Federal Court Appeal on SRC conviction may not turn up surprises.
It was a strange turn of events when the Judiciary lodged a police report on contents carried by a Blog and an online news portal. See here. And here.
This too.
It was not immediately clear whether the Judiciary interviewed Judge Nazlan or conducted an Internal Inquiry before lodging a police report.
The Federal Court has also rejected former Prime Minister Najib Abdul Razak’s bid to adduce fresh evidence which includes Judge Nazlan and former Bank Negara Governor Zeti Akhtar Aziz and family members.
The police report places the Judiciary in a predicament. It’s not widely known that the Magistrate’s Court also functions as the Police Court, among others. If the police appear to sit on a report, and it’s often the case according to the social media, the person affected can follow up with a complaint at the Magistrate’s Court. The Magistrate would summon the police for an explanation. The person who lodged the report would have to be present as well. It’s inconceivable that the Judiciary turns up at the Magistrate’s Court on the police report they lodged.
Kicking The Can
Having said that, it would appear that the police report merely kicks the can further down the road. The Federal Court can avoid visiting the matter on the grounds that “it’s under police investigation”. If anyone is charged, it would be the Editor in Chief of the online news portal and the Owner of the Blog. It’s difficult to see the NGO being charged as well for criminal defamation.
Journalists observe a cardinal principle that protects sources who do not wish to be named. In law, the police and court may take a different view on sources. They would not only demand the identity of the sources but the reporter’s note books as well. The police have been known to seize, and confiscate, mobile phones, laptops and desktops.
Many senior journalists may still recall that there’s case law in Sri Lanka, from many years ago, on sources.
In this particular case, two journalists refused to disclose their sources and were jailed. The court fell back on public perceptions and commented that if sources were not disclosed, even in court, the suspicion would remain that “journalists were not above cooking up sources or even being the source themselves”.
Rocket Science
The sources in the judiciary’s police report are not rocket science. They could only be based on what Najib’s lawyer, Shafee Abdullah, complained about on Mon 14 2022. See here.
There won’t be trouble in Paradise, following the police report, since the Federal Court can sit in its comfort zone. It’s unlikely to take a wide latitude in law if it’s easier to put on blinkers and find no errors in facts and no errors in law. Hence, it will see no reason to interfere with the Ruling upheld by the Court of Appeal.
The efforts of the QC, highly skilled, would have come to nought. QC take the view, based purely on the rule of law and jurisprudence, that a winning case can be lost and a losing case won. Indeed, if a case goes on long enough in court, there may be a dramatic reversal in fortunes even if there are no novel developments in law.
If a case drags on long enough, the lawyer would be in a better position to look for the law and point it out.
The court can find the law, at leisure, and declare it.
Law, ultimately, is the power of language.
Federal Court Review
Indeed, since the Federal Court is the last stop in the two tier Appeal process, it can announce its finding on the position taken by the Court of Appeal and stop there. There would be no need to cite the grounds unless the Federal Court is asked to Review its own decision. The Attorney General is unlikely to ask for Review. In a case, the losing party has the right to know why it lost.
The developments related to Najib’s SRC International RM42m case, including Judge Nazlan himself, further strengthens the arguments on mistrial and miscarriage of justice. They merit Pardon.
If case is thrown out, on the grounds of mistrial, it would start all over again and there would be a new trial. In practice, given precedents, its unlikely to happen. The Attorney General, under Article 145, can decide not to proceed again. In that case, he does not risk being “humiliated” again.
Inconceivable
It would be inconceivable that the Agong would not grant Pardon in Najib’s case. The matter is unjusticiable. No court would go against the Agong. It’s the Agong who has to be convinced first that a case merits Pardon. The recommendations by the Pardons Board remain so much paperwork. It would be unthinkable for the Pardons Board to go against the Agong.
The Federal Court may be right, in law, in taking the position that Zeti Aziz and family have nothing to do with Najib’s SRC case. Even so, questions would arise if they are not dragged to justice as well. It smacks of selective prosecution and selective persecution. Najib’s case has also been seen as politically-motivated and tantamount to abuse of power by the Attorney General. It’s not about bringing the case against Najib but opposing fresh evidence being adduced.
The Federal Court rejected the Application without hearing the merits. No one would hold it against the Federal Court if it heard the fresh evidence adduced before rejecting its introduction. Law or no law, in the court of public opinion as well, and the social media, justice must not only be done but be seen to be done.
Smelling Like Roses
Patently, the Federal Court does not come out smelling like sweet roses on the matter of introducing fresh evidence.
Najib has made repeated attempts to adduce fresh evidence. The Federal Court, each time, rejected the Applications as showing nothing new. The Federal Court itself has shown nothing new in rejecting the Applications.
The efforts continue and, if the merits are not heard, it may have a bearing as well in the Petition for Pardon.
There’s case law from Raja Azlan Shah and Asian Arbitration on abuse of power. Raja Azlan held that prerogative and discretionary powers are not unfettered if abuse can be proven.
In the Asian Arbitration case, not so long ago, the Federal Court held that the Attorney General cannot fall back on Article 145 if there has been abuse of power. The Director of Asian Arbitration, the court held, has immunity from prosecution.
The Ruling, to digress a little, continues to be controversial since it was based purely on the letter of the law — written law — and implies the Director can act with impunity.
Abuse Can Be Proven
The letter of the law, by itself, isn’t law at all. In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law.
The Attorney General, in opposing the Defence bid to adduce fresh evidence, cannot fall back on prerogative and discretionary powers, if abuse can be proven. – 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.
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