Floodgates Have Opened With The Jailing of Najib

Najib’s jailing shows no PM should be dragged to criminal court for alleged wrongdoing during term of office… Parliament or Court can ‘visit’ issue/s

According to Klang-born Aussie lawyer who blogs as Gopal Raj Kumar (not real name), there’s no rule of law in Malaysia as seen in the Najib jailing. See here.

The most important lesson that emerges from former Prime Minister Najib Abdul Razak’s jailing on Tues 23 Aug 2022 remains that henceforth no head of government, and probably no head of state, may be safe from criminal prosecution. If push comes to shove, they can be dragged by the Attorney General, a lesser mortal in government, to the criminal court for “acts in office”. See here.

If so, it’s an entirely complete misreading of the rule of law and the Constitution. It’s a defect which can be cured by the Constitutional Court and/or Parliament. Parliament, it must be stated, cannot free Najib from jail. Retrospective legislation is unlawful. However, the Constitutional Court can free the former Prime Minister if a declaration can be taken as a remedy by way of “Advisory Opinion”. Generally, declarations provide no remedy.

Parliament Should Close Floodgates Opened with the Jailing of Najib
Parliament should close floodgates opened with the jailing of Najib

When the court loses the way, only Parliament can cure the defect. Famous American lawyer Alan Dershowitz cautions that “Judges are the weakest link in our system of justice, and they are also the most protected.” See here and here.

When Parliament goes against the Constitution, only the Constitutional Court can cure the defect.

The rule of law is the basis of the Constitution. The letter of the law, by itself, isn’t law at all. It’s dictatorship.

In the rule of law, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law. The Federal Court ignored the spirit of the law in jailing Najib. It put on blinkers, acted with impunity — read Chief Justice — and fell back on the letter of the law, by itself, in citing the MACC Act 2009, the Penal Code, and laws on money laundering activities. The MACC Act 2009, which defines corruption as simple giving and taking, states that government contracts are not corruption. The Federal Court, unlike lesser courts, can adopt a wide latitude in interpretation, in upholding the rule of law. Let’s not ask which governments follow the rule of law. Instead, let’s ask how any Supreme Court can get away by violating the rule of law!

Pandora’s Box Opened For Najib

In law, a line must be drawn somewhere, lest Pandora’s Box Opens.

No court in the world would open the floodgates.

Yet, it happened in the SRC case, and Najib was jailed. The floodgates were opened, Pandora’s Box opened, and no line was observed in law.

Judge Nazlan may probably be brought before the Judicial Ethics Committee after GE15 and sacked by the Agong for “conflict of interest” on the SRC case. In that case, Najib’s conviction will cease to exist as if it never existed at all. The court has no jurisdiction.

It can be argued that the Prime Minister and Parliament stand indemnified, have immunity, and enjoy implicit Pardon for “acts in office”, whether in the Constitution or otherwise. If there’s lacuna (gap) locally, Agong can take the cue from the US Presidential Pardon system as an Advisory Opinion. Public office holders should automatically stand pardoned and/or receive a Pardon when they leave office. President Trump, for example, pardoned his daughter Ivanka and her husband Jared Kushner, two days before he left office on 20 Jan 2021. They were in no danger of being dragged to court.

Indemnification, immunity and Pardon cannot be challenged because they, in fact, are not law. The matter is nonjusticiable i.e. not for judicial consideration and resolution. The court has no jurisdiction. The court of law is only about law.

There’s case law on immunity.

In the Asian Arbitration (AA) case not so long ago, the Federal Court declared that Attorney General Tommy Thomas abused his powers under Article 145 in dragging the AA Director to court for alleged wrongdoing. The Apex Court found that the Director had immunity from prosecution. The alleged wrongdoing only arose if there was no immunity. Immunity could not be waived for prosecution to proceed. It’s not clear whether the Director could waive immunity. In any case, no Director in his right mind would waive immunity.

The Director, at last count, was suing the Attorney General for wrongful prosecution.

Najib, to digress a little, was reported by the media as suing the Attorney General for wrongful and malicious prosecution on the SRC case. We need further and better particulars on this and other cases that Najib faces.

Of course, there’s the Raja Azlan Shah case law on abuse of power. In fact, this is a “bad law” which can only be read in isolation. It falls apart if read with other laws and the Constitution. No court can go into the prerogative and discretionary powers of government and management. The court has no jurisdiction. Prerogative and discretionary powers are not law. The court of law is only about law.

Constitutionality Issues

The Constitutional Court can visit the constitutionality issues on Najib — without mentioning his name — being sent to jail for “acts in office” during his Administration from 2009 to 2018. This can be done separately by Originating Summons (OS) at the High Court for declaration on point/s of law and/or during the Federal Court Review on Najib’s conviction on the RM42m SRC International case.

The rule of law remains the basis of the Constitution. In interpreting the Constitution with reference to Najib’s jailing, the Federal Court sitting as the Constitutional Court, will visit the intention of the framers of the Constitution and the intention of Parliament on any amendments to the supreme law of the land on “acts in office”. The High Court will refer the OS to the Federal Court. Malaysia does not have a Constitutional Court. The Federal Court can sit as the Constitutional Court.

It may be safer to file the OS and at the same time raise the constitutionality issue/s during the Federal Court Review. If Najib’s lawyers are still hesitating on the Federal Court Review, it’s high time that they look at the Big Picture and shed their delusions and illusions, if any, on the rule of law. I stand corrected.

No Jurisdiction

Najib’s lawyers risk the Federal Court rejecting the Review Application on the RM42m SRC International case, and with good reasons too.

There are lessons in Malaysiakini filing Review in the Federal Court, not so long ago, against being fined RM500k by the High Court for allegedly facilitating contempt of court by five subscribers on former Sabah Chief Minister Musa Aman’s case, among others. He was freed of 46 corruption charges. Musa claimed the RM380m he collected — they were from timber contracts — were political donation. Malaysiakini subscribers went ballistic!

There’s no law in Malaysia on political donations. The court has no jurisdiction.

The Federal Court Ruled that it had no jurisdiction since the Review filed by Malaysiakini lawyers was actually an Appeal for another bite at the cherry. The Apex court struck out the Application.

Taking the cue from the Malaysiakini case, the Review Application on the SRC case cannot touch on Submission in the High Court and court of appeal lest the Federal Court Rule that it has no jurisdiction. The court of appeal Ruling and Federal Court Ruling would be within the ambit of the Review.

There was no Submission in the Federal Court and no Oral Submission. The Chief Justice had advised defence lawyer Hisyam Teh to make an Oral Submission. The CJ indicated that the Federal Court would be looking at High Court Judge Nazlan’s take on abuse of power. Lawyer Hisyam, it was implied, would be asked to make an Oral Submission on abuse of power. The lawyer declined.

No Fresh Submission

Earlier, after the Appeal proper began on Mon 15 Aug, lawyer Hisyam told the Apex court that he would make a fresh Submission on lawyer Shafee Abdullah’s Submission in the court of appeal. There was no fresh Submission.

In the rule of law, it’s not the conviction that comes first. The manner in which a person is convicted takes precedence. If conviction can’t be perfected in law, there has been no conviction.

There were real issues with the RM42m SRC International case in the Federal Court.

Anyone can be “fixed” considering the way the charges were framed. That’s why all nine judges in three courts said the same thing. Obiter Dictum is just the Opinion of the judge. It’s not part of the Ruling.

If the Debate goes back and forth, whether in court or outside, there are no prizes for guessing who will prevail. Obviously, it will be the one still standing. In the SRC case, the Federal Court did not allow the Debate to go back and forth. It was violation of the rule of law.

The SRC Ruling, being unanimous, was another violation of the rule of law. There must be dissenting judgment/s. Dissenting judgment/s facilitate Appeal and Review.

Constitutional Law

Let me assure readers, in keeping their interest going, that even 1st-year law students can visit what I have explored in the words written. Constitutional Law is a 1st-year subject covered in four examination questions for which three hours are given. Law students probably never touch the constitutional law textbook again after that. Yet, we are somehow expected to believe that the constitutional experts dubbed by the media are indeed constitutional experts. Shad Saleem Faruqi, Gurdial Singh Nijar, Abdul Aziz Bari, and Azmi Sharom, Sulaiman Abdullah, and Malik Imtiaz, among others, come to mind. There’s no money in constitutional law.

Law, ultimately, is the power of language. There must be perfection in writing for perfection in law. “It’s a bit of a mystery exactly on what skills lawyers bring to bear on cases in court,” cautions the law schools. Again, in keeping things in perspective, the “it’s not possible for anyone to know law” mantra permeates the content in law schools.

Former Attorney General Tommy Thomas for example, hailed as a constitutional expert, dragged Najib to court on several criminal charges including the RM42m SRC International case. If Thomas was really a constitutional expert worth his salt, he would not have dragged Najib to court. It was all politically-motivated at the behest of then Prime Minister Mahathir Mohamad.

Mahathir remains notorious for allegedly bringing politically-motivated cases against political rivals to get them out of the way, permanently if possible, otherwise temporarily. Mahathir was responsible for the Sodomy 1 and Sodomy 2 cases against Anwar Ibrahim, now parliamentary opposition leader. Mahathir revealed the Hidden Agenda when he told the media before, during and after the cases, that “Sodomy is a despicable act in Islam — no one really checked — the Malay will not accept sodomists as leaders”. Anwar, seriously damaged by Mahathir, lives to fight another day since he went early to jail. Mahathir is only interested in putting his allegedly corrupt and super duper-rich Family in power before he goes to the other side. He might yet haunt us all from there.

Mahathir’s children, based on their holdings in publicly listed companies alone, are ironically all multi-billionaires. This may be a world first on a rags-to-riches story in public office. It should be in the Guinness Book of World Records and the Forbes List of multi-billionaires.

Mahathir who stays in a glasshouse has been throwing stones at all and sundry. He has been pontificating sanctimoniously in the media on Najib in particular. In building up public perceptions against Najib and Umno from GE13 in 2013, Mahathir has been saying, “Najib curi (Najib stole)”, “Najib pencuri” (Najib thief), “Najib curi duit kerajaan” (Najib stole government money), and “Najib curi duit rakyat” (Najib stole the people’s money).

No court will visit conspiracy theories including those based on admissible hearsay. Therein lies the matter of Mahathir working through the judges he appointed for allegedly obstruction of justice, a heinous crime in the US. He also works through the media, an unthinking animal, which he manipulates on politically-motivated cases and political rivals.

Motion Under Rule 137

According to a comment piece, by senior lawyer Gerard Lourdesamy on social media, Najib’s lawyers could have almost immediately filed a stay of execution of his conviction and sentence after the Federal Court upheld the High Court and court of appeal Rulings on the SRC case.

“The stay can only be based on a motion under Rule 137 of the Federal Court Rules 1995,” said senior lawyer Gerard Lourdesamy. “The motion can set aside the decision of the Panel of the Federal Court on the basis that there was a fundamental breach of natural justice on the grounds of bias and the failure to give Najib a fair hearing.”

It did not happen. The motion would have been heard by a different Panel of the Federal Court.

The rest of the lawyer’s comment are not worth repeating. They further confirm that local lawyers are weak in jurisprudence, constitutional law, the Constitution and the rule of law. They should migrate to Japan which has the worst criminal justice system in the democratic world or China run BY law — not rule of law — under the ruling government Control Freaks. – 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 is 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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