The SRC Trial: Is There A Miscarriage Of Justice?

For many of Najib Razak’s supporters and family members, last week was a truly miserable moment. Not only did the Court of Appeal (COA) on 08 December upheld his SRC conviction, the day prior to that, he failed in a bid to introduce fresh evidence that may have a bearing on the judgement if the said evidence were accepted and deliberated upon.

However, what really angered these undaunting supporters as can be seen on their Facebook rants was the branding of his actions as a “national embarrassment.”

At the same time, Najib’s legal team, headed by Muhammad Shafee Abdullah, took exception to such strong words coming from the Court of Appeal. He was of the view that those remarks were unnecessary and uncalled for.

In addition, he said that although he respectfully accepts the court’s decision, he was disappointed that the court had held that there was personal interest on the part of his client in the approval of the government guarantee in relation to the RM4 billion Retirement Fund Incorporated (KWAP) loan to SRC International.

Najib also expressed disappointment at the COA decision. “The central issue in respect of the SRC case is that RM42 million was transferred into my personal account. As a Muslim, in the name of Allah, I do not know and had never instructed anyone to transfer the money to my personal bank account,” he said during a Zoom conference organised by Shafee.

Najib’s daughter, Nooryana Najwa (Yana), expressed regret at the outcome of the COA decision. “Of course we are disappointed. The court’s rejection of DSN’s bid to cite new substantial evidence was a missed opportunity to uncover crucial missing pieces of the puzzle.

“The very fact that MACC reported on the extent of Zeti, Nor Mohd Yaacop and Nik Faisal’s involvement as early as 2019 but was not made known to the defence shows a clear suppression of evidence – evidence that could turn the tide of the trial in DSN’s favour,” she said to NMH.

No Stone Unturned

Yana expected the judiciary, in the name of justice, to leave no stone unturned. She added that the defence submitted 355 points of contention during the appeal stage, but not even one point was considered in the final judgement.

“We are fortunate to have a father who is a deep man of faith, calm and resilient. We are so proud that he is taking all these trials and tribulations in his stride. We have been by his side thus far and will continue to soldier on with him.”

Yana said that despite all the legal obstacles, he remains steadfast and headstrong with a purpose to serve the rakyat whom he loves very much. “We have witnessed him juggle the demands of attending court for long hours while serving his constituents as Pekan MP, continuously voicing out bread and butter issues and working on the ground for BN during election season.”

“Dad is determined to clear his name through the legal process. He does not expect any special favours from higher authorities. All he asks for is FAIRNESS. And so far, I believe and many would agree with me, he has not been granted a FAIR chance,” said this Harvard graduate who was in Singapore with her family during the time of the COA judgement.

But what about the law? Many learned legal eagles have given their opinions. Interestingly, NMH came across this blog post by former journalist Joe Fernandez.

In his post in the fernzthegreat blog, he said that many lawyers are saying on FaceBook that the former premier should be denied leave by the Federal Court to Appeal on the RM42m SRC International case in the Court of Appeal on Wed 08 Dec 2021.

The Principles Of Natural Justice

“That’s tantamount to denying due process and thereby violates the principles of natural justice.

“The lawyers argue that “there were no errors in facts and no errors in law” in the High Court and Court of Appeal Rulings on the Submissions — it’s about looking for the law and pointing it out — by both sides.”

The Jury may still be out on whether the Rulings were confined to the Submissions. Any evidence of the Court going off at a tangent or misreading the Submissions renders the Ruling/s tainted in law and therefore unsustainable.

Joe added that the case is about the facts, issues arising, and law applicable.

“The letter of the law, by itself, isn’t the sum total of the rule of law.

“The University of London cautions law students that “it’s not possible for anyone to know law.Law students are first marked for their command of the English language, evidence of wide reading, and the ability to think like a lawyer. Law, ultimately, is the power of language. There are no right or wrong answers in law exams. There’s no place for emotions in law.”

Joe added that Chief Justice Richard Malanjum had warned lawyers and the court, in a farewell address not so long ago, against the letter of the law being taken in toto as the rule of law.

In the rule of law, the basis of the Constitution, there’s a greater emphasis on the spirit of the law, read with the letter of the law.

The letter of the law, by itself, isn’t law at all.

He said that the RM42m charge cannot stand since Najib did not derive personal benefit from the money.

“The court has the names of those who derived benefit from the RM42m which was transferred from SRC International, either directly or indirectly, to Najib’s personal account/s.

“It’s beside the point whether Najib directed that the RM42m be transferred to his personal account/s. Circumstantial evidence is inadmissible in a criminal case. We don’t really know what happened,” Joe said.

High Court judge Mohd Nazlan Mohd Ghazali said that Najib didn’t return the RM42m. “This point wasn’t raised by the Prosecution in Submission and the Judge shouldn’t mention it. I stand corrected.

“The issue doesn’t arise since the former Prime Minister didn’t spend the money on himself. Others, rightly or wrongly, received the money. If there’s proof that Najib derived personal benefit from even a small sum of the RM42m, the actual sum should be reflected in the charge, not RM42m. That wasn’t done,” he added.

Joe stated that that being the case, the RM42m charge cannot stand, therefore the related charges too can’t stand when the Full Bench, seven to nine Judges, meet in the Federal Court.

“Since the RM42m charge cannot stand, the RM210m fine is null and void.

“If the RM210m fine is null and void, the 12-year jail sentence was unlawful and must be quashed,” he said.

Joe went to say that RM42m isn’t a large enough amount to merit money laundering charges.

“Money laundering has been defined in international law as having assets far in excess of what can be legitimately accumulated over a lifetime.

“Such assets can be frozen, seized and forfeited by the state under civil action. Look at the DoJ cases in Malaysia. Criminal suits will only be instituted if the civil action is challenged.

“Najib’s case is criminal, not civil,” Joe concluded

Civil Action

“If the AG felt that money laundering was involved, he should have initiated civil action.”

Joe questioned: Where’s the spirit of the law in the High Court and Court of Appeal Rulings?The court is only about law, not truth.

Witnesses swear to tell the truth, the whole truth, nothing but the truth and mostly lie all the time. There is a law on perjury — lying under Oath — but it’s seldom enforced except perhaps in murder cases.

Generally, the man in the street isn’t aware the court isn’t about ethics, moral values, theology, sin, God or justice (the principles of natural justice remains separate from being dragged to justice i.e. the court).

Thesis Statement

Joe added that many people are missing the thesis statement on Pardon.

The US President allegedly pardons every Tom, Dick and Harry — for want of a better term — even before there is a miscarriage of justice and/or charges are laid.

When family, relatives, friends and cronies are pardoned, they don’t come under political considerations, but clearly the relationship with the President.

Likewise, there can be no court against Agong if he grants a Pardon.

The miscarriage of justice remains the reason for Pardon.

Whether there was really a miscarriage of justice is beside the point. The matter is nonjusticiable.

Having said that, the allegedly tainted court Rulings against Najib, based also on allegedly highly personal and offensive remarks by the judge/s, are unsustainable in law.

The principles of natural justice come into play.

Separation Of Powers

“I won’t go into the Jurisdiction of the Court and whether there was misdirection. The Doctrine of Separation of Powers refers.

“It has been argued that SRC International, although owned by the Finance Ministry, is a private company. No court will go into the prerogative and discretionary powers of gov’t and management.”

There is a case law by Raja Azlan Shah that such powers are not unfettered if abuse can be proven.

Generally, the court is reluctant to consider abuse charges and rarely does so, if at all, and grudgingly. Abuse charges cannot be proven if the court does not go into the merits of the case.

In mitigation, Najib has been in public service for most of his life. “Malu apa BossKu.” (Nothing to be ashamed about, My Boss!)

S. 87(1) of the Court of Judicature Act 1964 says that if the criminal case originated in the High Court (i.e. the court of first instance ), the case can go on appeal all the way to the Federal Court and Review.

According to Joe, Malays don’t think that Najib will be locked up for 12 years and suffer further jail in default after failing to pay RM210m fine, and the wife will be in the cell next door.

“When Najib returns as Prime Minister, Mahathir and his family will probably be dragged to justice for alleged money laundering. It was this fear that made Mahathir block Anwar Ibrahim from becoming Prime Minister.

“It is the guilty conscience that kills. Mahathir stays in a glasshouse and throws stones. In the latest outrage, he said that Najib will be the first convict to be Prime Minister. That’s contempt of the Istana.”

Kerana mulut, badan binasa . . . it’s the mouth that brings misfortune.

Anwar had publicly sworn after he was sacked as Deputy Prime Minister, Deputy Umno President and Finance Minister in 1998, that he will drag Mahathir and his family to justice for alleged money laundering.

Najib once said that if Mahathir can be Prime Minister for 22 years, he can also serve for that many years. Mahathir was in fact Prime Minister for 24 years i.e. including from Thurs 10 May 2018 to Mon 24 Feb 2020. He was Prime Minister from 1981 to 2003.

Najib was Prime Minister for nine years from 2009 to 2018.

Task Force

Joe is of the opinion that if a Task Force can be set up on Attorney General Tommy Thomas remarks on the judiciary in his Memoirs, “My Story: Justice in the Wilderness”, another Task Force should be set up on Chief Justice Richard Malanjum’s farewell address on lawyers and the court and the rule of law.

Malanjum clearly stated that he cautioned lawyers as well as the court numerous times that “the letter of the law isn’t the sum total of the rule of law”.

Tommy Thomas has alleged abuse of power in the appointment of judges, excessive interference by the executive in the judiciary, political and selective prosecution, and breach of oath of confidentiality.

The former AG is likely to challenge the appointment of former Sarawak attorney-general Fong Joo Chung as head of the Task Force.

“All isn’t well with the legal fraternity, the court and the judiciary in Malaysia. There should be a Royal Commission of Inquiry (RCI) on the state of affairs.

“The talent pool in law should be expanded, as in other countries, by having a Common Bar Examination and allowing non-law degree graduates to enter the profession through six months to 18 months law conversion courses.” – New Malaysia Herald