Ex AG: Najib Should Be Fighting From Behind Bars

Former Attorney General Tommy Thomas can’t question Najib Razak’s universal popularity despite his conviction in court

Former Attorney General (AG) Tommy Thomas seems oblivious to the fact that Malaysia’s 6th prime minister Najib Abdul Razak’s RM42m SRC International conviction stayed and his police bail extended.

There’s no reason to deny bail if the alleged offence did not involve violence and there’s no risk of flight. See here.

Najib isn’t being accused of stealing money. So, there’s no reason for him to flee the country. See here.

If Najib remains universally popular, despite the SRC conviction and numerous cases still in court, it’s because stories are being told from the middle and/or the prosecution and opposition are only looking at parts of the story which suit their convenience.

It’s a sad reflection on the court in Malaysia. See here.    

There’s no need to consult psychologists and psychiatrists, as suggested by Thomas, to understand the phenomenon.

Criminal Justice System

Some examples of the criminal justice system come to mind.

Hate preacher Zakir Naik fled India, while Nissan Chief Carlos Ghosn fled Japan. Both rejected the system that Thomas implied that he favours viz. locking up alleged offenders and letting them fight cases in court from behind bars.

Such a system, Zakir Naik has pointed out, has meant that alleged terrorists — it means violence — remaining behind bars for ten years on the average before the Supreme Court of India rules that there was no proof that the alleged terrorist should be locked up and the keys thrown away.

Ten years behind bars, for a crime which was not committed by law, represents a good part of one’s life, the best years and the loss of youth.

Likewise, under the criminal justice system in Japan, which Malaysia reportedly favours, an accused remains behind bars until he or she “confesses” to the alleged crime.

Confessions whether true or otherwise, including self-incriminating, are followed by speedy trial and definite incarceration. This describes the police state.

The judge may or may not know that the accused has already spent a few good years behind bars without trial. It’s not known whether periods under remand are discounted from the final sentence.

Carlos Ghosn exposed Japan’s notorious criminal justice in the international media. It would be an understatement to say that the system in Japan violates human rights and international law.

Public Perception

Thomas may be right in a way in calling for the court system to be revamped but not for the reasons he has given.

It may appear that the court system is being manipulated and exploited. It’s public perception that isn’t true.

Under the adversarial system of justice in the Commonwealth, the principles of natural justice and the rule of law places no deadlines for bringing cases to closure. It’s human rights that cases, especially criminals, be allowed to go back and forth as long as they can go back and forth.

It’s totalitarian thinking that cases must end by a certain deadline, fixed regardless of reasons for delay including medical, and applications. If there are applications, and there can be any number of them, proceedings must be stayed under the rule of law while they are resolved.

There may be appeals. In jurisprudence, and under the rule of law and the principles of natural justice, the prosecution and/or the other side cannot claim that applications and/or delays are an abuse of the process of court, frivolous and vexatious.

In the rule of law, the basis of the Constitution, where there are rights, there are remedies. There’s a maxim which states that “it’s better to let a thousand “guilty” men go free, than hang an “innocent” man.

Once a convicted person has been hanged, rightly or wrongly, there’s no turning back.

Najib and Democracy

In a democracy, laws are not enacted to be enforced but just in case they need to be enforced based on public concern and public interest. The enforcement of law remains an educational experience, not for the accused or claimants, but the public.

This is one reason that courts have public galleries. The public can witness the court in action. 

Court delays may often be caused by the unavailability of dates for hearings and case mention for case directions and case management.

There are an extraordinary number of court cases and these may be growing exponentially.

In England, for example, 90 per cent of cases never come to court. Of the 10 per cent that is filed in court, only one is finally heard.

Hence, the observation by the University of London that “it’s the business of English law to make business for itself”.

Thomas rightly observed that many cases in Malaysia never come to court or do not stay in court as “there’s no money in it for the lawyer”. In the latter case, many accused are probably being incarcerated by the court of 1st instance.

There can be two appeals from the court of 1st instance. Court cases may not be for the poor. I stand corrected.

Abuse Of Power

The court system, it can be argued, could do better on abuse of power cases involving political donations and allegedly being party to illegalities viz. facilitating money laundering activities.

Both phenomena can be framed disingenuously as abuse of power, conflict of interest and criminal breach of trust allegedly arising from deriving personal benefits from bribery, corruption and probably money laundering activities.

The court can consider open and shut personal benefit cases, based on bribery and corruption, but not put on blinkers if they are allegedly described as an abuse of power. Once the court generally declines to visit abuse of power cases, as before GE14, the conflict of interest and criminal breach of trust elements collapse and implode.

If the court adopts a wide latitude in interpretation, and we have brilliant lawyers like QCs, there would be novel developments which can be declared as law. The first step, needless to reiterate, begins with reforms in law education.

The Federal Court should take another look at the Raja Azlan case law on abuse of power and declare it as bad law, that it does not exist, it never existed, and if it exists, it ceases to exist. The case law may be unconstitutional.

Prime Minister

In revamping the court system, the Judiciary cannot ignore the Doctrine of Separation of Powers and the prerogative and discretionary powers of government and management.

If there’s no proof of Prime Ministerial Dictatorship and Presidential Premiership, the prime minister should not be dragged to court for alleged abuse of power, conflict of interest and criminal breach of trust.

It creates a dangerous precedent which threatens all future Administrations. As in the US, the Agong can consider a pardon for the prime minister before he’s charged or faces charges — based on “technicalities — which he should not face.

Political Donations

There’s no specific law in Malaysia on political donations. It may be a work in progress.

Yet, we know that political donation cases have been framed as allegedly deriving personal benefits based on bribery and corruption, probably reeking of money laundering as well, and thereby tantamount to committing abuse of power, conflict of interest and criminal breach of trust.

We have an example from mid-2020 after former Sabah Chief Minister Musa Aman was slapped with 46 charges related to deriving personal benefits based on bribery, corruption and money laundering, thereby tantamount to committing abuse of power, conflict of interest and criminal breach of trust.

Day turned to night. The night turned to the day when the AG, Idrus Harun, accepted a letter of representation from Musa — read in court on Tuesday 9 June 2020 — that the RM380m “bribes” he allegedly collected should be considered political donations.

If ten politicians, for example, received political donations but only one is dragged to court, that’s a violation of Article 8 (no discrimination) and the rule of law. In the rule of law, no one is above the law, and all are equal under the law.

It’s clear that political donation cases involve the Inland Revenue Board (IRB). The issues that arise in law are failure to inform the IRB on donations above RM5K, not disclosing the name of the donor/s, tax evasion and failure to settle taxes and fines due.

If political donations involve an amount far exceeding assets which can be legitimately accumulated and/or acquired during a lifetime, it comes within the Definition of money laundering under international law. The assets are proof of money laundering.

Letter Of The Law

There’s a case for the court to decline to rule if parties in dispute on issues in conflict belabour in the delusion that the letter of the law, by itself, is the law. 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 letter of the law, by itself, isn’t law at all.

It’s the work of lawyers to look for the law and point it out. It’s the work of the court to find the law and declare it.

Judicial Power

Under the Constitution, the judicial power of the Federation cannot be taken away from the court, even if Parliament takes them away under ouster clauses or mandatory sentencing guidelines.

It’s an open secret that the court has been saddled with about 40 ouster clauses by Parliament. That’s a violation of the Doctrine of Separation of Powers. See here.

In law, even an invalid law remains valid in the books unless declared otherwise by the court.


It’s needless to say that the bench and the Attorney General’s Chambers (AGC) will only have credibility if they reflect the demography of the nation.

Also, those on the bench must be appointed by the Agong with no recommendation by the prime minister. Under the Doctrine of Separation of Powers, the judiciary must not be subject to the Executive or Parliament. – New Malaysia Herald

About the writerLongtime 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 and do not necessarily reflect the stand of the New Malaysia Herald.

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