to permission for investments abroad and had requested repatriation of the amount kept abroad.
The group added that the money having been spent was no reason that plans for repatriation could not be submitted to the central bank, adding that under the Financial Services Act, Bank Negara had options on further actions to force 1MDB to comply. 
“In the interests of the country and exercising its powers fairly, Bank Negara Malaysia must indeed follow up with the necessary actions under the law. 
“Since the central bank’s action to date is within its powers to take up the civil suit, Bank Negara can, therefore, proceed to act independently without consultation or any manner of involvement of the Attorney-General.” – October 30, 2015.
- See more at: http://www.themalaysianinsider.com/malaysia/article/bank-negara-can-act-against-1mdb-without-a-g-says-g25#sthash.sVnHZMz1.dpuf

Remove A-G’s power to prosecute, says G25


Attorney-General Tan Sri Apandi Ali is both the legal adviser to the government and final arbiter on decisions to prosecute, which leads to a conflict of interest. – The Malaysian Insider file pic, October 30, 2015.

Attorney-General Tan Sri Apandi Ali is both the legal adviser to the government and final arbiter on decisions to prosecute, which leads to a conflict of interest. – The Malaysian Insider file pic, October 30, 2015. 
There is a fundamental conflict of interest in the functions and powers of the Attorney-General which enables him to act against national interests, G25, the grouping of eminent Malays said today, while urging for his prosecutorial powers to be transferred to an independent office of the Director of Prosecutions (DPP).
The group deemed it poor governance that the A-G was the legal adviser for the government and the final arbiter on decisions to prosecute and urged the resolution of this conflict.
It added that the office of the A-G should not combine with the role of adviser to the government and as public prosecutor. 
“G25 would like to recommend the transfer of the prosecutorial powers to an independent Office of the Director of Prosecutions.
“In the same vein, greater safeguards are needed on the appointment and removal of the A-G and the proposed director of public prosecutions,” the group said in a statement, adding that the appointment of the A-G and the DPP should be in the same manner as the appointment of a judge or the auditor general.
The group said this was so that the A-G and the DPP could enjoy security of tenure to be able to carry out their duties without fear or favour and also to be seen as independent.
Likewise, the group added that the removal of the A-G or DPP should be in the same manner as that of a judge or the Auditor-General.
In July, former A-G Tan Sri Abdul Gani Patail, who served as A-G for 13 years from 2003, was removed abruptly from office while part of the multi-agency special task force investigating debt-ridden state-owned fund 1Malaysia Development Bhd (1MDB) and the US$700 million (RM2.6 billion) channelled into the private accounts of Datuk Seri Najib Razak.
He then retired from the judicial and legal service on October 5, a day before turning 60 which is the mandatory retirement age for civil servants.
Gani was replaced by former Federal Court judge Tan Sri Mohamed Apandi Ali.
Earlier this month, Apandi announced the AGC's decision not to take further action against 1MDB with regards to making inaccurate disclosures to obtain permissions.
He said the decision was made despite Bank Negara's appeal for a review because there had been no additional evidence.
Bank Negara the following day revealed that it had revoked three permissions granted to 1MDB between 2009 and 2011 because of inaccurate disclosures, and ordered the state-owned investor to repatriate back its overseas investments totalling US$1.83 billion.
Apandi's announcement drew criticism, with chief 1MDB critic Tun Dr Mahathir Mohamad accusing the A-G of behaving like a judge.
The A-G however reiterated on October 13 that since no new evidence was made available, there was no need to review the decision not to prosecute 1MDB. – October 30, 2015.
- See more at: http://www.themalaysianinsider.com/malaysia/article/remove-a-gs-power-to-prosecute-says-g25#sthash.MzTxmEBR.dpuf

Maria Chin to be charged over Bersih 4



Bersih chairperson Maria Chin Abdullah will be charged in connection with Bersih 4, says an official with the electoral reform movement, official Mandeep Singh.
In a Twitter posting, Mandeep said Maria would be charged under the Peaceful Assembly Act (PAA) next Tuesday.
The 34-hour rally that ended at the stroke of midnight on Aug 31 saw tens of thousands of people taking to the streets to demand Prime Minister Najib Abdul Razak's resignation.
Bersih 4 took a racial twist when detractors zoomed in on the large presence of Chinese Malaysians.
This then led to the Sept 16 red shirts rally to uphold the dignity of the Malays.
Maria shocked and puzzled
Contacted later, Maria expressed shock and puzzlement over the decision to charge her.
“Of course, we gave them (police) the notice of two weeks before (the rally). In fact, it was on Aug 10 that we had a meeting with the police,” she told Malaysiakini.
Bersih 4 was held before the Court of Appeal overruled the precedent set in the case of PKR leader Nik Nazmi Nik Ahmad.
The Nik Nazmi case saw the court declaring that the requirement to provide a 10-day notice prior to holding a rally, as stipulated under the PAA, as unnecessary and unconstitutional.


Read more: https://www.malaysiakini.com/news/317806#ixzz3q2J9PyEK

10 police reports Arul should make

P Gunasegaram  


QUESTION TIME 1MDB, inexplicably, has a great fondness for pointing out leaks relating to itself when it should really be much more concerned with its own, terrible state of affairs and focusing on putting it right while bringing those accountable for the problems to book and obtain restitution.
In fact 1MDB president and group executive director Arul Kanda Kandasamy, who was appointed in January this year to troubleshoot and bring about a revitalised 1MDB, has done precious little of that and is waging a media battle with the likes of DAP’s Tony Pua, almost sounding like an Umno politician in that respect.
And watching him on TV yesterday, he has great presence and is very slick - will make a great politician. But those who know 1MDB well and have followed it over the last few years know that he has not addressed the underlying issues affecting 1MDB, the sources of its problems, and bringing to account the people who brought it to where it is - grovelling for money to pay its debts.
Every time there is a report about 1MDB in the Sarawak Report or the Wall Street Journal or other places, Arul Kanda makes it a point to say that these leakages are against the law and urges the authorities to investigate them. In the true style of a politician, he even made a police report himself against some of these leakages.
But really, he should focus on replying to these leakages, confirming whether they are true or not and what he proposes to do about them rather than engage in endless verbal battles with opposition politicians on the media and at the end of the day say nothing new about 1MDB and the mess it is in.
In fact by now, if he had taken the trouble to investigate properly the issues at 1MDB, he should be quite ready to make quite a number of police reports over things that have happened in the past at 1MDB, bring those responsible to book, and obtain restitution.
10 reports to start with
If he is still at a loss as to what reports to make here are 10 for him to start with:
1. Under pricing of at least some RM20 billion of bonds which could have led to losses of around RM4 billion to 1MDB. To determine why bonds were priced so low when the loans which were backed by the government and other guarantors should have carried much lower interest rates.
2. To investigate who got these bonds cheaply and how and when they disposed off the bonds in the market to make the money they did.
3. A police report against Goldman Sachs for badly advising 1MDB, and perhaps malicious intent in deliberate mispricing of bonds, and for the massive amount that they got in fees amounting to hundreds of millions of US dollars while acting against the interests of 1MDB. Also to determine who in 1MDB colluded with them and to take appropriate action against them.
4. To investigate 1MDB’s investments in PetroSaudi where money was channelled into a dubious investment in the Caspian Sea and subsequently converted to a loan which was then returned. But instead of getting cash, this was invested in the Cayman Islands. And the story goes on and on. Over RM7 billion is involved.
5. To investigate the movement of funds from Cayman Islands to Singapore, to ascertain in what form they are being held and where and whether it is in fact there.
6. To investigate the purchase of power assets in 2012 and 2013 and to ascertain why there was a large overpayment for them and why these assets are now being sold for what could be a loss.
7. To determine how a huge part of a US$3.5 billion loan amounting to some US$1.4 billion was put back as a deposit with International Petroleum Investment Company (IPIC) of Abu Dhabi as a security deposit in return for a guarantee for that loan. Effectively that reduced the funds available to 1MDB from the loan by a huge amount. Also to investigate if a large part of payments went missing as reported by the Wall Street Journal.
8. To determine whether an option to purchase 49 percent in 1MDB’s power assets transferred from IPIC to a related company called Aabar Investments was extinguished at an outrageous price of as much as US$1 billion (over RM4 billion) or more. The entire energy assets were bought at RM12 billion and it is inconceivable that the option would be worth one third of the total price of the assets.
9. To determine whether funds of some US$700 million were moved into the accounts of a company related to Jho Low when it was supposed to go somewhere else and who authorised it.
10. To determine whether such movement of funds were made without the approval of the board and who was responsible for it.
These are just a fraction of the police reports that need to be made to unravel and make sense of 1MDB’s dubious doings and bring to account those who were responsible for this.
That 1MDB is not doing any of these things indicates clearly that the cover-up continues and there is no attempt to deal with the most basic and obvious of the critical issues affecting the company.
Instead, what’s being done is a desperate, mad scramble for cash (why sell energy assets now if not for the cash it brings?) here and there and everywhere to meet debt and interest repayment obligations without a care for a long-term solution to the entire problem.
Clearly, the assets that 1MDB has are not generating enough cash to service its debts and the question that arises is why and what did it do so wrong to have such a severe mismatch between earning assets and heavy debt repayments. And something needs to be done about this without further rolling of assets between the various parties concerned.
Arul the man to handle this?
Is Arul Kanda the man to handle this? We made an assessment of this in January this year when he came aboard 1MDB. And we concluded not, because he is just too close to the people involved in the deals - which include the Abu Dhabi government.
He joined 1MDB directly from Abu Dhabi Commercial Bank (ADCB), where he was executive vice president and head of investment banking. That’s a bank which is Abu Dhabi state owned, as is IPIC and Aabar Investments both of whom have rather convoluted deals with 1MDB.
Given that Arul Kanda is not the best man to deal with 1MDB’s problems, much of which stems from dubious deals with many Middle East parties, including those from Abu Dhabi, that simply means don’t expect 1MDB’s problems to be sorted out anytime soon but instead to be prolonged as much as possible in the hope that time will sort things out.
In this case, given 1MDB’s extremely troubled state, time does NOT heal all and there could be an explosion of problems in future if deals continue to be made to cover up deficiencies.
The sooner we realise that, the sooner there will be a real solution to the epic, unprecedented problem that 1MDB has become.

P GUNASEGARAM is founding editor of KINIBIZ which produces an online business news portal and a fortnightly print magazine.


Read more: https://www.malaysiakini.com/columns/317653#ixzz3q2HZAA37

Budget 2016 at a glance


~ Malaysiakini; Kinibiz

Thursday, October 29, 2015

MACC still hasn't questioned Najib on RM2.6b, two months later

Zikri Kamarulzaman 


The Malaysian Anti-Corruption Commission (MACC) has yet to question Prime Minister Najib Abdul Razak over the RM2.6 billion donation he received, more than two months after the graft buster said it would.
In a written parliamentary reply to Hanipa Maidin (Amanah-Sepang), Minister in the Prime Minister's Department Paul Low said Najib's statement would be taken when necessary.
"As of now, the prime minister's statement has not yet been taken and it will happen when the time comes," Low said in the written reply.
He also said the probe was still ongoing.
At a press conference in the Parliament lobby, Hanipa said the delay was not a good sign.
"The answer is as though they are not investigating. When are they going to call Najib? This is a national and international issue.
"It's been more than two months and they have not called him. The prime minister is the prime person to call," Hanipa said.
In a statement on Aug 5, the MACC said it had questioned the mysterious Middle Eastern donor who gave the RM2.6 billion, and planned to get Najib's statement as well.
The RM2.6 billion is reported to have made its way into Najib's personal accounts shortly before the 2013 general election.
Najib has repeatedly denied using the money for personal gain, and his deputy Ahmad Zahid Hamidi said the donation was made as a sign of gratitude for Malaysia's efforts in combating terrorism.
~ Malaysiakini

Secession can destroy foundation of federation

K Siladass   


COMMENT We have seen that secession in the form of expulsion has indeed taken place, as in the case of Singapore, and that it was initiated by the federal government, with the move not objected to by the other states in the federation of Malaysia.
We have also seen that the federal constitution is silent on secession. The state constitutions, too, have no provisions that can effectively be invoked to seek secession.
This leaves us with the point as to whether secession is a topic that can be canvassed, notwithstanding the fact that it is a question that raises more questions than provides answers.
Generally speaking, secession should not be an issue for discussion because it can destroy the very foundation of the federation.
The political scenario in the late 40s, following the return of the British (after the Japanese Occupation) and the role played by the Malayan Communist Party are worth recalling. There had been calls, too, for the abolition of the monarchy with the creation of a Republic of Malaya.
The swing towards this call could be traced to the political development in Indonesia, coupled with the fact that the communists had no inclination for monarchical institutions.
With the declaration of Emergency and all-out war against the communists, the British administration introduced the draconian Sedition Act in 1948. If we trace the background of the Sedition Act 1948, which was introduced in England, it could be gleaned that its main purpose was to protect the institution of monarchy.
Secession can be an act against the state
The Sedition Act 1948 was used to quell freedom of speech in Malaya and it also effectively outlawed any talk of republicanism in Malaya, which continues even today.
Monarchy is now a part of Malaysia and it is an institution which deserves respect and veneration. The rulers also ought to carry in their bosom love, respect and veneration, which cannot be one-sided and they have to be reciprocated with a benign attitude and rational approach in everything the rulers do.
Apart from the Sedition Act, Section 121 of the Penal Code provides that waging or attempting to wage war or abetting the waging of war against the Yang di-Pertuan Agong, a ruler or Yang di-Pertua Negeri is an offence. We cannot ignore a situation when the attorney-general would construe a call for secession as an attempt to wage war against the Yang di-Pertuan Agong.
It can be seen that the combined effect of the Sedition Act, and the penal provisions in the Penal Code, would indicate that secession could be construed as an act against the state, and therefore, punishable.
The general view would appear that it is indeed difficult to punish the call for secession. This is due to the unsatisfactory state of the law. But, from the practical side, we have seen that the federal government had in fact initiated expulsion; hence by order of things, if expulsion is legal, then a call for secession cannot be legally wrong.
Who can ask for secession?
Whether a demand for secession or an act aimed at secession is an offence or not is a point that would require mature consideration. However, the question that looms at large is, who is entitled to make a call or demand for secession?
The question of secession had arisen in consequence of a statement by the Johor Crown Prince Tunku Ismail Sultan Ibrahim (photo) to the effect that if the agreement made when Johor joined the federation is breached, Johor may withdraw.
This had indeed generated considerable, but cautious, reaction because the statement was made by the crown prince. Since the issue of secession was raised by the crown prince, it must be assumed that nothing said or discussed would be construed as a breach of the provisions of the infamous Sedition Act 1948.
Besides, the Sedition Act itself provides that it would not be seditious if the words spoken (or written) or discussed are in the best interest of the ruler (or rulers).
It would therefore be necessary to look into the constitutional provisions delineating the powers of the state and of the federal government to pass laws.
The legislative powers have been distributed in such a way that under Article 73 of the federal constitution: (a) Parliament may make laws for the whole or any part of the federation and laws having effect outside as well as within the federation; and (b) the legislature of a state may make laws for the whole or any part of that state.
In the light of this particular provision, it can safely be said that only the state legislature can demand secession.
Assuming that a political party in a state decides to secede from Malaysia, legally speaking, it should get sufficient numerical support in the state legislature to pass a law to break away from the federation.
There seems to be no impediment to this form of approach. In embarking upon a call for secession, various factors need to be considered: would the federal government agree to such a course? If it does not agree, what could be the repercussion? Could a state unilaterally declare Independence, just as Rhodesia (now Zimbabwe) did?
Or, would the federal government agree to hold a referendum in the state seeking secession to ascertain or verify the wishes of the people as to whether they want to secede or remain in the federation?
This could be a cumbersome procedure and, taking into consideration the people’s attitude, their mindset and their non-exposure to hard political realities, coupled with the fact that racial and religious polarisation have reached the peak, any campaign towards secession could pit one race against the other, one religion against another or others.
We cannot deny that such a referendum, and the campaign thereof, could be an acid test.
And, for the solution...
It could be surmised that the framers of the constitution had deliberately omitted the thorny issue of secession. This could be due to the confidence they had had in their mind that any dispute could be resolved through an effective form of mediation or through the judicial approach.
It is this confidence that led to the incorporation of provisions in the constitution to enable the judiciary to adjudicate any dispute that may arise between the state and the federation, or between states.
Should any state feel aggrieved by the conduct of the federation, it is always open for that state to seek redress in court; or, if a breach had occurred in the compliance of the constitutional provisions applicable to a state, relief could be had from the court.
In this context, Article 128 of the federal constitution could be invoked, which provides that the Federal Court, to the exclusion of any other court, shall have jurisdiction to determine disputes on any question between the states or between the federation and any state.
Section 81 of the Courts of Judicature Act 1964 complements the aforesaid constitutional provision. It could be safely said that secession is not a solution as the constitution indeed provides a course to resolve disputes arising between states as well as between states and the federation.
Setting up a Constitutional Court
At this juncture it would seem appropriate to consider creating a Constitutional Court with the exclusive jurisdiction to hear cases involving the interpretation of the constitutional provisions and their implementation thereof.
In establishing the Constitutional Court, it should be ensured that the judges are well-versed with the Malaysian Constitution and also constitutions of the other countries with identical provisions.
Most importantly, these judges should respect the spirit of oath under the constitution.

K SILADASS is an advocate and solicitor in practice.


Read more: https://www.malaysiakini.com/news/317622#ixzz3pxmlBccc

Secession - an overt action of a state to get out of a federation

K Siladass 


COMMENT The word secession is derived from the Latin word secessio. It denotes, inter-alia, an action of seceding or formally withdrawing from an alliance, a federation.
Secession is different from partition, which means division of a country into separate autonomous nations. A classic example would be the Republic of Ireland, which was carved out of greater Ireland.
The other example,closer to our region, is the partition of India and the new autonomous State of Pakistan. In 1972, the former East Pakistan seceded from Pakistan and became the independent nation of Bangladesh.
Our own experience is the expulsion of Singapore from Malaysia. It is hard to describe that as secession because Singapore did not want to secede.
Singapore wanted to remain as part of Malaysia, but the federal government under the leadership of the then-prime minister Tunku Abdul Rahman Putra (photo) decided to expel Singapore because of alleged irreconcilable political differences.
It was not a popular decision because even leaders in Umno found it difficult to support Tunku in expelling Singapore. Thus, it cannot be said that Singapore seceded from Malaysia.
Secession is an overt act of person or persons or body of persons who want to withdraw from a federation. It is not partition, and it is not expulsion. Further, the secession of one territory (state) does not necessarily mean the break-up of the federation.
If we are looking at an example, the expulsion of Singapore did not affect the Federation of Malaysia. However, anything akin to secession could lead to the eventual break-up of the whole federation.
Reasons for secession
It is difficult to state what may prompt a state to secede from the federation. We can only look into other countries and see the reasons that had led to secession there.
Each secessionist may have particular reason for withdrawing from the federation. Primarily it could be due to suppressive measures of the federal government against a weak state, prompting the affected state to demand secession.
Unfair treatment - not being treated as equal partner, or the federal government favouring one state than the others, or there is lack of transparency or lack of accountability, or corruption is rife, or there is inequitable distribution of wealth, or the federal government behaves as if it is a colonial master; or, there is complete breakdown in the federal government and the use of repressive measures would destroy the basis of the federation.
We cannot safely say that these are the only grounds that could ignite the desire to secession.
However, there could arise incidents or frictions or disputes between a state and the federation; and instead of resolving them, the federation uses them for its own benefit, thus creating a situation which becomes impossible for a state to remain in the federal unit.
Therefore, there can arise situations unique in their own way, incompatible with the continued existence of the federation.
Perhaps, the reasonable view that can be arrived at is that a federation could last forever, provided the objectives and conditions under which they were created remain intact.
The Malaysian Constitution and secession
However, there could be adjustments in the relationship consistent with changes that take place in the neighbouring countries and in the world, and the changes in the mindset of the people, but the unitive element never questioned or challenged.
The Constitution of the Federation of Malaya, which came into effect on Aug 31, 1957, does not state 'secession'. There is also no reference to secession under the Federal Constitution of Malaysia, which was created by the successful merger of the states of Malaya, Singapore, and the Borneo Territories on Sept 16, 1963. However, since Singapore was expelled on Aug 9, 1965, the question of secession would have to be looked at from a different angle.
Expulsion and secession are two distinct concepts. Expulsion results in consequence of the majority’s decision to expel one state. Secession is an act by a state which finds it difficult to work with the federation, and the federal government in particular, and decides to leave the federation.
Singapore’s expulsion cannot be a precedent
Although Singapore’s expulsion cannot be a precedent to support a demand for secession, it does give credence to the fact that if a state can be expelled, it follows that a state can also legitimately withdraw.
Tunku Abdul Rahman, who engineered the expulsion of Singapore, would not have foreseen that it could develop into a precedent for the future.
Although the constitution is silent over the question of secession, it is said that there is an agreement that the Borneo Territories would not secede. This could give the impression that the merging states could not opt out of Malaysia. Then, what about the states of Malaya? Or, what is the real position after Singapore was expelled?
The difficulty seems too obvious. If it is true that the merging states cannot secede, it follows that none of them can be expelled. Thus, the expulsion of Singapore indicates that the condition not to secede is not absolute.
If the federal government, with the consensus of the states, succeeded in expelling Singapore, it is obvious that a merging state could secede. The federal government had indeed agreed to the course taken towards Singapore, and that has been approved by all the other states.
Perhaps it could be argued that the Singapore question was different, and it does not apply to the other states. We cannot forget the idiom: what is good for the goose is also good for the gander.
Tomorrow: Part II - Can secession be canvassed as a topic in the country?

K SILADASS is an advocate and solicitor in practice.


Read more: https://www.malaysiakini.com/news/317437#ixzz3pwl8w1dI