Najib Bid For New Trial Smothered By Technicalities, OSA’72

New Trial main issue in 20-Page badly written Federal Court Ruling released in great hurry!

In the end, when push came to shove, the Federal Court may have put on blinkers, notwithstanding the many case laws it cited on blinking, breathing and the like on lacuna (gap). It fell back on discretions — no matter how they were exercised, judiciously or otherwise — technicalities and the Official Secrets Act 1972 (OSA) to deny former Prime Minister Najib Abdul Razak’s well-timed bid for a new Trial. 

The Apex Court said the new evidence on Judge Nazlan was nothing new, that it had been reported earlier in the media, that it should have been brought to court earlier, that it was irrelevant, it had nothing to do with the RM42m and in any case there must be finality of closure — read High Court — and therefore it was too late.

The Federal Court Ruled that it did not have to look at this and that from the Defence and allowing anything to be filed means nothing. It could have said that it looked at the matters filed but could not take them into consideration for various reasons. Obviously, the Federal Court has selective reading habits. It’s pointless filing anything if judges don’t read. See here.

It was cold comfort that the Federal Court, out of the blue, said that it would look at aspects of Judge Nazlan’s High Court Ruling on the RM42m SRC International case. It cited abuse of power, among others.

Let’s not place too much hope on such assurances which may be more about smoothing ruffled feathers in Defence.

Charges framed

Based on the charges, as framed, the Federal Court can only concur with the Court of Appeal that there were no errors in facts and no errors in law in the High Court Ruling against Najib. It may no longer be possible for Najib to clear his name through the court.

That was how Anwar Ibrahim lost Sodomy 1 and Sodomy 2. He petitioned for Pardon.

Anwar had no hope in the way the charges were framed. The Attorney General’s Chambers (AGC) is good at this. They fall back on the letter of the law, by itself, as law. It isn’t law at all.

The Defence in the Najib cases must be brilliant on the rule of law to persuade the Federal Court. There are not too many brilliant lawyers around given the lack of reforms in law education. No brilliant lawyer may have made their way in the judiciary. They don’t sit on the Bench. Former Attorney General Tommy Thomas, for example, went into exile in Canada in protest against Mahathir Mohamad. He only came back just before GE14 in 2018 and became Mahathir’s AG. Hypocrisy knows no bounds in the local legal fraternity.

Herald Case

We can recall, to digress a little, that it was the Federal Court that Ruled against the Herald, the Catholic weekly, on Allah being used to refer to the “Christian God”. It implied that Allah was the “Muslim God”. The Federal Court, finding lacuna in local law, cited the principle in law from the Ananda Marg case in India. The principle was not applicable. It was not law in Malaysia but Advisory Opinion which had no merit. The Federal Court went ahead anyway. It Ruled against the Catholic Church and became a laughing stock worldwide.

In jurisprudence, the court cannot get into theology. The court is also not about ethics, moral values, sin, God, justice or truth. The court is only about the rule of law. 

Civil Court

Still, to digress a little again, we find the civil court in Malaysia pointing at the syariah court on this and that. That’s not within the jurisdiction of the civil court. The civil court should keep a discreet silence on the syariah court. There’s no dual legal system in Malaysia. Syariah isn’t law but based on a person’s willingness to accept it. It would be unconstitutional to impose syariah on anyone. There’s case law on this from the Supreme Court of India.

Najib Fallback Position

Najib should adopt Petition for Pardon as the fallback position based on miscarriage of justice. If the Agong decides there has been miscarriage of justice, there has been miscarriage of justice. The matter is nonjusticiable. No court will go against Agong.

The Pardon isn’t for those who did wrong but for those who were wronged.

Privileged Communication

The Federal Court was caught between the Prosecution harping on alleged hearsay by Najib in the Motion for a new Trial and the Witnesses being privileged communication covered by the OSA. The Federal Court disingenously said that it was not known what the Witnesses would say and whether they would support Najib. Ironically, it said in the same breath that, in any case, it was under official secrets as argued by the Prosecution.

The Witnesses could have made a real difference and paved the way for a new Trial. That was the bonus point. The real contribution would have come from the elephant in the room.

It’s hard to believe that the Federal Court, in citing case law on this and that, ignored the elephant in the room: the related SRC situation involving Judge Nazlan existed before the RM42m SRC case. It necessitated, therefore, that Nazlan recuse himself. It’s not a must that he preside over the case. Since Judge Nazlan didn’t recuse himself, Najib deserves a new Trial.

Nazlan Has Conflict of Interest Issues, Say Najib's defence team
The defence in Najib Razaks SRC International case has pointed out that High Court judge Mohd Nazlan Mohd Ghazali had a role in the events linked to the charges the former premier is facing and hence he is deemed to have a conflict of interest when presiding over the trial NMH filepic

The merits of a case need not run the gauntlet on case law. The case speaks for itself. Again, foreign case laws are not law in Malaysia. They are not binding. At best, they are Advisory Opinion.

There’s also the little matter of Judge Nazlan having no criminal court experience and having unexplained sums, million plus, in his personal account/s. He was transferred from the commercial court to the criminal court just for the SRC case. After the case, he was transferred back to the commercial court. Shortly thereafter, he was elevated to the Court of Appeal. All this must make suspicious reading. Other judges only made it to the superior courts not long before they were compulsorily retired.

Of course, no judge can be forced to recuse from a case. If a judge refuses to recuse himself or herself, the court must find other ways to ensure that common sense, universal values and the principles of natural justice were upheld. Justice must not only be done but be seen to be done. 

Expecting Too Much

It was no doubt expecting too much for the Federal Court to adopt a wide latitude in interpretation — “we are in Malaysia” — and take the road less travelled. It could have happened if members of the Bench had contributed to novel developments in law and/or declared such developments as law.

The unkindest cut of all was that the Ruling was unanimous. There had been expectations that there would be at least two dissenting judgments. That would have facilitated the Appeal on the Motion.

Ad Hoc Prosecutor V. Sithambaram’s virtually “childish” retort, “So what if Nazlan had worked for the bank”, ignores the fact that the judge did not disclose his involvement with SRC International when the RM42m case began. The issue isn’t about the judge working with Maybank. The issue is that Judge Nazlan was with Maybank which handled SRC as a Client and he was involved. He should not have presided over the RM42m SRC case. See here.

The Prosecution and the Federal Court belaboured the point that Judge Nazlan’s involvement with SRC before he heard the case has nothing to do with the RM42m which was allegedly misappropriated. That’s not the Narrative from the Defence.

It was no surprise that the Federal Court and the Prosecution were speaking the same language on the Motion to adduce fresh evidence which would allow a new Trial. 

Long Way To Go

We may have a long way to go on the rule of law, the basis of the Constitution. Malaysian lawyers and the court generally fall back on the letter of the law, by itself, as law. It isn’t law at all.

In the rule of law, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law.

Social media has been left wondering why the Federal Court Ruling on the Motion by Najib didn’t take too long. It was handed down not long after Defence Counsel Hisyam Teh summed up in court on Tues 16 Aug. The Ruling, which should have been considered at least over two weeks, may have been largely written after the Prosecution summed up on Mon 15 Aug. The jury may still be out on whether the rush to judgment was non-compliant with the oft-cited “amalan, tatacara dan prosedur Mahkamah” (practices, timeline related to procedures and procedures of the Court).

It was bad news all the way when the Federal Court took the maxim, “justice delayed is justice denied”, out of context. It rejected an Application on adjourning the main Appeal by three to four months. There have been calls in the court of public opinion that the main Appeal, given Najib’s change of lawyers, merits adjournment by six weeks to six months. – 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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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.

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