The court, as evident from 1MDB charges, has degenerated into alleged “abuse of power”, based on bits and pieces, on prerogative and discretionary powers of government and management!
All the emerging evidence from all sides increasingly demonstrate, beyond a shadow of doubt, that the ordinary court of law isn’t the right and proper forum for the 1MDB Story on political donation. It’s a story for the Royal Commission of Inquiry (RCI) and/or the Constitutional Court. If there’s lacuna (gap) in local law, we have case laws from Commonwealth jurisdictions. These, having great moral authority, may be persuasive as Advisory Opinion.
Malaysia has no Constitutional Court. It isn’t enough that the Federal Court, in the absence of a Constitutional Court, can perform the role and functions without being found wanting.
It’s clear from 1MDB cases in court that the charges facing the accused, especially former Prime Minister Najib Abdul Razak, are about alleged “abuse of power” on bits and pieces on prerogative and discretionary powers of government and management. The court has no jurisdiction here unless “abuse of power” can be proven. Prerogative and discretionary powers are not law. The court of law is only about law.
There’s case law from Raja Azlan Shah and Asian Arbitration — it’s about immunity of diplomats — on abuse of power. The two case laws cannot be read in isolation. They fizzle out on principles in law when read on “acts in office” under the Basic Features Doctrine of the Constitution and the Doctrine of Separation of Powers.
True, opinion isn’t law, and only the Constitutional Court can declare law on the matter. If no one goes there, it’s because Malaysia lacks brilliant lawyers in jurisprudence and constitutional law. It’s the reality that there have been no dramatic novel developments here which have been declared as landmark Ruling based on novel developments in law.
Again, if there’s no Constitutional Court in Malaysia, it’s because there’s no money in constitutional law and hence there are very few cases. It’s when push comes to shove that the Federal Court sits as the Constitutional Court. It may be more about keeping up appearances, if not “keeping up with the Joneses'” in law.
The rule of law, the basis of the Constitution, calls for a separate Constitutional Court which can deal with cases like 1MDB, among others. If it has not happened, it’s because the government allegedly pays lip service to the rule of law and acts with impunity on policy making. At the same time, unlike in England for example, the dice is loaded against Applicants in Malaysia challenging public authority through Judicial Review. More on this on another day if Najib fails in his Judicial Review against the Home Minister on his Application to attend Parliament. The details are below in a Shafee Abdullah video carried by FaceBook.
The court of law, it can be argued, doesn’t even pay lip service to the rule of law. It puts on blinkers and acts with impunity. The court falls back on the letter of the law, by itself, as law. It isn’t law at all, as pointed out by Chief Justice Richard Malanjum in a farewell address. It’s dictatorship (my words).
Senior criminal lawyer Rakhbir Singh, for one, shudders at the mention of jurisprudence and constitutional law. He readily concedes that Malaysian lawyers hate both areas of law. Law, ultimately, is the power of language. It can’t be said that Malaysian lawyers have mastered the English language. Mastery is the pre-requisite for perfection in writing for perfection in law.
All these set the stage for what follows.
The Prosecution in Malaysia, plagued by unmitigated evil — for want of a better term — may have degenerated into bureaucratic approach in law (read irrelevant bundles of authorities and bad framing of charges for selective prosecution and selective persecution). The focus remains on winning convictions by hook or by crook.
We have in the words of Ad Hoc Prosecutor Gopal Sri Ram, during a press briefing about winning by hook or by crook, on the solar power project. He claimed that the Prosecution had discretion on “winning a conviction” as “otherwise, no one would be convicted”.
Rosmah Mansor, Najib’s wife, suddenly became the sole accused instead of turning up as probably Defence witness. Her Aide, Rizal Mansor — no relation — became prosecution witness after being the sole accused for two years. There’s no plea bargaining in Malaysia under the criminal justice system under our adversarial system of justice. Yet, there was plea bargaining. Rizal won’t be prosecuted for deriving personal benefit from bribery and corruption disguised as political donation. He leads a lavish lifestyle, as pointed out by Defence lawyers, complete with a fleet of luxury cars, flying here and there with family by private jet, and performing the umrah (minor pilgrimage) every year.
1MDB: Prosecution Withholding Evidence From Defence
The following video tells the story about the Prosecution withholding evidence from Defence. It’s tantamount to laying the groundwork for tainted Ruling arising from mistrial and miscarriage of justice. In law, such Ruling cannot be perfected in law.
The bureaucratic approach allegedly may be about getting political rivals for the Prime Minister’s post out of the way in favour of the Mahathir Family. The bureaucratic approach doesn’t pay even lip service to the rule of law, but falls back on the letter of the law, by itself, as law and acts with impunity.
Again, it should be reiterated that the letter of the law, by itself, isn’t law at all. It’s dictatorship.
No Conviction In Najib Case
It can be recapped that there was no conviction in Najib’s RM42m SRC International case on Tues 23 Aug 2022 when he was jailed. Patently, based on what transpired in court from even before Mon 15 Aug 2022 and the lower courts, Najib’s conviction wasn’t perfected in law.
It isn’t surprising therefore that the court of public opinion — it’s about cases in court — and the social media, by extension, have now generally become fence-sitters in a dramatic about turn after having long posted against Najib. In any case, the jury may no longer be out on whether Najib should stay even a minute longer in jail or hospital.
The gov’t would realise sooner or later, in the wake of the Najib and Rosmah cases, that the Judiciary isn’t what it’s cut out to be. There should be movement in government on the matter. Chief Justice Maimun should no longer be allowed to set up Panels in the superior court. Besides, former CJ Abdul Halim blogged that Maimun wasn’t properly appointed. He cites the evidence from former Attorney General Tommy Thomas’ probably inadvertent “true confessions” in his memoirs, My Story: Justice in the Wilderness.
Mahathir Mohamad, the Dictatorial Prime Minister for 24 years, may either be getting bad advice or is an evil genius on law in M’sia.
The social media has alleged that Mahathir may still be manipulating the judges that he appointed. – 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.