FC Can Stay Najib Cases Pending RCI, Forensic Accounting

RCI for Najib's cases?
There are numerous issues in law which may further bog down former premier Najib Razak's SRC appeal

If evidence was suppressed, High Court, Court of Appeal, may have looked at only part of the story on Najib cases.

It’s public perception that the court puts on blinkers and allows a story to start from the middle or only looks at parts of it which allegedly suits the prosecution’s convenience. That’s tantamount to suppression of evidence. Life isn’t black and white only. It comes in various shades of grey. There are exceptions, qualifiers, caveats, ifs and buts.

Ideally, the court should adopt a wide latitude in interpretation.

That’s easier said than done in Malaysia and Singapore where law education remains light years behind other Commonwealth jurisdictions. The jury may no longer be out on whether the judiciary belabours in the delusion that the letter of the law remains the sum total of the rule of law.

The government, following Judge Nazlan’s police report on a Blog attack, should set up a Royal Commission of Inquiry (RCI) on the Najib cases, and probably on the Panama Papers, and Pandora Papers as well, among others. See here

There should be forensic accounting to get the whole story for the RCI. Opposition Leader Anwar Ibrahim repeatedly called for forensic accounting during a recent public debate with former Prime Minister Najib Abdul Razak. See here . . .

In law, the proceedings on the Najib cases are stayed pending the RCI Report.

Unlike an RCI on the Najib cases, it’s not entirely clear whether the Federal Court can focus on the Doctrine of Separation of Powers, the prerogative and discretionary powers of gov’t and management, and the Cabinet System based on the consensus principle and collective responsibility. The Cabinet System is about internal checks and balances based on compartmentalisation i.e. on a need to know basis, no one person knowing everything and no one deciding unilaterally or arbitrarily.

Court Avoids Abuse Cases

Again, if there has been abuse of power on prerogative and discretionary powers, the entire Cabinet should be in court. In law, that’s not possible, indicating the law ceasing to exist. Abuse of power is about an individual, not a system. The RCI may find that Najib has been made the scapegoat, the proverbial sacrificial lamb, following GE14.

If the nature of human relationships needs to be regulated, it can be done by law or by other approaches. The RCI may be one approach to bring closure on the Najib cases in court.

No Najib Cabinet Member has come forward as character witness in court. The RCI can summon them. We need the complete story.

Abuse of power charges can be brought against the Prime Minister but only if there’s proof that the Cabinet System degenerated into Prime Ministerial Dictatorship as during the Mahathir Administration.

During the Mahathir Administration, 1981 to 2003 and 2018 to 2020, the Cabinet System allegedly degenerated into Prime Ministerial Dictatorship.

Mahathir used to brag in the international media that he was the only Dictator in the world who was re-elected.

Old Habits Die Hard

The Pakatan Harapan (PH) gov’t fell on Mon 24 Feb 2020 because Mahathir tried to be Prime Ministerial Dictator from Thurs 10 May 2018 to Mon 24 Feb 2020 as during the years 1981 to 2003. He resigned when the Cabinet continued to resist his approach.

Old habits die hard. A leopard doesn’t change its spots.

Gua Musang MP Tengku Razaleigh Hamzah warned the media before GE14 on Mahathir.

During Mahathir’s first Administration, the MACC and the AG reportedly sent case files involving gov’t MPs and Senators to him. It was an unwritten rule.

Prosecution could only begin if the case files returned.

The unwritten rule became public knowledge when Abdullah Ahmad Badawi took over as Prime Minister in 2003. He publicly returned the Kasitah Gadam (Sabah) and Eric Chia (Perwaja Steel) files to the MACC.

Only the AG has prosecutorial powers. However, he can delegate these powers to other bodies like MACC and Bank Negara and even lawyers in private practice.

Judiciary Under Scrutiny

Judge Nazlan’s police report, on the Blog attack on him, may have unwittingly brought the judiciary into public disrepute, disgrace, odium and contempt.

We are also reminded of related statements, all clearly unnecessary, by the Judiciary on Judge Nazlan, and by the Bar Council and Suhakam. All these, given the hysteria displayed, probably deepened the negative public perceptions on the judiciary.

Judge Nazlan, Suspected of Criminal Wrongdoing Cannot Claim That He’s Already Covered by the Judicial Ethics Committee and Protected by the Doctrine of Separation of Powers.
Judge Nazlan, suspected of criminal wrongdoing cannot claim that he’s already covered by the Judicial Ethics Committee and protected by the Doctrine of Separation of Powers.

The police report could only have cast a dark shadow on the RM42m SRC International case brought against Najib. If the police don’t investigate within a reasonable period of time, the Magistrate’s Court will step in.

If the judge had protection, as argued in a opinion piece in the media, the police report has rendered it redundant. See here .. and here .. .

It cannot be argued that members of the judiciary, not being public officers, are not subject to anti-corruption laws.

Under the rule of law, the basis of the Constitution, no one is above the law, all are equal before the law, there can be no discrimination, and where there are rights, there must be remedies. See here . . .

Breach of ethics and being party to illegalities are not one and the same thing, the latter being criminal wrongdoing. In law, a line must be drawn somewhere lest Pandora’s Box opens. No court will allow the floodgates to open.

Judicial Ethics

A judge suspected of criminal wrongdoing cannot claim that he’s already covered by the Judicial Ethics Committee and protected by the Doctrine of Separation of Powers.

The Doctrine is about the role and functions of the three arms of government as separate and equal, and acting as check and balance on the other two.

The Doctrine does not protect anyone on criminal wrongdoing. The Federal Court, sitting as the Constitutional Court, can interpret the intention of the framers of the Constitution on the Doctrine.

Judge Nazlan has nothing to fear if he cannot be charged with any criminal wrongdoing or no prima facie case can be made out against him in the wake of the Blog report and police report. However, it’s equally true that there’s no smoke without fire.

Circumstantial evidence is inadmissible in criminal cases. The test of the burden of proof in criminal cases is beyond reasonable doubt, a very high threshold.

Witness statements in both criminal and civil cases must be backed by corroborating evidence under the Evidence Act. Otherwise, it’s hearsay.

No Law, No Crime

The rule of law, the basis of the Constitution, will prevail. In the rule of law, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law.

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

No law, no crime (nullum crimen nulla poena sine lege) is a principle in criminal law and international criminal law.

It remains a separate issue whether Judge Nazlan should have recused himself on the RM42m SRC International case.

The MACC probe may have nothing to do with the RM42m SRC International case unless recusal arises. The conviction stands unless overturned by the court or there’s Pardon by the Agong. See here . . .

The judge allegedly went off at a tangent from the submissions of the parties in dispute on matters in conflict on the RM42m SRC International case. He may have pontificated sanctimoniously on this and that and that and this. That may have rendered the Ruling tainted and created grounds for miscarriage of justice which merits Pardon. There may be a case for mistrial.

Deposit In Court

The Federal Court can order Najib to deposit the RM42m in court for SRC International to file a Claim.

On what basis can SRC claim money that it released, on its own accord, for corporate social responsibility?

Judge Nazlan asked about the RM4b. He wanted to know what happened to it. That’s not an issue in court. Asking irrelevant questions betrays bias and prejudice.

The RM4b was transferred from KWAP to SRC several years before the RM42m was deposited in Najib’s accounts.

The money was probably mixed with other monies in the three Najib accounts with AmBank. The accounts were controlled by SRC CEO Nik Faisal, according to AmBank Jalan Raja Chulan General Manager Uma Devi in court.

Jho Low may have sold the related Arab donation story to Najib. Here, the picture gets rather murky. The former Prime Minister should probably keep as far away as possible from the story. Dead men tell no tales.

The Attorney General dragging Najib to court alone for alleged abuse of power doesn’t bring closure in the court of public opinion.

DoJ initiative

It’s instructive that the US Dept of Justice (DoJ) initiative on Malaysia-related cases was based on the Definition of money laundering.

DoJ filed civil action. The alleged money launderers settled out of court without prejudice i.e. without admission of wrongdoing.

The DoJ would have instituted criminal action if there had been no out of court settlement and the civil action had been challenged.

International law, only applicable if incorporated in national law, defines money laundering as having assets far in excess of what can be legitimately accumulated during a lifetime.

Such assets can be frozen by a state under civil action and seized and forfeited. In Najib’s case, it appears that civil action on money laundering did not arise in any jurisdiction. This raises questions for the RCI on the criminal cases. – 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.

The points expressed in this article are that of the writer’s, and do not necessarily reflect the stand of the New Malaysia Herald.

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Joe Fernandez
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.