Is The Silence Deafening Because It’s Najib? Asks Author

I am keen to hear what groups like Human Rights Watch, the Int’l Bar Council and the diplomats based in KL will have to say about the treatment of this case involving Najib

I was not surprised at last Tuesday’s decision and the sideshow that followed on Thursday and Friday, pertaining to the SRC Appeal involving former Premier Najib Razak.

After rejecting evidence allegedly showing that the then head of the country’s top financial regulator had lied about her knowledge of 1MDB/SRC international/KWAP linked-funds going into Najib Razak’s bank account and its refusal to give Najib’s new defence team even a few weeks to prepare their case, it was not shocking that the Federal Court judges, led by the Chief Justice, rejected Najib’s application for a new trial or to admit fresh new evidence. It seems that this fresh evidence would allegedly show that not only had the judge who convicted Najib been found to have lied, but was also heavily conflicted because of his involvement in the setting up of SRC International, the company from which Najib is alleged to have stolen money.

Then to add insult to injury, the Chief Justice not only disallowed Najib’s counsel to dismiss himself from the case (after having been denied more time to prepare new submissions) but insisted that he remain Najib’s counsel on record so that the Court could push through the appeal process, when in reality, it effectively left Najib without legal representation and meant that he would not able to put forward his defence before the court.

Mahathir And The Judiciary

I suppose the judiciary has never been the same after former Prime Minister Mahathir Mohamad destroyed it with the removal of Tun Salleh Abas as Lord President back in 1988, and appointing many new judges loyal to Mahathir, some of whom now occupy senior posts across the land.

And of course, let’s not forget Mahathir’s involvement in the 14-minute video tape of the VK Lingam affair. Lingam, a senior lawyer very close to Mahathir, allegedly in 2001 brokered a deal with the then Chief Judge of Malaya Ahmad Fairuz Sheikh Abdul Hamid to make him the next Chief Justice. Mahathir then made Fairuz Chief Justice shortly after, choosing Fairuz over a more senior candidate favoured by the outgoing Chief Justice. When asked in 2008, by a Royal Commission of Inquiry (set up to investigate the interference in judicial appointments) as to his rationale, Mahathir quipped, “I don’t have to explain to anybody the reasons why.”

In its 2008 report, the RCI recommended that action be taken against Mahathir, Fairuz and four others for misconduct while in office. In 2015, Lingam was struck off the rolls of advocates and solicitors by the Bar Council who brought complaints against him, which included interfering in, or influencing judicial appointments. However, Mahathir and Fairuz, were not prosecuted.

Fairuz was the country’s presiding CJ before Mahathir stepped down in 2003, and before the entire scandal blew up in 2008, long after Fairuz had retired.

And of course, when he again became Prime Minister in 2018, Mahathir was back at it.

Within days of the opposition Pakatan Harapan coalition winning GE14, Daim Zainuddin, Mahathir’s former Finance Minister and Chairman of Mahathir’s Council of Eminent Persons (CEP) summoned Chief Justice Tun Md Raus Sharif and Court of Appeal President Tan Sri Zulkefli Ahmad Makinudin and allegedly ordered them to resign.

A Chief Justice is not a political appointee who should resign if the Government during which period he was appointed, is defeated in the general election.

Defending Daim’s Actions

Nonetheless, Mahathir defended Daim’s actions saying that, ” … Otherwise, the government may take action to remove them because we believe that the extension of their office as senior judges was not right.”

This appeared to be a replay of the Tun Abas episode, which was so galling that even a staunch DAP member like senior lawyer Ramkarpal Singh (son of the late DAP Chairman Karpal Singh) spoke out: “Prime Minister Dr Mahathir Mohamad’s defence of the Council of Eminent Persons for summoning the top two judges to demand their resignations, was ill-advised and against the rule of law … When it summons judges and demands their resignations, it will be seen as the government demanding their resignations which is in complete disregard for the principle of separation of powers … It is a basic hallmark of any democracy that the executive does not interfere in the affairs of the judiciary.”

Singh said that criticising the appointments of Raus and Zulkefli was not wrong, but it was “quite another matter to summon them and demand their resignations.”

So, after getting rid of Raus, Mahathir appointed former Chief Judge of Sabah and Sarawak Richard Malanjum as the ninth Chief Justice (who it then transpired, was a supporter of staunch Mahathir loyalist Shafie Apdal’s Warisan party, campaigning for PH in the Sabah state elections after his retirement in 2019.)

Mahathir replaced him with Fairuz’s former special officer Tengku Maimun Tuan Mat, as the country’s 10th Chief Justice. She ended up being the presiding (and remains the current) CJ when Mahathir stepped down for the second time.

I was also not surprised by the silence of the overwhelming majority of Najib’s supposed political allies and supporters, who, with the exception of UMNO President Zahid Hamidi, Vice President Mohamad Hasan and secretary general Ahmad Maslan, have all not uttered a word in support of Najib or expressed anger at the way Najib appears to have been railroaded.

But what I was really surprised at, was the fact that the various international judicial and human rights organisations have remained silent.

I am sure they are all fully aware of the fresh evidence Najib was attempting to introduce, which includes an alleged 26-page MACC report (that has now been leaked online) that pretty much shows SRC trial Judge Nazlan Ghazali had allegedly lied about his involvement as Maybank’s legal counsel in the setting up of SRC International and clearly showed the judge’s conflict of interest in Najib’s case.
A translation of Summary of the alleged leaked MACC report states:

4. … there is an offence under Section 220 of the Penal Code(para 2.1 and 2.2 in p/s 24.)

5. This refers to the violation of judicial ethics, which YA Mohd Nazlan has violated if he did not declare his interest and role in this case before exercising his judicial functions and responsibilities (conflict of interests.)

6. A judge must not only reduce the risk of judicial conflict but rather as that great maxim of the Judiciary states. “Justice must not only be done, but must also be seen to be done.”

Zaid Ibrahim, a former law minister (and previously one of Najib’s political opponents), a founding partner of one of the country’s most respected law firms, and recently one of Najib’s lawyers, said, “I have seen materials and the papers to state categorically that the fresh evidence that he (Najib) was seeking to admit would have had a nuclear effect on the issue of Justice Nazlan Ghazali’s conflict of interest and apparent bias in being the Trial Judge and passing Judgment and sentence on Dato’ Sri Najib.”

Does Najib Have No Rights?

“It is beyond belief that the highest Court in the land would deny Dato’ Sri Najib the right to adduce relevant material and necessary evidence to ensure that the truth is established and justice is done. The application was to show how manifestly egregious was the conflict of interest on the part of Justice Nazlan,” he added.

Now it appears that Attorney General Idrus Harun is unable to verify the authenticity of the leaked MACC report and claims that the MACC papers are not with the Attorney General’s Chambers even though he told the media in May that the AGC was in the midst of examining the MACC papers before deciding. This beggars belief.

As Zaid noted, “It falls on MACC now to confirm or deny the authenticity of the (leaked documents). It also falls on the AG to speak the truth, the whole truth, and nothing but the truth … Silence is no longer an option and will lead to a travesty of justice. I call on the AGC and MACC to come forward with the truth once and for all. I am also keen to know what the great defender of justice, the Bar Council, will say to this.”

I am also keen to hear what groups like Human Rights Watch, the International Bar Council and the political secretaries of the various embassies and High Commissions based in Kuala Lumpur will have to say.

These international organisations and diplomats have always followed very closely the political and legal developments in Malaysia and very often expressed “concern” or “worry” about Malaysia’s judicial and political system especially during Anwar Ibrahim’s Sodomy II trial and that of other Opposition leaders.

Yet, where are their voices now? Where is their “concern” and “worry” when it is so blatant that what is transpiring is a political persecution?

Not allowing the submission of new evidence showing a serious conflict of interest within the Judiciary. Insisting that the Counsel who no longer represents the appellant remains the counsel of record, thus leaving the appellant with no real legal representation. Ordering the Prosecution to present its case ahead of the appellant in a Federal Court appeal. Not giving the appellant any time for his new legal team to go through the years of submissions.

Anwar’s trial took over six years and Najib’s has lasted only four years. So, what difference would giving Najib’s legal team a few weeks or months more to be prepared, make in the grand scheme of things?

Aren’t any of these a cause for “concern” and “worry” about Malaysia’s judiciary and government?

Oh right, I forgot. Najib is not a cause celebre among many Ampang diplomats and human rights activists. Because regardless of the persecution he is facing, at the end of the day, they aren’t really interested in Justice or Democracy. – New Malaysia Herald

About the writer: Romen Bose is an international correspondent with over 22 years of reporting experience in the region. He worked as a Political Communications Consultant for former Malaysian Premier Najib Razak for six years and he recently published his book Final Reckoning, an insider’s account of the fall of the Barisan Nasional government in 2018.

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

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