The AG should be sacked as well for political cases filed by two previous gov’ts and for having a brother as Speaker!
It’s clear, based on the latest exchanges in public, between MACC (Malaysian Anti Corruption Commission) Chief Azam Baki and Attorney General (AG) Idrus Harun, that it’s not rocket science that the latter may have concluded that the investigation papers on Judge Nazlan can only benefit former Prime Minister Najib Abdul Razak. If true, Idrus Harun should be summarily dismissed by the Agong for obstruction of justice, a heinous offence in other jurisdictions.
The AG, who was appointed by the previous government, should be sacked twice over as well for not dropping political cases filed by two previous gov’ts and for having a brother as Speaker!
The bottomline: MACC should confirm whether it’s advisable that Judge Nazlan resign immediately based on the contents of the investigation papers on him. In law, the advice will stand up in the court of law and the Judicial Ethics Committee (JEC).
The judge’s resignation would confirm that he was party to illegalities on Najib’s RM42m SRC International case as well! The onus on the matter, if not taken to court, would lie with the JEC, as court of equity, based on good conscience and social justice.
Ex-AG Tommy Thomas
Ironically, based on “My Story: Justice in the Wilderness”, the memoirs by former AG Tommy Thomas, Chief Justice Maimun wasn’t properly appointed by the Agong. Her candidacy didn’t go through the Judicial Appointments Commission (JAC). In that case, although it may not be a walk in the park, Thomas should be dragged to court as well along with Mahathir Mohamad who misled the Agong on the CJ’s appointment. Thomas misled Mahathir who, having been Prime Minister for 24 years, should have known better but instead continued to behave like a Dictator. Old habits die hard. Mahathir has been called recalcitrant by a former Australian Prime Minister, and incorrigible and hardcore by others. The CJ’s appointment, based on the alleged fraudulent pretext, does not exist.
Powerful Mantra
In the court of equity, distinct from the court of law, it has long been conventional wisdom that “he who comes to equity must come with clean hands”. This may be among the most powerful Mantra in law, principle, maxim and saying.
Judge Nazlan appears to have run foul of not only the court of equity, but the court of law as well. Obviously, based reportedly on the Penal Code, MACC Act 2009, and money laundering laws, there’s a case to answer.
The MACC, which has the investigation papers, is at its wits end. The AG, in a desperate bid to kick the can further down the street and/or “buy time” for no rhyme or reason or “God alone knows why”, reportedly keeps sending the papers back to the MACC. The probe papers can’t be filed under “no further action” (NFA) without risking MACC’s displeasure, demoralising the AGC (Attorney General’s Chambers) and Judiciary, provoking further public outcry and coming to the attention of the Agong and brother sultan for all the wrong reasons.
Patently, the AG may be “toying” on the Judge Nazlan investigation papers in clear obstruction of justice. Again, the probe among others covers the RM42m SRC International case which saw Najib jailed on Tues 23 Aug 2022 although he was unrepresented. In digressing a little, based also on what transpired in court from even before Mon 15 Aug 2022, Najib’s conviction wasn’t perfected in law on Tues 23 Aug 2022. There was no finality of closure. The court didn’t even pay lip service to the rule of law, the basis of the Constitution. Instead, as in China under the CCP (Chinese Communist Party) Control Freaks, the court fell back solely on the letter of the law, and acted with impunity. In China, the court and the PLA (People’s Liberation Army) reports to the CCP. The people, as in Sarawak and Singapore for example, have lost their sovereignty to a small group in power.
Putting on Blinkers
The court at the three levels — High Court, Court of Appeal, Federal Court — put on blinkers and Ruled on the SRC case. Najib’s numerous attempts to adduce fresh evidence was thwarted on the grounds that it was “not relevant” to the RM42m. In the rule of law, the court should not only be fair but be seen to be fair. The court, based on what transpired, wasn’t seen as bending over backwards to be fair. There were elements of communism and gangsterism here. In the rule of law, the court should not only adopt a wide latitude in interpretation but resist going off at a tangent from Submission and including obiter dictum — opinions of the judge — in Ruling.
On Tues 23 Aug 2022, in remarks which should never be heard in the court of law, Chief Justice Maimun said the five-Person Panel did not read Submission from Defence, may not do so, and sees no reason to read anything. The Panel read Submission by the Ad Hoc Prosecutor, and fell back on the two earlier court Rulings, and draft Opinion/Ruling prepared by the mysterious Research Dept in the Judiciary, and Defence Submission in the Court of Appeal, to send Najib to jail. The draft Opinion/Ruling was widely available in the Internet on D-Day, Tues 23 Aug 2022, before the Ruling. The Research Dept may have been party to illegalities on the Ruling dated Fri 26 Aug 2022.
Political Prisoner
Najib remains a political prisoner. He should be placed under house arrest, by the Director-General of Prisons, pending Immediate Pardon for miscarriage of justice. The court has no jurisdiction. The DG has prerogative and discretionary powers unless abuse of power can be proven. The Raja Azlan Shah and Asian Arbitration case laws on abuse of power refer.
In the rule of law, the manner in which an accused is convicted comes first. It must comply with the court’s own practice directions and procedures — read “amalan, tatacara dan prosedur Mahkamah” (practices, timeline related to practices and court procedures) — and the rule of law.
In the rule of law, there’s 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 at all. It’s dictatorship!
Judge Nazlan had no business presiding, albeit argued belatedly in the Federal Court, on the RM42m SRC International case in the High Court. He stands recused.
It can be argued that the High Court also had no jurisdiction on the SRC case, based on government standing indemnified, having immunity, having implicit Pardon, for “acts in office” under the Basic Features Doctrine in the Constitution. The Doctrine permeates the Constitution, is inherent and implicit, whether mentioned or otherwise. Briefly, under the Doctrine, jurisprudence and constitutional law, the Constitution cannot go against itself.
Matter Not Before Court
There are many Articles in the Constitution, based on the content and context, which cannot be amended by Parliament. The Federal Court, sitting as the Constitutional Court, can declare on “acts in office”. The High Court did not seek such a Declaration probably because the matter wasn’t placed before it. No court, except perhaps in cases where a party acts in person, will assist, help or guide parties in dispute on issues in conflict. Therein lies the SRC case.
No court can go into the prerogative and discretionary powers of government and management for “acts in office”. Raja Azlan and Asian Arbitration, on abuse of power, cannot be read in isolation. They must be read together with the Basic Features Doctrine and the Doctrine of Separation of Powers.
True, there’s no Constitutional Court in Malaysia since there are very few cases, and local lawyers being weak on constitutional law and jurisprudence. Like the court, as noted by CJ Richard Malanjum in a farewell address, local lawyers swear — armed with bundles of authorities — by the letter of the law, by itself, as law. It isn’t law at all but dictatorship.
However, the Federal Court can sit as the Constitutional Court.
There may be a case, albeit belatedly but perhaps not too little too late, for Najib to seek Declarations in the Constitutional Court on “acts in office” while awaiting the Federal Court Review on the SRC case. Again, the court can only consider what’s placed before it. The court cannot read minds. Declarations may not be remedies but they have great moral authority and may be persuasive as Advisory Opinion.
Alternatively, given lacuna (gap) in local law, case law from Commonwealth jurisdictions may be Advisory Opinion which has Application based on principles in 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 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 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.
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