The great majority may not be familiar with Judge Nazlan and Najib’s RM42m SRC International case
Democracy, according to spiritualist, mystic and yogi SadhGuru, only works if the people participate. Democracy, he cautions in YouTube videos, isn’t about voting once every five years and going home and sleeping.
For those unfamiliar, SadhGuru runs the Isha Yoga Centre worldwide and mostly shuttles between India and America. He gets invited to world meets on everything and anything. He claims that he sat down on a rock outside town one day for no reason in particular except that he had four hours to kill between business meets. He was enlightened and opened his eyes from meditation. He appears to be able to answer any question put on anything. He’s known for falling back on the reality that nothing exists.
SadhGuru urged the people to form Movements on issues and take to the streets if the government closes the door to dialogue and/or the court denies them a hearing. Street movements, he pointed out, will have an impact on election results.
Patently, the concept of government was “evil” — and by extension, the court since the latter isn’t about ethics, moral values, theology, sin, God, justice or truth but only about the rule of law — and on paper, they (government and court) can do anything they want unless restrained by the people taking to the streets. Ironically, when the government runs amok, in law the court was expected to restrain it.
Surprising
It’s surprising that so far no one has taken to the streets on the Federal Court allegedly giving the short end of the stick to former Prime Minister Najib Abdul Razak on the RM42m SRC International case in Appeal. The short end of the stick was a violation of the rule of law, the basis of the Constitution. The Federal Court cannot belabour in the delusion that the letter of the law, by itself, is the law. It isn’t law at all.
In 2018 in retrospect, on 08 Dec, Wikipedia wrote that the Anti-ICERD (International Convention on the Elimination of All Forms of Racial Discrimination) Rally or Himpunan Aman Bantah ICERD (Bahasa) Rally of thousands was held at Dataran Merdeka, Kuala Lumpur, by various Opposition political parties and NGO.
The Rally, estimated by police at 50K, by organisers at 500K and by the Opposition at 1m, was held despite the Prime Minister’s Office announcing earlier on Nov 23 that it was withdrawing from the ratification of the Convention. The Convention, even if ratified, wasn’t a law in Malaysia unless applied in national law.
The issue in the Convention wasn’t the Special Position by way of reasonable proportion in the Federal Constitution — note it’s not the Malaysia Constitution — but it’s a controversial observance in the breach by the government paying lip service to the rule of law and acting with impunity. The RM42m SRC International case on abuse of power comes to mind on the AG acting with impunity.
Najib’s Losing Battles
Najib, away from the Rally on the Convention, has been fighting losing battles in court, beginning with the SRC case. See here, here and here.
Najib can lodge a Petition for Pardon with Istana Negara and Agong for the years, 2009 to 2018, when he was Prime Minister.
He should not mention court cases in an early Petition. It would be premature to mention the tainted High Court Ruling, mistrial and miscarriage of justice. These areas can be mentioned in a late Petition i.e. if push comes to shove and Najib has to count even one day behind bars after Federal Court Review. See here.
Pardon isn’t for wrongdoers. It’s for those who have been wronged and those who may be wronged. In the US, Pardon was granted even before someone was brought to court or may never even be brought to court. President Trump, for example, pardoned his daughter Ivanka and her husband Jared Kushner just before leaving office. It’s unlikely they would have been dragged to court on anything. It was about Executive Privilege. No one in America screamed that the Pardons were nepotism.
Agong may be in the same position as the US President and other heads of state on Pardon, among other things, especially given the fact that no novel developments in law take place in Malaysia and therefore there are no related declarations on law. I have written previously, more than once, that Agong should Pardon the Prime Minister, Bank Negara Governor, the Chief Secretary to the government and Cabinet Secretary, and heads of government depts when they leave office. That would prevent the AG from abusing his powers and/or framing charges in a way to “fix” them. The AG can’t be allowed to run amok in court.
It can be argued that perhaps by omission and commission, that perhaps overtly and covertly, mistakes were made in the High Court and court of appeal. Let’s not go there. However, it’s time to separate the men from the boys on the Way Forward, for the finality of closure.
Movement On The Streets
If there’s a Movement which takes to the streets on the way the Federal Court may be presiding on the SRC case, it would be on Judge Nazlan emerging as the elephant in the room.
The Federal Court sees no elephant, only hearsay, no conflict of interest, and Ruled the Witnesses on new evidence about privileged communication covered by the Official Secrets Act 1972. The unanimous Ruling was a violation of the rule of law. It’s inconceivable that there was no dissenting judgment.
The OSA isn’t the stumbling block. Privileged communication remains only under OSA, not during cross-examination in court. The AG cannot sue the court on OSA and Witnesses being party to alleged illegalities. The Witnesses can be cross-examined on a willing questioner and willing answerer basis. There’s no need for Witness Statement and Affidavit in Support lest they violate the OSA.
The Apex Court held that Judge Nazlan’s involvement in SRC – described as strategic resources and not SRC — before the SRC case was publically known, covered by the media from early days, and should have been raised by Defence in the High Court. It implied that it was too late now when there had been finality of closure on Judge Nazlan not recusing himself since Defence didn’t raise the issue back then, and can’t do so now in the Federal Court. The Apex Court didn’t describe Defence efforts as “litigation by ambush”.
The Defence probably didn’t realise the full impact of Judge Nazlan being in “conflict of interest” on the SRC case until, according to the media, anonymous packages with allegedly incriminating evidence landed on Najib’s doorsteps. The former Prime Minister then connected the dots on admissible hearsay, albeit too late according to the Federal Court in looking the other way on Judge Nazlan, by Ruling that the new evidence had nothing to do with the main RM42m charge and was therefore irrelevant. See here and here.
The Federal Court did not differentiate between admissible hearsay and inadmissible hearsay and the fact that the new evidence wasn’t about the RM42m. The Apex Court, with a straight face, ruled that Judge Nazlan wasn’t caught in a conflict of interest situation and that Najib’s Application on the matter was hearsay. It’s not hearsay if there’s corroborative evidence under the Evidence Act 1950.
The Federal Court may be looking at the SRC case through the wrong end of the municipal drainpipe by falling back on bundle of authorities on case law and technicalities to deny hearing Applications. It’s the merits of the case in court that matters.
Abuse Of Power
The Federal Court wants Defence to focus on rebutting Judge Nazlan’s take in the High Court Ruling on abuse of power. Judge Nazlan didn’t completely define abuse of power with reference to the SRC case.
The Federal Court, based on Oral Submission by Defence, can and may Rule mistrial in the High Court, set aside the High Court and court of appeal Rulings, and send the SRC case back to the High Court to be heard before a new Judge or hear the case itself.
The Apex Court, in dismissing the Application on Judge Nazlan as conflict of interest, said that it would look at the High Court’s take on the abuse of power and that the Defence still has a chance.
It’s unusual that the Federal Court said this. It’s advising the Defence on the Way Forward when it was degenerating into the politics of distraction, disruption and obstructionism. It’s not surprising the Prosecution saw no reason to protest and was prepared to be in cahoots with the Federal Court as a party to illegalities i.e. denying Defence hearing on Judge Nazlan.
Judge Nazlan in obiter dictum — it cannot be part of the Ruling — alleged that Najib had “overarching control” in SRC and was the “shadow director”. Even if true, Najib could not have acted alone.
After saying that “Najib did not return the RM42m”, Judge Nazlan did not suspend the Ruling. That was violation of the principles of natural justice i.e. one of the three criteria in law, the other two being common sense and universal values. Judge Nazlan could have asked Najib to deposit the RM42m in court, i.e. if he still has the money with him, and allowed SRC International to prove that they are eligible to claim and entitled to hold the money.
Shadow director may exist in the Companies Act. However, the Act cannot violate the Doctrine of Separation of Powers and tread on Executive Privilege and the constitutional reality that the Prime Minister and Parliament stand indemnified for acts in office.
The High Court Ruled that a prima facie case had been made out. The court probably fell back on the Raja Azlan Shah case law on abuse of power on the prerogative and discretionary powers of government and management and read it in isolation.
Najib has already gone after the Attorney General, separately, for abuse of power on the way the latter framed the SRC charges i.e. mixing fiction with fantasy. He can only strengthen his case even further now against the AG in the wake of the Federal Court defending Judge Nazlan on not recusing himself in the High Court. It was a breach of ethics on the part of Judge Nazlan and abuse of power by the AG.
There’s case law by the Federal Court on the AG abusing his powers in the Asian Arbitration case. There was immunity against prosecution. The prosecution can proceed if immunity could be waived. However, it couldn’t be done. If the Director of Asian Arbitration had waived immunity, paving the way for prosecution, it would have been a different matter altogether. Except perhaps in Japan, no Director would suddenly be stricken by conscience and embark on kamikaze and/or commit hara-kiri after true confession.
Najib Has Immunity From Prosecution
In the SRC case, and all other cases against Najib, he did not waive “immunity from prosecution”. His immunity can only be waived by himself. No court can remove the immunity. It’s nonjusticiable i.e. not for judicial consideration and resolution.
The Prime Minister and Parliament stands indemnified for acts in office. This indemnification cannot be waived by the Prime Minister and Parliament. Again, no court can remove the indemnification. It’s nonjusticiable.
We don’t even have to go into the Doctrine of Separation of Powers and a whole host of other mitigating factors on immunity and indemnification . . . the Cabinet System based on the consensus principle and collective responsibility, the prerogative and discretionary powers of government and management, organisational systems and structures being inherently based on compartmentalisation — i.e. no one person knows everything — which ensures checks and balances for transparency and accountability of the system and structure.
The court of law, based on immunity and indemnification, may have no jurisdiction on the RM42m SRC International case.
The court is about what is before it.
The court will not say “no jurisdiction”.
Defence must say it.
The Prosecution might say that Najib waived immunity and indemnification by mounting Defence.
Rule Of Law
If there’s Movement on the streets on Judge Nazlan, the people should demand that the Federal Court uphold the rule of law.
CJ, based on a police report reported by the media, should be asked to recuse herself. She can and may refuse. Then, Agong would have to come in.
If one million people take to the streets on Judge Nazlan, the Federal Court, AG and MACC will quickly come to their senses.
The people need to familiarise themselves with the crux of the SRC case. It’s not about the charges.
Judge Nazlan will have to be brought before the Judicial Ethics Committee.
Again, Agong will enter the picture.
The people must not gather in the streets in support of Najib. In law, the Bebas (Free) Najib movement in the streets cannot free him. The Movement will only make Najib look bad in the eyes of the people. Najib can only be freed by the court. Many people tried the Bebas Movement for Anwar Ibrahim and Harun Idris. They failed. The duo went to jail anyway.
The people can only gather in the streets against Judge Nazlan.
If the nature of human relationships needs to be regulated, it can only be done by the rule of law or by out-of-court settlement, Pardon, immunity, indemnification or by Movement in the streets.
In the rule of law, there’s a 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.
The letter of the law, by itself, is black and white. Again, it isn’t law.
The spirit of the law comes in various shades of grey. There are exceptions, qualifiers, caveats, ifs and buts, and special circumstances.
Opinion isn’t law. Only the court can declare law. – NMH
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.
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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