Ex-PM Najib has right to be represented by counsel or even non-counsel of choice!
Former Prime Minister Najib Abdul Razak will have the perfect Appeal in the Apex court if he falls back on retired Federal Court judges in the Commonwealth for their input on the RM42m SRC International case. He can’t go wrong here. It’s about the spirit of the law.
Law, ultimately, is the power of language. The perfection in writing creates perfection in law. It isn’t possible to have perfection in law without perfection in writing. English is the language of law. Order 92, Rule 1, of the Rules of the High Court on the national language may be redundant. The 20K Bahasa Melayu has no longer been in official use since the 40K Bahasa Malaysia emerged by 1969.
In fact, input from the Commonwealth can be the first stop for QC Jonathan Laidlaw. Even if the QC continues to be denied on appearing in court, the Federal Court’s hands are tied on input, directly or indirectly, from the Commonwealth on the SRC case.
Instead of Laidlaw presiding over the input, lawyer Shafee Abdullah may have to stand in and advised by the former, if push comes to shove. It’s highly unlikely, no matter how much the court pontificates sanctimoniously in favour of other local lawyers, that anyone of them will be engaged for the Appeal. Other local lawyers would be akin to treading dangerous territory and virtually putting the head in the crocodile’s mouth. No means No. Even Shafee, Najib’s “hotshot” lawyer in his own words, failed twice including in the Court of Appeal after the High Court.
It’s said that senior lawyer Rakhbir Singh in Kota Kinabalu may be an exception. Shafee and Rakhbir, both from Penang, may have consulted each other in the past. It must be noted that Rakhbir managed to be admitted to the High Court in Kota Kinabalu despite the Federal Court keeping lawyers in Malaya out of the Borneo Territories. Lawyers in Malaya are also barred from handling cases in the superior court originating from Sabah Sarawak even if the hearing is in Malaya.
Three questions arise in law on Najib seeking recognition from the court on QC Jonathan Laidlaw representing him in court viz. whether recognition by the court was necessary under the greater emphasis on the spirit of the law, whether Najib has the right to be represented by counsel or even non-counsel of his choice notwithstanding Section 18(1), and whether the issue of the QC ever qualifying under Section 18(1) of the Legal Profession Act 1976 ever arose at any time. See here .
If the issue of the QC complying with Section 18(1) of the Legal Profession Act never arose, based on the spirit of the law, it’s a contradiction in terms to say that Jonathan Laidlaw did not meet the threshhold under the said Section. See here .
Under the rule of law, the superior court can provide exemption and waivers under Section 18(1). It failed to do so, belabouring in the delusion that it does not have to do so, law or no law, special circumstances, or no special circumstances. Najib can Appeal twice from the court of 1st Instance. The proceedings will be stayed until Applications are resolved. The Aug 10 date can be vacated. Finally, if all else fails, there’s case for mistrial arising from Tainted Ruling in the High Court. If the conviction isn’t set aside for New Trial in the High Court under a new judge, the Federal Court can hear the case itself. Otherwise, there’s merit for Pardon based on miscarriage of justice.
We can’t say that the judiciary will have mud on its face if it fails to set aside the SRC conviction. The court system may be bogged down by its own limitations, imposed by the adversarial system of justice in the Commonwealth, including the tendency to avoid judicial activism like the plague and being more comfortable with putting on blinkers. It’s only a highly skilled bench which will adopt a wide latitude in interpretation in majority Ruling. Human beings, by nature, take the easy way out. They belabour in the delusion that it can help them save face or avoid looking bad and “law be damned”. There’s also politics on the matter, always felt, never spoken.
Pardon exists in every jurisdiction in every nook and corner of the world because the court system has limitations. The people have long been unhappy with the court system in Malaysia.
Jurist (legal scholar) exists on law and the court system.
Already, Najib has character reference from Opposition veteran Lim Kit Siang, an unlikely source who now openly disagrees by implication with Mahathir that Najib curi (Najib stole), Najib pencuri (Najib thief), Najib curi duit (Najib stole money), Najib curi duit kerajaan (Najib stole government money) and Najib curi duit rakyat (Najib stole the people’s money). Najib should file Lim Kit Siang’s True Confession in court. That’s mud on the prosecution’s face. See here .
Opinion Isn’t Law
Opinion isn’t law. Only the court can declare law. The judge had any number of opinions — in fact he had opinion coming out of the ears — but did not declare based on the rule of law. Obiter dictum should not feature in the Ruling. The court’s take on Section 18(1) wasn’t based on the rule of law, the basis of the Constitution. It was about arguing for the letter of the law, by itself, as law. It isn’t law at all. The court should rule on Submission, not go off at a tangent to Timbuktu, for want of a better term, or get carried away by obiter dictum.
In the rule of law, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law. The spirit of the law is missing from the court’s take on Section 18(1). The court made no mention of the intention of Parliament on the Legal Profession Act 1976. It appears to have failed to interpret the intention of Parliament on the Act. It does not have to wait for Originating Summons on the 1976 Act to do so. There are exceptions, qualifiers, caveats, ifs and buts. Life isn’t black and white, but comes in various shades of grey.
In the rule of law, no one is above the law, all are equal under the law, there can be no discrimination, and where there are rights, there are remedies.
The court ignored the elephant in the room viz. that the legal fraternity in England and Wales for example, and Commonwealth jurisdiction, were light years ahead of Malaysia where law graduates can’t think like lawyers and still resort to rote learning desperately and fail the CLP (Certificate in Legal Practice) with alarming frequency. The LLB was no longer necessary to sit for the Bar in England and Wales. The irrelevant CLP content has never been about law practice or courtroom skills. It varies like night and day from that in the Bar exam format.
The court glossed over the fact that the QC appearing in Malaysia isn’t an existential threat. The
glossing over is a denial of the principles of natural justice. It’s the lack of reforms in law education including falling back on the never relevant LLB and CLP that remain an existential threat. Again, the LLB, being suitable only for teaching law, isn’t about law practice or courtroom skills.
Keeping the QC out of the court in Malaysia will not save the court system for local lawyers. In fact, allowing Jonathan Laidlaw to appear might yet help save the court from itself. The court isn’t noted for finding law which can be declared as novel developments. If local lawyers look for the law, they certainly fail to point out what can be declared as novel development. No one can remember when the court in Malaysia last declared novel developments as law. Laidlaw could have been the first in recent years.
No matter what happens to Laidlaw, going forward, the elephant in the room isn’t going to go away. There must be reforms in law education and rethink on who can appear in court to represent a party, whether as legal representative or Friend of the Party. See here .
It’s unfortunate that the legal fraternity, the court being virtually in cahoots with them, remains full of themselves. They fail to see Laidlaw as an opportunity for a new learning experience. Instead, they continue to belabour in the delusion that there’s nothing to learn from the rest of the world, “even if the LLB and CLP are irrelevant for law practice and aren’t about courtroom skills”. – 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 and do not necessarily reflect the stand of the New Malaysia Herald.