Agong, in explaining dissolution of Parliament, has given the strongest hint on Pardon for former Prime Minister Najib Razak
It’s not inconceivable that former Prime Minister Najib Abdul Razak will defend the Pekan parliamentary seat in GE15. Agong, in explaining the dissolution of Parliament, has given the strongest hint on Pardon for the former prime minister.
There’s no law against Najib defending the Pekan parliamentary seat. In India for example, a Commonwealth jurisdiction, the Supreme Court Ruled that those in detention, but not convicted, can offer themselves as candidates in an election. In Malaysia, there’s lacuna (gap) on the matter. Case law from Commonwealth jurisdictions can be used as an Advisory Opinion in Ruling on the subject.
There must be law before there can be crime.
The principle of nullum crimen sine lege or nullum poena sine lege (NCSL) applies. Translated, this means “no crime without law” or “no punishment without law.” This principle is meant to prevent the prosecution and punishment of a person for an act which at the time of its occurrence was not a law and the accused had no reasonable belief that his or her act was criminal.
Najib can file originating summons, based on certificate of urgency, to seek a declaration on a point of law from the Constitutional Court. There’s no Constitutional Court in Malaysia. However, when push comes to shove, the Federal Court as the Apex Court can sit as the Constitutional Court.
Alternatively, Najib can persuade the Returning Officer in Pekan on nomination day of his eligibility as a candidate. The Returning Officer has discretion on the nomination. If he or she rejects Najib’s nomination, there’s a case for judicial review, based on alleged “abuse of power”. Discretion isn’t law. The court has no jurisdiction i.e. it’s not a matter for judicial consideration and resolution.
However, the Returning Officer can be dragged to court for abuse of power, discrimination under Article 8, Article 5 (right to life) and defence of property rights under Article 13. A legislative seat belongs to the holder unless defeated in an election. It can’t be taken away without an election if the holder has been nominated. In law, to digress a little, there must be compensation for loss — read anti-hop law — of property.
There’s case law on abuse of power from Raja Azlan Shah and, more recently, from the Asian Arbitration case.
Najib’s “conviction” in the RM42m SRC International case wasn’t perfected in law on 23 Aug when the Federal Court jailed him. He was unrepresented. Still, the Federal Court Ruled there was finality of closure, although there has been no finality of closure, given what transpired in the three courts, and “conviction not being perfected in law”.
Najib Was Unrepresented
In criminal law, under the criminal justice system and adversarial system of justice, no one can be convicted if he or she isn’t represented in court.
In the rule of law, the basis of the Constitution, how an accused is convicted comes first. No one can be convicted in violation of the rule of law.
In the rule of law, no one is above the law, all are equal under the law, there can be no discrimination, and where there are rights, there are remedies. Again, in the rule of law, there’s a 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. There’s no democracy and no legitimacy.
The Federal Court didn’t pay even lip service to the rule of law. It wasn’t mentioned in the Ruling. Instead, the Apex Court fell back on the letter of the law, by itself, as law. It acted with impunity in jailing Najib.
The manner in which the 5-Person Panel on the SRC case was set up has been disputed by ex-Chief Justice Abdul Halim in a Blog piece. Abdul Halim, drawing on the former Attorney General Tommy Thomas’ memoirs, “My Story: Justice in the Wilderness”, pointed out that Chief Justice (CJ) Tengku Maimun Tengku Mat wasn’t properly appointed. Anyway, let’s not go there. It serves no purpose. Agong has discretion on CJ Maimun’s appointment. The 5-Person Panel being party to illegalities may be academic i.e. there’s no live issue.
Much has been made of nine judges from three courts telling the same story. It’s not surprising when considering how the charges were framed. There was no latitude for Najib.
The three courts put on blinkers and ruled. There wasn’t even one dissenting judgment in the Court of Appeal and Apex Court. It defeats the purpose of setting up Panels if there isn’t going to be even one dissenting judgment. Dissenting judgments facilitate Appeal.
The Federal Court Review of the SRC case can make amends if the Panel can adopt a wide latitude in interpretation. The Panel will consist of more judges. It can’t include the nine judges. It’s not known how the Review Panel will have the quorum.
In retrospect, the High Court had no jurisdiction over the SRC case. Under the Basic Features Doctrine (BFD) which permeates the Constitution, the BFD whether written or otherwise, inherent and implied, a government stands indemnified for “acts in office”, has immunity and implicit Pardon. The Constitutional Court can declare the law on the matter via the High Court. Unfortunately, Najib did not go there. It may not be still too late. The matter can also be raised in the Federal Court Review. The Federal Court may advise Najib to approach the Constitutional Court via the High Court.
Proceedings in the Federal Court Review will be stayed until the Constitutional Court declares the law on “acts in office” and the BFD.
Matters Before Court
The court can only consider what’s placed before it. The court cannot read minds, advise, or guide parties in disputes on issues in conflict. The court may advise and guide a party in dispute Acting in Person in a civil case. The court will discourage Acting in Person on a criminal case. If the accused can’t afford the services of a lawyer, the court will appoint one. The legal representative will act pro bono (free of charge).
Even before 15 Aug 2020, it can be argued that the oft-cited practice directions and the “Amalan, Tatacara dan Prosedur Mahkamah” (practice, timeline related to practice, and court procedures) were being observed in the breach in the three courts.
In the Federal Court, CJ Maimun said the 5-Person Panel did not read the Submission from the Defence, may not do so, and saw no reason to do so. It read Submission by the Prosecution and fell back on Defence Submission in the Court of Appeal, and the earlier two court rulings i.e. at the High Court and the Court of Appeal and jailed Najib.
Besides not allowing an extension of time — i.e. three to four months for Submission — the Federal Court did not allow Najib to adduce fresh evidence which, if known earlier and/or placed before the court, would have forced High Court Judge Nazlan to recuse himself. The Federal Court held that the fresh evidence wasn’t relevant to the case, that it was not related to the main RM42m charge, and in any case should have been raised earlier in the High Court. The fresh evidence wasn’t about the RM42m but the fact that Judge Nazlan stood recused in the High Court.
No court will go into the prerogative and discretionary powers of government and management unless abuse can be proven. Even so, case law on abuse of power cannot be read in isolation. They have to be read with the BFD and the Doctrine on Separation of Powers.
The first duty of a government is to maintain confidence in the government itself, economy, market, stock market and currency. Instead, the three previous governments rushed to judgment on the BN government from 2009 to 2018.
Separate RCI should have been set up for speaking truth to power and reconciliation. These may be categorised as “acts in office” from 2009 to 2018 including indemnification and the “amnesty” offer in 2015, the IPO (initial public offering) being aborted and causing 1MDB’s failure, 1MDB political donation and business model, RM3.6b SRC funds frozen in Switzerland, MACC papers on Judge Nazlan, political cases initiated by Pakatan Harapan (PH) under Mahathir Mohamad against Umno leaders and the 15 criminal cases dropped by the PH coalition.
There’s also a case for RCI on the Special Task Force Report on former Attorney General Tommy Thomas’ controversial memoirs, “My Story: Justice in the Wilderness”. – NMH
About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly the 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 South China 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.