The RCI on SRC would be quicker while that on Judge Nazlan can be completed in 14 days i.e. before GE15
Five separate Royal Commission of Inquiry (RCI), running concurrently, may be needed on former Prime Minister Najib Abdul Razak for the finality of closure on his Administration from 2009 to 2018. It would be about taking a global strategic basis approach to speaking truth to power. It would be better for Agong to act late than never on truth and reconciliation.
These five separate RCI may be categorised as 2009 to 2018 including indemnification and the “amnesty” offer in 2015, the IPO (initial public offering) being aborted and causing 1MDB’s failure, RM3.6b SRC funds frozen in Switzerland, MACC papers on Judge Nazlan, and political cases initiated by Pakatan Harapan (PH), under Mahathir Mohamad, against Umno leaders and the 15 criminal cases dropped by the PH coalition.
The SRC charges were framed in such a way that Najib had very little chance when the prima facie case was made out. That’s why all nine judges said the same thing. More on the RCI later. See here.
For starters, in setting the stage for RCI, Prime Minister Ismail Sabri Yaakob can summarily sack Attorney General (AG) Idrus Harun, appointed by (anti-Najib) predecessor Muhyiddin Yassin, if he (AG) opposes Najib’s Federal Court Review on the RM42m SRC International “political” conviction which was upheld on Wed 23 Aug 2020. The AG and the court can’t be seen as being part of illegalities. Najib was the only one charged in the SRC case. See here
Maximum Six Months
The Federal Court can’t decline to rule on the Review Application or keep an ominous silence. It should come back within a reasonable period of time viz. probably within a maximum of six months.
Already, Najib has applied for a stay of execution on the 12-year jail sentence meted out and the disproportionate RM210m fine pending the outcome of the Review Application. The Federal Court can Rule on the stay in days. The AG should not express objections. Stay should be given since the Review, in the absence of the AG, would render academic the sentence and jail.
In the rule of law, the manner in which a person was convicted comes first, conviction comes later. Based on what transpired in the Federal Court, Najib’s SRC conviction could not have been perfected in law. It isn’t enough to sign the conviction after recording it following the pronouncement by the Chief Justice. That’s no proof the conviction was perfected in law. The process before pronouncement may be flawed and not in compliance with the rule of law. See here
The AG is part of the government, not the judiciary. The PM can instruct the AG on political cases. It’s not interference in the criminal justice system. The PH government, for example, installed after GE14 on Wed 9 May 2018, dropped criminal cases initiated by the previous BN (Barisan Nasional) government. PH considered them “political” cases. Umno leaders have publicly vowed to revive the 15 cases after GE15 i.e. if they seize the reins of power in Putrajaya. BN considers these cases criminal, not political.
It was Mahathir who directed AG Tommy Thomas, not a criminal lawyer, to bring the SRC and other cases against Najib.
The wife, Rosmah Mansor, and several Umno leaders — dubbed the “court cluster” — also found themselves facing political cases in court and risking disproportionate fines and jail sentences. Political donation — not discouraged by law — is being presented by the Prosecution as deriving personal benefits based on bribery and corruption. There was selective prosecution for selective persecution and allegedly plea bargaining to virtually force witnesses to testify against the accused. Unlike in the US, for example, there’s no plea bargaining in Malaysia under the adversarial system of justice. The judge is a mere referee. He or she does not advise the players on the game.
Many lawyers at the Attorney General’s Chambers (AGC) refused to be a party to illegalities. The AG drafted ad hoc prosecutors from among the allegedly most notorious and unscrupulous criminal lawyers in private practice.
At the same time, in a contradiction in terms, the High Court denied an Application by English QC Jonathan Laidlaw to represent Najib. The court ruled, with a straight face, that Laidlaw doesn’t know Bahasa Melayu viz. the national language. Order 92, Rule 1, of the Rules of the High Court 2012 on the national language may be redundant i.e. Bahasa Melayu being no longer in official use by 1969. The 40K word Bahasa Malaysia replaced the 20K word Bahasa Melayu. Besides, English is the language of law in the superior courts in Malaya, and the court in the Borneo Territories (Sabah and Sarawak). The Constitution came first in the English language. Bahasa isn’t the valid version in law.
Sword Of Damocles
The Sword of Damocles, brought by the political cases against Najib, hangs over the PM’s and AG’s heads. Already, even “poster boy” Ismail Sabri’s candidacy in GE15 as a BN candidate hangs in the balance. At this writing, none of his supporters will probably be fielded by BN in GE15 as there’s no reason for Umno to be happy with him. Party President Ahmad Zahid Hamidi decides.
The AG can take the “don’t oppose” cue from the PM who reportedly didn’t expect Najib to be sent to jail by the Federal Court. The AG was caught napping and/or with his pants down on Najib being suddenly jailed. The Federal Court denied the hearing and denied the debate going back and forth until closure. The closure came before finality. Najib was unrepresented on Wed 23 Aug 2022 i.e. the day he was jailed. Hisyam Teh, the lone lawyer, had already discharged himself.
The AG should have withdrawn the Prosecution Submission in the Federal Court Appeal on Mon 15 Aug 2022 since Najib was virtually unrepresented. It did not happen. Najib was sent to jail. Apparently, the PM told Umno leaders behind closed doors that he was shocked by Najib’s jailing. Anwar Ibrahim’s Sodomy 2 case went on for nearly nine years before he was jailed. Agong found a miscarriage of justice and gave him Pardon.
We can recall that Najib’s new defence team could not oppose the Prosecution’s Submission. They were not given an extension of time. See here also for details on what the proposed structure of the Federal Court Review entails.
Abuse Of Process
The Apex Court, under Rule 137 of the Rules of the Federal Court 1995, has inherent power, among others, to review previous decisions on grounds of injustice and abuse of process.
The rule specifically states: “For the removal of doubts, it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court.”
If the Federal Court Review decides in Najib’s favour, the case will probably be reheard before another Panel. See here.
The video may be only about the letter of the law. It does not mention special circumstances, exceptions, caveats, qualifiers, ifs and buts. The video may not apply to political detainees, others under house arrest, restricted residents and those detained under security laws.
In the case of the Malaysiakini’s Application, not so long ago, the Federal Court said it had no jurisdiction and denied the Application for Leave and/or struck out the Review.
The Federal Court held that the Review was actually an Appeal for another bite at the cherry. The case cannot be reopened.
RCI – The End Of Najib’s Troubles
Najib’s Application for Federal Court Review can run concurrently with other efforts viz. Petition for Pardon, Application for house arrest, restricted residence (RR) and Royal Commission of Inquiry (RCI) on the Najib Administration 2009 to 2018 including indemnification and the “amnesty” offer in 2015, the IPO (initial public offering) being aborted after the Opposition’s hue and cry and causing 1MDB’s failure, RM3.6b SRC funds frozen in Switzerland, MACC papers on Judge Nazlan, and political cases.
The Petition for Pardon was reportedly filed within the 14-day limit from Wed 23 Aug. Veteran opposition statesman Lim Kit Siang may be implying in the following link that he isn’t telling all that he knows on Immediate Pardon for Najib. See here.
An RCI on SRC would be quicker while that on Judge Nazlan can be completed in 14 days i.e. before GE15. The RCI would probably find that the Najib Administration stands indemnified, has immunity, and an implicit Pardon governed by the Doctrine of Separation of Powers and the Basic Features Doctrine.
The Basic Features Doctrine — whether written or otherwise — in the Constitution holds that the prime minister stands indemnified, has immunity and an implicit Pardon for “acts in office”. The jury may no longer be out on the issue. The court has no jurisdiction. “Acts in office” are nonjusticiable i.e. not for judicial consideration and resolution. Indemnification, immunity and implicit Pardon and Pardon are not law. The court of law is only about law.
Better Late Than Never
Again, Agong’s consent for the RCI would be better late than never. The question may arise on who bells the cat. Let’s not go there until the need arises. There were media reports quite some time ago that Ismail Sabri’s government was toying with the idea of RCI on 1MDB. If that happens, it will stretch for months as evident from the 2012 RCI in Sabah on Illegal Immigrants, and can’t help Najib win quick release from jail for GE15. Again, the former prime minister needs a quick RCI, on Judge Nazlan, for example. It’s not known how long a RCI on SRC or 2009 to 2018 would take and whether they can be completed before Parliament stands automatically dissolved, i.e. with or without the Agong’s consent, in late July 2023.
A quick RCI in Najib’s favour would be at the end of his troubles as he would not have to spend even a day longer than necessary in detention. The SRC conviction and other cases against him, all criminal, would cease to exist as if they never existed. The court has no jurisdiction.
High Court Judge Nazlan was in a “conflict of interest” situation when he presided over the SRC case. He should have recused himself. The hearsay, being admissible, would have rendered SRC in the High Court a mistrial. The Federal Court would have to set aside the High Court Ruling. It can send the case back to the High Court to be heard before a new judge or hear it in the Federal Court.
The onus is on Agong to advise the Chief Justice, Tengku Mainun, to drag Judge Nazlan before the Judicial Ethics Committee before sacking him. Once Judge Nazlan was sacked, the SRC Ruling will cease to exist as if it never existed. Najib would be freed. If Judge Nazlan had ruled that the High Court has no jurisdiction in the SRC case, the matter of recusal would not arise.
The MACC, according to media reports, completed investigations into Judge Nazlan for alleged offences under the Penal Code and sent the Investigation Papers to the AGC. The AG, in a media statement, denied receiving the Papers. The public has the right to know the status of these papers. The Asian Arbitration case on abuse of power by the AG refers.
Najib can also bring an abuse of power case against the AG on Judge Nazlan, based on certificate of urgency, if the Judge isn’t dragged to justice for alleged offences under the Penal Code. He can file Discovery Application on the MACC papers on Judge Nazlan.
Najib was reported by the media as suing the AG for wrongful and malicious prosecution of the SRC case. We need further and better particulars on this and other cases that Najib faces.
Pardon Before GE15
If the Agong, in making haste slowly, does not respond to the Petition for Pardon before GE15, Najib can file an Originating Summons (OS) on being a candidate in general elections. If the OS gets a favourable response, Najib can file nomination papers for the Pekan parliamentary seat in Pahang. See here.
If Najib is returned, it can be taken as the people’s Referendum on the RM42m SRC International case.
Article 48(5), i.e. disqualification “for the purpose of nomination, election or appointment of any person to either House of Parliament”, may not apply in Najib’s case.
It can be argued that as the conviction was not perfected in law, in his case, he remains a political detainee under house arrest but is confined, reportedly, to a vacant prison officer’s house within the prison complex in Kajang.
Initially, it was reported that Najib was placed in a special VVIP cell next to the Prison hospital. He may have been under observation some of the time in the prison hospital before being transferred to the Kuala Lumpur Hospital for a series of blood and other tests. He was not admitted overnight, according to a family member in the media. – 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 NMH.
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.