Najib Unlikely To Get Fair Play From FC Review

In Malaysia, unlike in England for example, judicial review remains uphill task for Applicants!

Shafee Abdullah, former Prime Minister Najib Abdul Razak’s lawyer, may do well if he recalibrates arguments on dead-end nitty gritty details for the Federal Court Review on the RM42m SRC International case.

These include the purported five letters from Saudi Arabia on political donation. The political donation argument has already been disregarded at the High Court on the SRC case. It’s like flogging a dead horse if the five letters are reiterated in a last ditch effort. It cannot be denied that the letters, being circumstantial evidence, may not meet the criteria on corroborative evidence under the Evidence Act 1950. In criminal cases, circumstantial evidence isn’t accepted. Read here.

It’s inconceivable that the Federal Court in Review would go against the High Court, the court of appeal and the Federal Court. The three courts and nine judges pooh-poohed the story that Najib received political donation from the Saudi royal family and Finance Ministry. The court of law isn’t about truth but only about law. Also, the court isn’t about ethics, moral values, theology, sin, God, righteousness or justice.

The court of law, rightly or wrongly, remains about finality of closure even if there has been no closure.

Persuading The Review Panel

It would be more helpful if Shafee tries to persuade the Review Panel that 1MDB’s business model was, among others, about generating political donation including through the digital world and financial technologies involving cryptocurrencies and blockchain technology. Like Shafee, the Review Panel may not be familiar with financial technologies, the latest buzzword in the digital world. They should consult subject matter experts on the phenomenon.

The court can only consider, if it does, what’s placed before it. It can’t read minds. The court should only Rule on Submission. It cannot include obiter dictum — opinion of a judge in court — in Ruling or go off at a tangent from Submission to Timbuktu.

Beyond Shadow Of Doubt

If asked for proof on political donation, Shafee can cite the five letters from Saudi Arabia. If the Review Panel disregards the five letters and looks the other way on giving Najib the benefit of the doubt on the reason why 1MDB was set up, it must be convincing “beyond a shadow of doubt” in the Ruling. Otherwise, it would be a fatal flaw in law. Again, we are reminded here that the court of law isn’t about truth but law.

Already, fugitive fund manager Jho Low, linked with 1MDB’s financial strategies, failed to turn up in court in Malaysia. That’s because financial technologies are generally driven by personal-to-holder trade secrets. Jho Low settled out of court, without prejudice i.e. without admitting liability, with the US Dept of Justice (DoJ) on 1MDB monies. He would have been forced to disclose at least some trade secrets if he had turned up in court.

Riza Aziz, Jho Low’s college mate and Najib’s stepson — also wife Rosmah’s son by a previous marriage — settled out of court with the DoJ. It’s unlikely that he knows anything about financial technologies. Riza would have been advised by Jho Low to settle out of court. He also settled out of court in Malaysia on the same settlement with the DoJ. It was all about avoiding washing “dirty linen” in public.

Merchant bank Goldman Sachs, which worked closely with Jho Low on 1MDB, likewise settled with DoJ out of court, without prejudice. They surrendered US$600m in 1MDB fees. That means Goldman Sachs has sacrificed its entire fees received from 1MDB. Again, it was more important that they protect trade secrets. They have also agreed, as part of the out of court settlement, to help trace other 1MDB monies which may be found here and there outside Malaysia.

Najib Handicapped

Najib remains handicapped in court cases on 1MDB because he isn’t privy to the trade secrets which permeate financial technologies. The court isn’t the right and proper forum for the continuing 1MDB Story.

Putrajaya should have set up a Royal Commission Inquiry (RCI), or a few RCI, on various issues related to 1MDB viz. “acts in office” 2009 to 2018 including indemnification, the “amnesty” offer in 2015, the IPO (initial public offering) being aborted and causing 1MDB’s failure after the Opposition raised hell in the media, 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.

1MDB isn’t new for merchant bankers and fund managers. Those who Google can find out more about their controversial “moral hazard” operations in the 3rd World in particular. Merchant bankers and fund managers preceded China’s controversial debt-trap diplomacy in Pakistan, Sri Lanka and Africa. It’s now known that 3rd World leaders collected billions in political donation from China’s debt-trap diplomacy approach. China continues to be highly secretive on these operations. Beijing’s pawmarks can also be found in 1MDB operations through Jho Low.

Procedures

In Malaysia, the first focus in judicial review Application is on procedures.

The court only looks at the merits of the Application if there was non-compliance on procedures.

Prosecution should focus on procedures first. The Prosecution claims that Najib’s application to review the Federal Court decision has no merit.

In Malaysia, unlike in England for example, the court in judicial review Application does not go into whether procedures were unfair. This may be tantamount to obstruction of justice, a heinous crime in other jurisdictions, disruption, distraction and depravity arising from losing the moral high ground.

The Defence should focus on non-compliance on procedures, and where there has been compliance, on the unfairness of procedures. The Agong would take an interest in unfairness of procedures for Immediate Pardon.

Finally, the Defence should focus on the merits of the Application.

Immediate Pardon

If Najib fails in the Federal Court Review, there’s case for Immediate Pardon based on tainted Ruling arising from miscarriage of justice related to unfairness of procedures where there was compliance and non-compliance where procedures were not complied with. The court cannot indulge in cherry picking.

Najib’s SRC conviction on Tues 23 Aug 2022 wasn’t perfected in law. In law, there was no conviction. He remains a political prisoner. He should have been placed under house arrest pending Immediate Pardon. There must be perfection in writing for perfection in law. None of the nine judges in the three courts on the SRC case mastered the English language. Law, ultimately, remains the power of language.

There’s case law from the Supreme Court of India on those in detention, but not convicted, contesting elections.

The Indian case law, being from Commonwealth jurisdiction, provides Advisory Opinion in M’sia since there’s lacuna (gap) in local law.

Law Before Crime

The system and parameters in Malaysia should be tested. Let’s not meekly accept what’s thrown at us.

Often, under the rule of law, there may be no law unless we allow it.

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.

Political donation from the 1MDB Business Model may well free Najib and bury arch political rival Mahathir. Najib in jail 12 years, 8 years or even 4 years does not arise. Najib has been in public service since 23 years old.

Barisan Nasional (BN), according to media reports, may or may not be the best funded party in GE14. However, publicly that’s about as far as it goes. The party leaders worry that the authorities concerned may be monitoring the money trail. They risk political donation being brought to court as corruption cases. The solar power project in Sarawak and the VLN cases refer. – 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.

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