M’sia no longer about rule of law but paying lip service, acting with impunity with the SRC case involving Najib!
Beyond what the writer in the link that follows has written, the real issue cropping from the Najib SRC case may be that Malaysia no longer subscribes to the rule of law, the basis of the Constitution. The syariah court — it’s not court of law but Tribunal — may also be punching above its weight at the expense of the civil court which appears meek, weak and helpless on the rule of law. See here.
The Malaysian government, like that in the US for example, allegedly pays lip service to the rule of law and acts with impunity. The US Supreme Court may be about the rule of law.
The court in M’sia probably doesn’t even pay lip service to the rule of law. It appears to be acting with impunity and belabouring in the delusion that the letter of the law, by itself, is law. It isn’t law at all. It’s dictatorship. See here.
The court of law isn’t about justice but the rule of law, the basis of the Constitution. The court of law isn’t about ethics, moral values, theology, sin, God, justice, truth or the civilisational values in Sanatana Dharma, Buddhist Dharma or Confucianism and/or China.
The rule of law isn’t black and white as in the letter of the law, by itself, being passed off as law. It isn’t law at all. The rule of law comes in various shades of grey. There are exceptions, qualifiers, caveats, ifs and buts, and special circumstances.
Najib was denied the three criteria which make up law viz. common sense, universal values and the principles of natural justice. The SRC Ruling cannot be considered perfection in writing for perfection in law. The Ruling was leaking all over the place as it wasn’t based on the rule of law. There were so many holes left unplugged, and dictatorship was evident as in China where the court and the PLA (People’s Liberation Army) report to the Chinese Communist Party (CCP). See here.
In the US, the Dept of Justice (DoJ) will file civil action to freeze, seize and forfeit assets under money laundering laws. It’s more important to get the money back. Sending suspects to jail does not get the money back. It does not benefit the people. The DoJ will only file a criminal case if the civil action is challenged.
In M’sia, the government, the Attorney General’s Chambers (AGC) and court may be in “cahoots” and playing politics with inherently civil cases filed as criminal cases.
No Civil Action Against Najib
The Attorney General (AG) didn’t bring civil action against Najib. There’s no proof that he stole money.
There’s no place for emotions, prejudice, bias and hate in law. The Chief Justice (CJ) may have Ruled on the RM42m SRC International case without “consulting” the other four Members of the Panel and hence the Ruling was unanimous. If so, it was a violation of the rule of law. I stand corrected. See here . . .
Based on the personal opinions mentioned in the link, all controversial, the CJ should have recused herself. She had the dignity to do it. Face may have got in the way. There’s no shame in recusal.
Malaysia has for a long time been emerging in law as another Japan, and China too for added measure, as the rule of law may have ceased to exist. Malaysia should be taking its cue from India and Commonwealth jurisdictions on the rule of law. The Federal Court should emulate the Supreme Court of India on Ruling on Submission and Declaring on law.
Najib has repeated, once too often, that he wanted to clear his name through the court. It was not possible, given the way the AG had framed the charges. There was fiction mixed with fantasy on deriving personal benefit based on bribery, corruption and money laundering arising from abuse of power, conflict of interest and criminal breach of trust. The lawyers, perhaps being on unfamiliar grounds on the rule of law, jurisprudence, constitutional law and the Constitution, may have been bogged down in court by the multiplicity of issues coming at them from all sides.
Abuse of power and conflict of interest were under the MACC Act, criminal breach of trust under the Penal Code and money laundering under AMLA.
It was not clear where these acts, and case laws cited, stand on the Doctrine of Separation of Powers and political donation. The Federal Court avoided the term political donation like the plague.
In former Sabah Chief Minister Musa Aman’s case, the High Court allegedly accepted without verification that the RM380m that he collected — it was allegedly from timber contracts — were political donations. He was freed.
In fact, the 46 charges against Musa may not have been fiction mixed with fantasy on deriving personal benefit based on bribery, corruption and money laundering arising from abuse of power, conflict of interest and criminal breach of trust.
It’s untenable to say that the Prime Minister has no immunity under this Act or that Act. No Act can take away the judicial power of the Federation.
Judicial power is inherent, implied, under the basic features doctrine — whether written or otherwise — in the Constitution.
It’s obvious that the terms “acts in office” and “rule of law” were missing from the Federal Court’s finding on the court of appeal seeing no reason for interference in the High Court Ruling on the RM42m SRC International case. The Apex Court, like the court of appeal, saw no errors in facts and no errors in law, based on the way the charges were framed. It was kamikaze. Hara kiri was the only way out for those charged.
The Federal Court avoided the term, “wide latitude in interpretation”, and belaboured in the delusion that the SRC case was simple and straightforward.
There are shades of the Milo stealer here. The Milo stealer, it must be recalled, was fined and jailed almost as soon as he left the supermarket with the tin. If there was rule of law in Malaysia, the court would pause to consider that, in law, punishment cannot be disproportionate. It would be unlawful.
The Federal Court did not explain how all the case laws cited, whether settled or otherwise, covered “acts in office” as well.
In the Asian Arbitration case, the Federal Court Ruled that the AG had abused his powers by dragging the Director to court for alleged wrongdoing. The Director had immunity. Wrongdoing arose if immunity could be waived. The Director could also waive immunity.
If even diplomats have immunity under the rule of law, it can be read that by the spirit of the law, the Prime Minister and Parliament stand indemnified, have immunity, and implied and/or implicit Pardon for “acts in office”.
In that case, the court has no jurisdiction.
The Federal Court can make declarations on points of law. It would have to examine the constitutional issues at stake in the SRC case.
Putting Future PMs At Risk
The court cannot open the floodgates i.e. putting all future PMs at risk. In law, a line must be drawn somewhere between government and court, and between Executive and Judiciary, lest Pandora’s Box opens. The Doctrine of Separation of Powers, Cabinet system based on the consensus principle and collective responsibility, the prerogative and discretionary powers of government and management and the organisational structure based on compartmentalisation — no one person knows everything — and checks and balances would have to be revisited by Parliament and the court.
Even if Najib had “overarching” control of SRC International, he could not have acted alone. The rule of law would see that and Rule and/or Declare accordingly.
If it’s not written somewhere, anywhere, the onus was on the Federal Court in the SRC case to discover novel areas in law and declare them as law even if the lawyers failed to look for the law and point it out. Ironically, the lawyers could not persuade the Apex Court on anything. Their Applications were rejected almost immediately one after another.
Instead, having put on blinkers, the Federal Court saw no novel areas and belaboured in the delusion that the letter of the law, by itself, was law. It was not law at all. It was dictatorship as in China under the yoke of the CCP Control Freaks.
15 Areas Cause Concern
15 examples suffice to show that we no longer have rule of law in Malaysia. See here . . .
The High Court may have had no jurisdiction to hear the SRC case. Yet, the High Court Ruled that a prima facie case had been made out. That was a violation of the rule of law;
Alternatively, High Court Judge Nazlan stands recused, albeit as an afterthought during the Federal Court Appeal;
The High Court rejected Najib’s Application to be represented by QC. This was a violation of the rule of law;
The Federal Court rejected the introduction of new evidence in the SRC case. It did not differentiate between admissible hearsay and inadmissible hearsay. This was a violation of the principles of natural justice and the rule of law;
The fact that the 5-Person Federal Court Panel Ruled unanimously proves it wasn’t based on the rule of law. In the rule of law, there must be dissenting judgments. If it was not possible with the 5-Person Panel, the Federal Court should have increased the number on the Bench to 7, 9 or even 11 so that there are dissenting judgments in line with the rule of law. Dissenting judgement facilitates Appeal and Review.
The Federal Court, in a violation of the rule of law, rejected Application by new lawyer Hisyam for three to four months adjournment for the SRC case;
The 5-Person Federal Court rejected the plea for more time unanimously. The fact that there was no dissenting judgment was a violation of the rule of law;
The Federal Court rejected Application by new lawyer Hisyam to discharge himself. This was a violation of the rule of law;
The 5-Person Federal Court unanimously rejected lawyer Hisyam’s Application to discharge himself. The fact that there was no dissenting judgment was a violation of the rule of law;
The Court of Appeal rejected automatic citizenship for children born overseas to Malaysian mothers married to foreigners. This was a violation of the rule of law. Most of these mothers are reportedly trapped in abusive relationships and the court callously looks the other way. It said the children can apply for citizenship, but not under operation of law, but failed to direct the government to issue citizenship immediately under other Articles in the Constitution.
The Court of Appeal rejected automatic citizenship unanimously. The fact that there was no dissenting judgment was a violation of the rule of law;
The High Court keeps pointing at the syariah court, a Tribunal, for MyKad matters brought before it. This is a violation of the rule of law. The court of law can’t get into theology. The court has the jurisdiction to direct the National Registration Dept (NRD) to remove religion from the MyKad;
It was the Federal Court which ruled against the Catholic Church’s Herald, a weekly, on Allah after citing the Ananda Marg case in India. Ananda Marg was not law in Malaysia and although there was lacuna (gap) in local law, it could not be used as Advisory Opinion because the principle in law, as cited, wasn’t applicable. The Federal Court, with a straight face, pontificated sanctimoniously in obiter dictum, in implying, that there was a Muslim God and a Christian God. It further implied that only the Muslim God could be Allah. Allah was for Muslim;
Obiter dictum — opinions and comments — cannot be used in Ruling. In jurisprudence, the court cannot get into theology;
The Apex Court did not read — perhaps saw no reason as the court was not about theology — the 300 Pages submitted by the Church on the history of Allah in Christianity in the Middle East, Borneo and the Archipelago.
Obviously, those in the court of public opinion who support the Prosecution on the SRC case can’t fathom the rule of law and dissenting judgment. The court of public opinion has always been about cases in court. See here. – 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.