Bhag Singh: Secrets in the House!

There is immunity for members of Parliament against prosecution, except for cases of sedition, and when they communicate ‘official secrets’ outside Parliament.

Excerpt:

"The Constitution does not place any restrictions on freedom of speech in Parliament, but an amendment was made many years later to deny the privilege of any member of Parliament in matters related to sedition.

Except for such cases of sedition, there would thus be immunity for members of Parliament against prosecution.

The principal gatekeeper in this regard is the Speaker of the House, within whose powers it is to allow or disallow questions, answers and comments on what is sought to be discussed.

Such a situation has so far not arisen in the courts of the country for their deliberation. However, it was touched upon in passing in the judgment of the Federal Court in the case of Lim Kit Siang v. Public Prosecutor.

The case arose out of speeches made outside Parliament and articles published based on the statements made by Lim Kit Siang further to his having received information which was indisputably, on the facts of the case, an “official secret”.

During this trial it was suggested that Lim Kit Siang was under a duty, as a Member of Parliament and particularly as the Leader of the Oppo­sition, to disclose such information, especially where it concerned the proper defence of the country.

In deciding that there was no privilege granted to such a person to communicate such information outside Parliament, then Chief Justice Raja Azlan Shah went on to say: “Parliamentary privileges may exempt the appellant from the laws of defamation, so long as the libellous words were uttered within the walls of Parliament, but as he well knows, will not save a member from an action for damages if repeated outside the House.

“We do not consider, since it does not arise for consideration and we do not have the benefit of submissions whether any speech in Parliament revealing official secrets would be caught by the Act, but clearly the duty of the appellant as a Parliamentarian does not include the right to disclose or make available for disclosure official secret information outside the walls of the House to the public at large whatever his motive might be.”

Rest of article in The Star: http://www.thestar.com.my/opinion/columnists/law-for-everyone/2016/11/17/secrets-in-the-house-there-is-immunity-for-members-of-parliament-against-prosecution-except-for-case/

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Bersih 5 rally in Kuala Lumpur

Thankfully, there were no major incidents, but the police arrested several leaders of Bersih, DAP and activists, before, during and after the rally.

As the saying goes, a picture paints a thousand words, here are a couple of pics taken towards the end of the rally, and a link to a video clip, which show the extent of the rally. PM Najib and his team should be worried.

Jaenee Shia shared this pic taken from PBB building by her friend. Another pic from another source would give a better idea of this place near KLCC (junction of Jln P Ramli, Jln Ampang, and Jln Yap Kwan Seng).

Wong Chin Huat shares this pic in Facebook...

 

and a video clip...

https://www.facebook.com/1017943909/videos/10210252412239556/

Bersih 5’s five demands are:

• Clean elections
• Clean government
• Strengthen parliamentary democracy
• Right to dissent
• Empowering Sabah and Sarawak

and in Malay:

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YB William Leong: Two Reasons for Rejecting Budget

Excerpt:

"This article seeks to respond to a few statements circulating in the social media that the opposition voted against the 2017 Budget to prevent the people, especially the poor, from enjoying the benefits bestowed to them by the Finance Minister. There are many reasons the opposition voted against the Budget. I wish to highlight only two. The Finance Minister lacks the legitimacy to be entrusted with the continued management of the people’s money and the 2017 Budget reveals his misplaced priorities.  

  

Lack of Legitimacy

The core of public finances is that some people spend other people’s money. In democracies, voters delegate the power over public spending and taxes to elected politicians.[1] The delegation of power to elected politicians implies that except for those of the highest integrity there are risks the politicians will extract rents from being in office and spend public money on projects other than those voters desire. 

One of the tools for ensuring the people’s money is spent in accordance with the people’s desire is the budget. The budget is a contract between the voters and the Government showing how resources are raised and allocated for delivery of public services. The budget is the primary instrument for implementing fiscal policy thereby influencing the economy as a whole and how the Government plans to turn aspirations into reality.[2] The budget is the reflection of the policy and priorities of those who control and manage government machinery and apparatus at the given time. As a consequence budget transparency and accountability are very important means to truly democratize government and processes of governance. 

Accountability denotes the rights, responsibilities and duties that exist between the people and the government institutions. Accountability and legitimacy are two sides of the same coin. Lack of accountability will result in lack of political legitimacy. Lack of legitimacy will result in democratic deficit and the consequent abuse of power by decisions makers and power-holders.[3]

When Dato Seri Najib Tun Razak refused to resign as Finance Minister following the 1MDB revelations, he plunged his Government into a legitimacy crisis."

Individual Ministerial Responsibility

"The Finance Minister’s loss of legitimacy and credibility is due to his failure to abide by the constitutional convention known as individual ministerial responsibility. A fundamental constitutional convention under the Westminster parliamentary system is that ministers are responsible for the conduct of their ministry. 

The principle of individual ministerial responsibility is central to the parliamentary system because it ensures the accountability of the government to Parliament and thus, ultimately to the citizens as a whole. The accountable minister in charge is expected to take the blame and ultimately resign. This means that if waste, corruption or any other misbehaviour is found to have occurred within a ministry, the minister is responsible even if he had no knowledge of the actions. The principle is essential to guarantee that an elected official is answerable for every single government action. ..." 

Failure to be accountable to Parliament  

"The Finance Minister failed to honour a second aspect of the Westminster principle of individual ministerial responsibility. This is the principle that a minister is accountable to Parliament. Ministers are the link between Parliament and Government. Public servants carry out the activities of Government through their work in department and agencies and the Government directs them through ministers responsible for their activities which include activities by government-owned companies such as 1MDB. The minister is responsible to Parliament for decisions made and actions performed by those under his delegation. This means the minister must make announcements and answer questions in Parliament on the decisions and performance of their departments. ..."

Death of Democratic Governance and Accountability

It is no longer possible for the BN MPs to turn a blind to the wrongdoing in 1MDB. Any denial of wrongdoing is totally not credible in the light of recent revelations by the international media on the US DOJ suit, actions by the Swiss and Singapore authorities to withdraw the licences and to file criminal charges against the banks and officers engaged in the money-laundering of the proceeds from 1MDB. The first conviction and sentence of imprisonment was delivered last week. 

   

Continued survival has been bought by co-optation, propaganda, censorship, repression, prosecution and imprisonment of opposition leaders, activists, lecturers and students. The costs for maintaining power includes sackings, transfers, acts of humiliation and calls to ostracise dissenters and those troubled by their conscience in the UMNO leadership, past and present, the rank and file and Government agencies and institutions.

The 117 BN MPs in voting for the 2017 Budget and 11 PAS abstentions in the face of such legitimacy crisis hammered the final nail into democracy’s coffin in Malaysia. The government transformation programme from democracy to authoritarian regime is now completed. When the 2017 Budget was approved democratic governance, transparency, integrity and accountability in Malaysia died and were buried.

Off-Budget Debt

"The lack of legitimacy continues as the Government enters into one after another mega contract, privatisation and concession. One of the biggest concern in the 2017 Budget is not what is in the Budget but what is not there. It is off-budget funding. Off-budget funding kept outside of government financial regulations, reporting and audit requirements can give rise to illegal and irregular transactions. In addition the use of such funds means the reported level of government expenditure and debt may be understated. 

Off-budget funding may not be contrary to the letter of the law but it violates the spirit of the law. Omitting off-budget funding in the Budget documents offends the principle of providing the public a comprehensive, accurate and reliable account of the public finances. The Budget is a contract of trust between the Government and the citizens. It is expected that the Budget document should account comprehensively and correctly for all expenditures and revenues of the Government and that no figures should be omitted or hidden. ..."

Misplaced Priorities 

"Why does the Opposition bother to debate the Budget? BN with its majority will push through and rubberstamp the 2017 Budget no matter what we say. We soldier on to discharge our constitutionally-mandated duty. Although in the minority, we like the BN MPs, are the guardians of public money. The Government cannot spend a single cent from the Consolidated Fund without Parliament’s approval. By making a stand, it is a reminder that the national coffers are not someone’s personal account. The Government is accountable for wastage, corruption and embezzlement. The Government is required to put on record its justification or the absence thereof in spending the people’s hard earned money and the nation’s scarce resources. In doing so, we put public concerns to bear on the Government’s fiscal and economic policies. It is hoped that by a detailed, focused and considered debate it would improve public understanding of both the process and thinking behind the fiscal measures, their impact on the economy and lives of the people."

Rest of article:    http://williamleongjeekeen.blogspot.my/2016/11/2017-budget-lack-of-legitimacy-and.html

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More on legal aspects of forthcoming Bersih 5 on Nov 19

Street demos have always been our culture, Maria reminds PM

"Street demonstrations have always been our culture just like how Umno has demonstrated against the British before independence, said Bersih chairperson Maria Chin Abdullah.

She was refuting Prime Minister Najib Abdul Razak comment this morning that street demonstrations did not reflect Malaysian culture.

"Umno would not have survived if they hadn’t gone to the streets."

More: https://www.malaysiakini.com/news/363186?utm_source=dlvr.it&utm_medium=facebook

Eric Paulsen:  

Police reminded of existing law to prevent counter rally

"Human rights lawyer Eric Paulsen has reminded the police of an existing provision of law that prevents a counter rally from being held simultaneously with an existing one such as the Bersih 5 rally.

"Dear police, please don't pretend section 18 of the Peaceful Assembly Act does not exist.

"Red-shirts should be ordered to organise (their rally) at another time, date or place," he tweeted last night."

More: https://www.malaysiakini.com/news/363141?utm_source=dlvr.it&utm_medium=facebook

The Malaysian Bar notes that Section 6(2)(j) of the Peaceful Assembly Act contains a provision that mandatorily requires an organiser of a simultaneous assembly or counter-assembly to “ensure that the organisation of the assemblies are [sic] not intended to specifically prevent the other assembly from taking place or interfere with the organisation of such assembly”.

Don't be angry with police this Saturday, IGP warns

"Do not be angry with the police when they take action against those breaking the law during the Bersih 5 rally and the red-shirts' counter-rally this Saturday.

Inspector-general of police Khalid Abu Bakar issued this reminder when he spoke at a press conference after his keynote address at the Seventh Aseanapol Police Training Cooperation Meeting (APTCM) in Cheras today."

More: https://www.malaysiakini.com/news/362886?utm_source=dlvr.it&utm_medium=facebook

IMHO: Bersih did what was necessary but police seems more concerned with technicality to ensure the rally is deemed illegal, so that police can act tough. Why not detain Jamal the chief trouble maker on rally day to prevent trouble? He can have his own rally on another day. That IGP cannot act fairly will certainly make people angry.

Update: 

IMHO: It is likely the police will ignore this statement from Suhakam. We shall see come tomorrow.

Meanwhile...

Chief sec's threat over attending rallies 'unlawful' - ex-judge

"A former Federal Court judge has rapped chief secretary Ali Hamsa's threat against civil servants participating in the Bersih or red-shirts rallies tomorrow as unconstitutional.

Retired judge Gopal Sri Ram was reported by Free Malaysia Today saying civil servants had a right to exercise their constitutional right to assembly as long as it did not interfere with their professional duties.

“Participation in a rally is a right conferred under article 10 of the Federal Constitution and any restriction is absolutely void,” Sri Ram was reported saying today.

Ali yesterday said the Public Services Department would not hesitate to act againstcivil servants who are captured in photographs of the rallies published by the media, according to Bernama.

He said those found involved in the rallies face disciplinary action including a pay cut or sacking.

According to FMT, Sri Ram said the order was a "disproportionate incursion against a constitutional right".

“You do not use a sledgehammer to kill a fly and the response from Ali is not proportionate to the harm intended to be dealt with,” he was reported saying.

“The circular is like administering a poison to cure a common cold."

Therefore, he said, the order is null and void."

More: https://www.malaysiakini.com/news/363280#ixzz4QKHyrg8b

It would seem, to the civil servants, attending Bersih rally is more serious than those having committed crimes. The latter only get transferred.

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Reality check: Our so-called parliamentary democracy is like having a car which does not work?

From write2rest blogsite:

Why is Bersih 5 calling for strengthening of parliamentary democracy?

Our constitution does not include the word ‘democracy.’ So why is “strengthen parliamentary democracy” included in the demands of Bersih 5?

According to Reference.com:

A parliamentary democracy is a form of government where voters elect the parliament, which then forms the government. The party with the most votes picks the leader of the government. Prime ministers are beholden both to the people and the parliament.

Malaysia only somewhat fits that description.

Why? Negatively, because Parliament is made up of the Agung, an Upper House (“senate”) and a Lower House (“parliament”) – and only members of the lower house are elected by voters. Positively, because our government is formed by those who are elected to the lower house (though augmented by non-elected senators).

However, our law does recognize that we are a parliamentary democracy. The best known example of this is found in Section 124B of the Penal Code:

Whoever, by any means, directly or indirectly, commits an activity detrimental to parliamentary democracy shall be punished with imprisonment for a term which may extend to twenty years.

This is not the place to discuss that odious law. If you want to know more, you can read this excellent discussion by the Bar Council, issued on the occasion of 17 arrests in 2015.

So, we may say correctly that Malaysia practices parliamentary democracy because one of the three members of our law-making triumvirate has members elected by voters, and the term “parliamentary democracy” has a place in our laws.

What aspects of a parliamentary democracy may make it fake rather than real? 

That’s an important question because it’s the difference between having a car and having a car which works. For instance, from 1969 to 1971 we had a parliament which didn’t meet because it was suspended through the enactment of an emergency. MPs were in prison! During that period we had a non-functioning parliamentary democracy.

There are many things which make our parliament more like an engine-less car than a car which does productive work. I’ll just list five.

First, our Parliament doesn’t meet often enough. The parliaments of Australia and the UK sit for at least 150 days a year. For our parliament, MP Liew Chin Tong has published the number of sitting days for the period 2008-2015. The range is 51 days (in 2013) to 83 days (in 2010), giving an average of 67 days/year over 8 years. This means MPs in Australia and UK attend parliament more than twice as often as our MPs.

Second, our backbenchers don’t scrutinize the cabinet. Cabinet is made up of the PM, Ministers and Deputy Ministers. Backbenchers are ruling party MPs who are not in the cabinet. In Malaysia, parties offer candidacy solely as a “reward” for loyalty to their party leaders and keeping the grassroots quiet. That’s not how it’s supposed to be. The work of parliament is to review, monitor and supervise the cabinet and public agencies. Loyalty is important, but so is competence. We need better candidates.

Third, most backbenchers and opposition MPs do hardly any parliamentary work. In Taiwan, every MP is required to be a member of a standing committee. Standing committees oversee ministries. Ministers and deputy ministers are not allowed to be members of the committees. Instead, standing committees can summon Ministers, department heads and others to attend hearings to answer questions on policy and administration. The hearings are often public. Select committees also review and refine laws and policies before they are debated in the main chamber. Aside from committees which deal with internal matters like discipline and membership, our parliament has only one standing committee: the Public Accounts Committee (PAC) – which did such a pathetic job reviewing 1MDB compared to the work of the Department of Justice, USA.

Fourth, the quality of debate in parliament is terrible. There isn’t enough time for MPs to digest the laws they have to debate and vote on because they are only given materials to read at the very last minute. This means they not only don’t have time to read the bulky materials, they also don’t have time to get local data, get feedback from their constituents and also learn how similar matters are addressed in other nations. This is why parliament not only never gets through the agenda for each sitting, but also has to “extend the clock” often and sometimes debate till 5 in the morning.

Fifth, the government does not treat opposition MPs with respect. Opposition MPs have hardly any office space in parliament and their leader isn’t treated with dignity at official functions – although she represents the side of the house which got more of the popular vote than the government (51% vs 47%). A functioning parliament will allow time for opposition business – so that opposition MPs can truly represent the people who voted for them because they thought these were the better candidates.

Finally, we note that RM18billion or 7.6% of the national budget for 2016 is assigned to the Prime Minister’s Office! This, a feature of Presidential systems, is the best proof that our parliament is a fake.

We need to strengthen parliamentary democracy. Jom Bersih!

Source: http://write2rest.blogspot.my/2016/11/why-is-bersih-5-calling-for.html

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