In law, a line must be drawn somewhere, lest Pandora’s Box opens.
No court will allow the floodgates to open.
The spirit of the law, read with the letter of the law, decides.
In the rule of law, the basis of the Constitution, there’s 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.
Every year, we know from media reports, that the Auditor-General’s Annual Report details various abuses, malpractices and even downright “wrongdoings.”
The Final Report is usually an edited version of the Draft Report or from several Drafts. That doesn’t mean the Auditor-General tampered with the Report.
The media gleefully pounces on the Report and plays up morsels of juicy information to tilltilate and entertain the public bored with the same old Astro programmes and perennial reruns.
Hope springs eternal in the human breast. However, none of the people involved in errant agencies were dragged to court. They are not even disciplined. Instead, they are probably transferred, promoted and given yet another Award.
The KWAP Board of Directors and Management, for example, were not sacked after giving RM4b to SRC International. They are living happily ever after while others, virtually scapegoats, are being dragged to court for this and that because the Attorney-General woke up on the wrong side of the bed.
It’s the same old story every year despite tonnes of advice and recommendations by the “reduced to tears” Auditor-General.
The Auditor-General’s Office isn’t the Attorney-General’s Chambers.
The Auditor-General isn’t a criminal court judge.
It’s unusual that the Auditor-General audited 1MDB, which is a private company owned by the Finance Ministry.
In fact, the Auditor-General’s Report on 1MDB should be discarded as he, it can be argued, has no jurisdiction. A private audit firm should go through 1MDB accounts.
Apparently two firms, KPMG and Deloitte, did audits on 1MDB but the Reports were discarded.
Instead, the focus is on the Auditor-General’s Report and Reports and alleged tampering.
Patently, a song and dance act is being staged on the 1MDB Audit Report prepared by the Auditor-General.
If the Report was allegedly “tampered” with, by this person or that person, it’s being implied that not only the Auditor-General’s Annual Report isn’t tampered with, there isn’t any tampering with the audit reports of various agencies.
In the US, to digress a little, according American scientist Dr Shiva Ayyadurai in several You Tube videos, 60 per cent of deaths in the country are due to medical errors, mistakes, negligence and malpractice. Those are the real causes of deaths.
Eight thousand people die daily in the US, according to pre-pandemic figures. Yet, we don’t find the doctors involved in 60 per cent of the deaths being dragged to court and charged with murder. C’est la vie!
If the hysterical Opposition, and the unthinking media in tow, had not zapped public and investor confidence in 1MDB, the Company would have eventually emerged as perhaps the strongest entity in the Finance Ministry stable.
The IPO, if not aborted in the wake of the Opposition hysteria and unthinking media coverage, would have put 1MDB on a strong financial foundation, driven by innovations i.e. using technology for new ways of doing old things.
AirAsia Group, for example, has embraced this as the Way Forward. It’s no longer an aviation company. It has reinvented itself as a technology company. Likewise, 1MDB would have been a technology company.
The 118-storey Tun Razak Exchange in Kuala Lumpur, for example, is a 1MDB project and the second tallest in the world.
The Opposition, and the media in tow, belaboured in the delusion that 1MDB was set up to plunder the public treasury under various guises.
Nothing may be further from the truth. If the IPO had gone through, the Company would not have fallen back on government guarantees.
Inflated Government Contracts
It’s an open secret that the public treasury allegedly continues to be plundered via inflated government contracts. There have been revelations in Parliament. These contracts go for twice, thrice and even up to ten times what it should cost the taxpayer. The MACC says that it does not do due diligence under the MACC Act. It seems that MACC cases are confined to simple giver and taker situations.
Government contracts, says MACC with a straight face, are not corruption since both parties sign contracts etc etc, inflated or otherwise.
The letter of the law, by itself, isn’t law at all. Where’s the spirit of the law on inflated contracts, read with the letter of the law on contracts?
It’s not known whether IRB taxes inflated contracts.
Bank Negara (Malaysian Central Bank) hasn’t so far taken inflated contracts to court for money laundering. If it had, there would be no names from Malaysia in the Pandora Papers on illicit fund outflows.
Arul Kanda, who has an impressive track record in international finance, was brought in as 1MDB CEO.
If left alone, he would have pulled the Company out of various hiccups and worked with Fund Manager Jho Low, the financial genius behind the amazing 1MDB story.
Let’s not get into day to day internal operational details and who did what and when and for what and how and where.
That’s not for public consumption.
Arul Kanda, Jho Low and Najib continued to be villified by the Opposition, eyeing GE14, and the media in tow, and everything eventually fell apart.
In law, a government on paper can do whatever it wants unless restrained by the court or by the people taking to the streets. The people can’t take to the streets as long as the government keeps the door open for dialogue and the court hears the merits of their Applications.
Abuse of power is a legal minefield.
No court will go into the prerogative and discretionary powers of government and management (it covers private sector as well) unless “abuse can be proven.”
There’s case law from Raja Azlan that states that “prerogative and discretionary powers are not unfettered if abuse can be proven.” The last point is a contradiction in terms.
Abuse of power cases cannot be heard if the court cannot go into the prerogative and discretionary powers of government and management.
The court, generally, avoids abuse of power cases like the plague, and rarely, if at all, considers such cases, and that too grudgingly.
In matters involving Executive privileges, the court cannot go into abuse of power cases since the Doctrine of Separation of Powers stands in the way.
Besides, no court will go into the prerogative and discretionary powers of government and management.
Beyond law in court, and that enforced by the authorities, law may not exist although they exist, albeit on paper.
Law ceases to exist, as if it never existed and if it exists ceases to exist, when it’s bad law, cannot be enforced, or isn’t enforced.
There must be law before there can be crime.
No law, no crime.
The principle that there must be no crime or punishment except in accordance with fixed, predetermined law, finds its Latin expression as nullum crimen sine lege, nulla poena sine lege.
Loopholes and lacuna (gaps) in law are a different matter.
They are even more important than law.
Opinion isn’t law.
Only the court can declare law.
Money laundering cases, for example, are by civil action.
It they are challenged, criminal cases would be instituted.
In law, those who accuse must prove it.
International law has defined the evidence of money laundering as having assets far in excess of what can be legitimately accumulated during a lifetime.
Such assets can be frozen, seized and forfeited by the state by civil action.
Read here . . . – New Malaysia Herald
About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.
Note: The points expressed in this article are that of the writer’s, and do not necessarily reflect the stand of the New Malaysia Herald.
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.