Incompetent application for Disaster Duo

Federal Court today decided that the appeal of Disaster Duo Khairuddin Abu Hassan and Matthias Chang to cite the Attorney General for their arrest under Security Ordinance (Special Measures) Act 2012 (SOSMA) as “Incompetent” and threw it back for the Kuala Lumpur High Court to decide on the three issues raised for their arrest.

NST story:

Fed Court dismisses constitutional challenge by Khairuddin, Chang

BY KHAIRAH N. KARIM – 3 NOVEMBER 2015 @ 2:30 PM

PUTRAJAYA: The Federal Court has ordered the High Court to decide on three constitutional questions regarding the charges under the Security Offences (Special Measures) Act 2012 against sacked Umno Batu Kawan deputy divisional chief Khairuddin Abu Hassan and lawyer Matthias Chang.

A five-men bench led by Chief Justice Tun Arifin Zakaria made the decision after allowing the prosecution’s preliminary objection (PO).

The court ruled that the application to refer the questions to the Federal Court was incompetent and did not comply with Section 84 of the Courts of Judicature Act 1964.

“We agree with the prosecution that the application is incompetent and does not go with Section 84,” Arifin said adding that the reference made should be remitted back to the High Court to decide.

He fixed Nov 5 for the matter to be heard at the High Court.

The other four judges presiding on the panel were Court of Appeal president Tan Sri Md Raus Sharif, Tan Sri Ahmad Maarop, Tan Sri Hasan Lah and Datuk Ramly Ali.

Earlier, the prosecution led by deputy public prosecutor Awang Armadajaya Awang Mahmud raised a PO against the reference by the High Court to the Federal Court. Awang submitted the PO on grounds that the three questions referred to the Federal Court did not comply with Section 84 of the Courts of Judicature Act 1964.

“There was nothing in the affidivit that shows that the questions referred was one that ‘a question arises as to the affect of constitution’,” he said in asking the court to dismiss the referrence and remit it back to the High Court for trial to proceed. Counsel Mohamed Haniff Khatri Abdulla who acted as Khairuddin’s lead counsel had asked the court for an interim bail.

However, that was rejected by the court on grounds that bail should be decided by the High Court since it involved the liberty of a person.

Meanwhile counsel Zainur Zakaria acted as lead counsel for Chang. On Oct 19, the High Court referred the three questions on constitutionality to the Federal Court on whether the charge could be tried under the Security Offences (Special Measures) Act 2012 (SOSMA).

The three questions were:

1) Does the charge against the accused persons under Section 124L of the Penal Code fall outside the constitutional ambit of Sosma 2012, pursuant to the provisions of Article 149(1) of the Federal Constitution.

2) If the answer to Question 1 is in the affirmative, do the accused persons have the right to be released on bail forthwith?

3) If the answer to Question 1 is in the negative, should the trial of the charge against the accused persons be conducted in the Sessions Court taking into account the sentencing provisions under section 124L of the Penal Code?

Oct 12, Khairuddin and Chang were charged at the Kuala Lumpur magistrate’s court with attempted sabotage of the state’s banking and financial services.

The duo were alleged to have committed the offences in five countries; France, the United Kingdom, Switzerland, Hong Kong (China), and Singapore between June 28 and Aug 26.

They may be jailed up to 15 years if found guilty under Section 124L of the Penal Code. Both of them were not granted bail as they were detained under Sosma.

Read More : http://www.nst.com.my/news/2015/11/fed-court-dismisses-constitutional-challenge-khairuddin-chang

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On 19 October 2015, Kuala Lumpur High Court pushed the case to the Federal Court to decide.

Bernama story:

High Court refers Khairuddin and Chang’s Case to Apex Court

19 October 2015 | Source: Bernama
KUALA LUMPUR, Oct 19 (Bernama) — The High Court today has referred former Batu Kawan UMNO division vice chief Datuk Seri Khairuddin Abu Hassan and lawyer Matthias Chang Wen Chieh’s case to the Federal Court to determine whether the charges they faced are triable under the Security Offences (Special Measures) Act 2012 (SOSMA).

Judge Datuk Mohd Azman Husin said the court will forward three questions on constitutional issues to the Apex Court soon, among others, does the charge against the accused persons as tendered before this court under Section 124L of Penal Code, fall outside the constitutional ambit of SOSMA?

“If the answer to the first question is in affirmative, do the accused persons have the right to be released on bail forthwith?

“If the answer to the first question is in negative, should the trial against the two accused, be conducted in the Sessions Court taking into account the sentencing provision under Section 124L of Penal Code?,” he said.

The judge made the ruling after hearing submissions from defence lawyers Mohamed Hanif Khatri Abdulla and Zainur Zakaria and Deputy Public Prosecutor Mohd Masri Daud and Mohamad Abazafree Mohd Abbas.

The duo had on Oct 13, filed a motion under Section 35 of Courts of Judicature Act 1964, at the High Court seeking several orders from the High Court, among others, that the charge against them under section 124L of the Penal Code does not fall under SOSMA and therefore, wanted the court to release them on reasonable bail.

Khairuddin, 53, and Chang, 65, were charged with attempting to sabotage Malaysia’s banking and financial services under Section 124L of the Penal Code (Act 547) read with Section 34 of the same Code, which carries a jail term of up to 15 years upon conviction.

He allegedly committed the offence at five locations between June 28 and Aug 26, this year.

The locations are the office of the France Economic and Financial Crimes Division chief in Paris; Charing Cross Police station, London, United Kingdom; office of the Switzerland Attorney General in Bern; WaiChan Police station, Hongkong and Cantonment Police Headquarters, Singapore.

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The Federal Court decision put forth the matter is yet to reach the Apex Court level, to be deemed as a matter of constitutional dispute. Hence, the matter should be argued at High Court.

A synopsis of Article 149 which is part of basis for the first question:

Article 149: Legislation against subversion, action prejudicial to public order, etc.
149. (1) If an Act of Parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation—

(a) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property; or
(b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation; or
(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence; or
(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or
(e) which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof; or
(f) which is prejudicial to public order in, or the security of, the Federation or any part thereof,
any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament; and Article 79 shall not apply to a Bill for such an Act or any amendment to such a Bill.
(2) A law containing such a recital as is mentioned in Clause (1) shall, if not sooner repealed, cease to have effect if resolutions are passed by both Houses of Parliament annulling such law, but without prejudice to anything previously done by virtue thereof or to the power of Parliament to make a new law under this Article.

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One of the laws enacted by the Malaysian Parliament to revoke the Constitutional right of a citizen was the Internal Security Act (1960). It has since been rescinded and replaced with SOSMA 2012.

Security Offices (Special measures) Act 2012, also known as SOSMA

Security Offices (Special measures) Act 2012, also known as SOSMA

This is a landmark case indeed. The acts of the Disaster Duo have been echoed by global media, which somewhat caused some degree of effect on the confidence of doing business in this country.

 

Published in: on November 3, 2015 at 19:34  Comments (1)  

The drama ends with the chicken roasted

Speaker of Dewan Rakyat Tan Sri Pandikar Amin Mulia threw an ultimatum if Government pander on the chickenish sordid drama by DAP Strategist and Petaling Jaya MP Tony Pua challenging 1MDB Group Executive Director Arul Kanda for a live tv debate.

Pua is a member of the Public Accounts Committee (PAC) and it is believed that he would use some of the privileged information obtained as part of the investigation and process of scrutiny.

This is on top for matters which are privy to the ongoing investigation by the Parliamentary committee could be deemed subjudice to the case.

NST story:

Pandikar tells govt: Stop Arul-Pua debate or I’ll resign

BY NURADZIMMAH DAIM –

3 NOVEMBER 2015 @ 1:00 PM KUALA LUMPUR:

Dewan Rakyat Speaker Tan Sri Pandikar Amin Mulia has issued an ultimatum to the government: stop the planned debate between Arul Kanda and Tony Pua or else he will resign.

“If the government still goes ahead with the debate, I will not get involved.. I will resign as Speaker,” he said in Parliament today after much prodding by several members who had questioned the conditions posed by the House for the debate.

The proposed debate between Arul, who is 1Malaysia Development Bhd (1MDB) president, and DAP lawmaker Pua, had generated a massive amount of publicity over the last week.

Pua, a member of the Public Accounts Committee (PAC), had been vocal in his criticism of 1MDB’s affairs, setting the stage for the debate.

Pandikar however, questioned the need for such a debate. He felt that PAC’s probe into 1MDB should handled in a proper manner.

“What is the problem if PAC carries out its investigation and subsequently tables the report… can’t Malaysians wait until the investigation by PAC is done?

“Petaling Jaya Utara (Pua) is also in PAC, and Arul also will be called up by PAC. Why the rush? Will the debate get a conclusive answer?

“The answer is no. We also know that the investigation report by PAC on 1MDB will also be presented to the House Committee,” he said.

Pandikar had earlier told the House that parliament would not stop the debate between Arul and Pua, provided that Pua either resigns from PAC or excuses himself from PAC’s 1MDB-related proceedings.

He had also specified that Arul should not be involved in the investigation. “Standing Order 23(1)(e) states that members are not allowed to give statements without the consent of the House committee. So, the debate in this matter is against the Standing Order since the matter is still being investigated by PAC.

“The planned debate on TV will give space to discuss the matter and is premature as the (1MDB) invesigation is still ongoing. It will affect PAC and attract prejudice of the credibility of both parties (involved in the debate).

“Furthermore, the tendency to accuse a person’s character is not allowed by Standing Order 23(1)(o).”

Pandikar also reminded the House that the role of a PAC member is that of an investigator, not a prosecutor, referring to Pua.

Read More : http://www.nst.com.my/news/2015/11/pandikar-tells-govt-stop-arul-pua-debate-or-ill-resign

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The concern the Speaker raised is valid and the process of investigation and scrutiny is actively ongoing and yet to be conclusive, let alone to be tabled to PAC.

However, DAP was quick to react by offering another MP to debate against Arul.

NST story:

If Pua can’t debate, we’ll replace him with someone else, says DAP

3 NOVEMBER 2015 @ 2:00 PM

BY MINDERJEET KAUR

KUALA LUMPUR: DAP will nominate one of its members to replace Tony Pua in the proposed debate against 1Malaysia Development Bhd (1MDB) chief Arul Kanda.

The Opposition party’s chief whip Anthony Loke said, should Pua be disallowed from taking part in the debate by virtue of his position within the Public Accounts Committee (PAC), the party would place another candidate for the debate.

Loke said they want the debate to go ahead as scheduled.

“As the chief whip, I do not agree that Pua should resign from the PAC to make way for the debate,” he told a press conference at the Parliament lobby today, just minutes after Speaker Tan Sri Pandikar Amin Mulia announced the conditions for the Arul-Pua debate.

He said DAP feels Pua should remain as a PAC member to investigate and be part of the 1MDB probe proceedings.

Loke also questioned the new conditions imposed, which include requiring Pua to resign as a PAC member in order to take part in the debate.

“Is this a political strategy by Barisan Nasional? At first they say they do not oppose the debate. They pretend they are not afraid. Now the Speaker says it is not allowed under the Standing Orders,” he said.

Selanjutnya di : http://www.nst.com.my/news/2015/11/if-pua-cant-debate-well-replace-him-someone-else-says-dap?m=1

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The point is that DAP is not at all interested in the truth but to do as much as they can to demonise Prime Minister Najib and administration, as part of the strategy to deny the interest and aspiration of the majority and alleviate themselves as a minority to govern the nation.

Published in: on November 3, 2015 at 14:30  Comments (2)  

Lessons to Paracels XXV: Bald Eagle and Panda must explain the showing of claws

Defence Minister Dato’ Sri Hishammuddin Hussein wanted United States and China to explain their recent project of force in an international waterway which is supposed to be a zone of peace, freedom and neutrality (ZOPFAN).

The Malay Mail online story:

Hishammuddin: Malaysia to seek explanations from China, US over presence of warships near Spratly Islands

Monday November 2, 2015
10:24 PM GMT+8

 

 

KUALA LUMPUR, Nov 2 — Malaysia will seek explanations from China and the United States (US) over the presence of their warships in Spratly Islands, during the Asean Defence Ministers’ Meeting (ADMM) Retreat and 3rd ADMM-Plus which kick off in Subang tomorrow.

Malaysia’s Defence Minister Datuk Seri Hishammuddin Hussein said he strongly believed that the latest development on that particular issue would be brief by his counterparts, General Chang Wanquan from China and US Secretary of Defence Dr Ashton Carter during their meeting.

“I will be looking forward to be briefed on the latest development if it really involved the movement of assets between both sides.

“It is very difficult for me to say anything now because I’m not sure what is the latest development on the issue,” he told a press conference today after the final-round inspection of preparations for the ADMM Retreat and ADMM-Plus from Nov 3 to 5 in Subang, near here.

It was reported that the controversy centred on a swath of territory in the South China Sea that contains the Spratly Islands when Chinese officials condemned a US ship’s passage near the disputed islands recently.

Asked whether Malaysia welcomed United States’ challenge on China over the disputed islands, Hishammuddin said he only welcomed any movement that would not disrupt stability in this region.

China, Taiwan and Asean members, namely the Philippines, Malaysia, Vietnam and Brunei, have been wrangling over ownership and control of the South China Sea, a resource-rich and busy waterway, in a conflict that has flared on and off for decades.

Hishammuddin said the 10 Asean countries should be united as a bloc.

“That is something that I put as my responsibility as long as I chair the Asean (Defence Ministers’ Meeting),” he said.

On another note, he said the Asean countries were closely monitoring the situation in the world, especially on what was happening in Ukraine, Syria, Iraq and other parts of the Middle East, and in other countries.

“As our region’s stability will also depend on how they conduct themselves in other parts of the world, I don’t think that what is happening there cannot replicate here,” he said.

ADMM is the highest defence consultative and cooperative mechanism in Asean on matters related to defence.

It is aimed at promoting mutual trust and confidence through greater understanding of defence and security challenges, as well as enhancement of transparency and openness.

Asean groups 10 countries, namely Malaysia, Brunei, Cambodia, Indonesia, Laos, Myanmar, the Philippines, Singapore, Thailand and Vietnam while its eight dialogue partners in the Asean Plus are Australia, China, India, Japan, New Zealand, South Korea, Russia and the United States.

ADMM Plus meeting will be on “Asean — Maintaining Regional Security and Stability For and By the People”. — Bernama

– See more at: http://www.themalaymailonline.com/malaysia/article/hishammuddin-malaysia-to-seek-explanations-from-china-us-over-presence-of-w#sthash.moTfMIG8.dpuf

 

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It is imperative for mutual trust and co-operation between Defence Ministers with ASEAN plus China and United States to be truthful on their apparent agenda of projection of force.

The ASEAN Defence Ministers Meeting should also push forward the implementation of the Code of Conduct (COC), which ASEAN including China inked the Document of Conduct (DOC) in November 2002 which to adhere the UNCLOS 1982.

The Document of Conduct (inked 2002)

The Document of Conduct (inked 2002)

Part of COC is to have proviso to deal with multiple claims on territories and it should be sorted out multilaterally, having all vested parties involved in the process.

Current, China is interested to have multiple bilateral talks with multiple claimants on disputed territories, which is not as outline under UNCLOS.

Fiery Cross Reef, which is Cina PLA-Navy newest military installation in the disputed territories which the China name as the 'Nine-Dash-Line'

Fiery Cross Reef, which is Cina PLA-Navy newest military installation in the disputed territories which the China name as the ‘Nine-Dash-Line’

It is obvious that China wanted to have the position and advantage of arm-twisting when they engage in a bilateral talks on multiple claims between two nations. It is no brainer what the outcome shall be.

Last week, it was reported US Navy Arleigh Burke Class destroyer USS Lassen patrolled 12 nautical miles off Fiery Cross Reef, a China PLA-Navy massive military installation on an artificial island on a reef.

Amongst other things, these tit-for-tat projection of force is to provided the psychological effect if and when the bi-lateral or multilateral talks should begin.

China re-excerted her claims over the fictitious and unlawful claim of ‘Nine-Dash-Line’ and since modernising the China PLA-Navy in 2008, the communist state in far east has shown their aggressive tendencies of occupational traits. It started with the occupation of the Paracel Islands in january 1974 and later Scarborough Shoals.

A detailed map of China's claims into ASEAN nations' EEZ

A detailed map of China’s claims into ASEAN nations’ EEZ

Regardless, any parties weaving a loaded gun walking back and forth in front of our yard sends uncomfortable vibes if a cold sensation along the spine.

South China Sea is the second most important trade waterway globally and most of it falls within Malaysia’s exclusive economic zone (EEZ).

Published in: on November 3, 2015 at 00:15  Comments (1)