Malay voters’ ‘benefits in Constitution’ isn’t corruption, MACC’s take on former Prime Minister seen as ‘malicious’
If the Malay vote bank still supports former Prime Minister Najib Abdul Razak, it’s probably because they are not speaking the same language as non-Muslim voters in Malaya. Voters in the Borneo Territories — Sabah and Sarawak — are less inclined to malign Najib in the wake of the Tues 23 Aug 2022 conviction on the SRC case, unlike non-Muslim voters in Malaya. It was the day when the former Prime Minister was jailed without conviction being perfected in law.
Malay voters see Najib as eligible for Immediate Pardon based on the Tainted Ruling arising from the miscarriage of justice on the RM42m SRC International case. They want Agong to grant Najib Immediate Pardon before nomination day for GE15 on multiple grounds including on conviction not being perfected in law.
There are also other mitigating factors for Immediate Pardon like the Basic Features Doctrine (BFD) in the Constitution, the Doctrine of Separation of Powers and the prerogative and discretionary powers of government and management, and the two great principles that govern the Cabinet System, viz. consensus — no voice against — and collective responsibility.
Najib, being the only one charged in court on the 1MDB Story, remains a violation of the rule of law.
Under the BFD, the Najib Administration (2009 to 2018) stands indemnified for “acts in office”, and has immunity and implicit Pardon.
In the High Court, even if Judge Nazlan didn’t stand recused for alleged “conflict of interest”, it had no jurisdiction over the SRC case i.e. it was not a matter for judicial consideration and resolution. The mitigating grounds have been mentioned.
Elephant in the Room
Malay voters, in the wake of Najib’s jailing, worry about the elephant in the room which divides as it unites Malaysia, viz. the 4th Prong of Article 153, the New Economic Policy (NEP) and the quota system. The 4th Prong speaks of a “reasonable proportion” of opportunities from the government to do business. The NEP set a target of 30 per cent of Malaysia’s corporate wealth for Orang Asal, Orang Asli and Malay by 1990 or, if necessary, by a later date as it may be work in progress.
Orang Asal, Orang Asli and Malay see corruption holistically, beyond the MACC Act 2009, as the act of making everything one touches to go bad. This is the proverbial brush, in law, which tars everyone. Let him, who is without sin, cast the first stone.
The MACC remains about the simple act of giving and taking. Invariably, takers are brought to justice, while givers have immunity as prosecution witness, after “plea bargaining”. In law, it’s unlawful, “plea bargaining” being entrapment, duress, blackmail, and even coaching witnesses for perjury.
Plea bargaining does not exist in Malaysia under the criminal justice system and adversarial system of justice. The Attorney General (AG) can be dragged to court, under Article 145, for abuse of power.
Non-Muslim voters view political donation in a narrow, restricted sense, as deriving personal benefits from bribery and corruption. If political donation is euphemism for corruption, it’s also an approach favoured by the MACC when it suits its convenience.
The Attorney General’s Chambers (AGC) isn’t far behind the MACC’s approach on political donation.
Political Donation
Political donation would not end up in court, as deriving personal benefit from bribery and corruption, if recipients declared and paid income tax. In Malaysia, there’s no law on political donation, no law against it, and it’s not discouraged.
Malay voters have noted, in mitigating for Najib, that taxes due have strangely not been raised in court, not even when former Sabah Chief Minister Musa Aman claimed that the RM380m attributed to him, as deriving personal benefits from bribery and corruption, was political donation.
The court freed Musa of 46 charges of bribery and corruption, on Mon 8 June 2020, when he uttered the magical words, “political donation”. The AG and the court never asked Musa for proof of political donation by way of receipts from the Inland Revenue Board (IRB).
If Musa can be given the benefit of the doubt on political donation, it was violation of the rule of law when Najib was denied the same right. In law, Article 8, there can be no discrimination, no one is above the law, everyone is equal under the law, and where there are rights, there are remedies.
Based on Musa’s admission in court, MACC and Bank Negara should have frozen, seized and forfeited the RM380m by civil action. Musa could have offered to settle the matter out of court, without prejudice i.e. no admission of liability, and thereby saved 60 per cent of the money, based on previous cases. Still, he must settle with IRB for the RM380m. If the civil action was challenged, a criminal suit would be instituted.
Voters Not Blind
Malay voters are not blind that the RM42m in Najib’s SRC International case was a pittance compared with the RM380m political donation. In law, the public test would be what two passengers on a bus from Petaling Jaya to Kuala Lumpur believe. They would not accept that RM380m was political donation since there was no proof produced in court that income tax was paid.
So, while Najib literally rots in jail for 12 years over RM42m, Musa is laughing all the way to the bank with RM380m tax-free. He’s also secure in the knowledge that MACC and Bank Negara were probably in cahoots with him, given the inaction in law, on the aborted money laundering charges.
Malay voters can see that the criminal justice system spared Musa while, in a contradiction in terms, vilifying Najib.
Inflated government contracts, another issue of significance, maybe a matter for MACC and Bank Negara under money laundering laws.
Indeed, to cite a related example on selective prosecution and selective persecution, the MACC and its predecessor ACA (Anti Corruption Agency) declared after investigating Taib Mahmud that government contracts — generally inflated — wasn’t corruption on the grounds that “contracts were signed”.
MACC does not do due diligence on government contracts for fraud, cheating, disproportionate profits and secret profits. In law, secret profits belong to the principal i.e. the government in this case. Inflated government contracts go for double, triple and even up to ten times what it should cost the taxpayer. Three examples were raised in Parliament, not so long ago, and can be found in the Hansard. The one km rail link between KLIA2 and KLIA cost RM100m; the Army bought a 0.45 sen Maggi mee packet at RM4.50 per packet; and Malaysian Airlines (now defunct) served nasi lemak at RM150 per plate on board flights.
SEDC Joint-Ventures
It was an open secret that the Taib Family entered into “joint-ventures” with SEDC (Sarawak Economic Development Corporation) for government contracts. Invariably the “joint-ventures” were favoured at the expense of genuine bidders. The pro-government media used to report that Taib left Cabinet meetings considering bids by the “joint-ventures” for government contracts. The Cabinet meetings, dutifully chaired by Deputy Chief Minister Alfred Jabu Anak Numpang, would approve the bids by the “joint-ventures”. If the “joint-ventures” were denied, Jabu risked being removed from the government. In law, it was acting under duress.
The Taib Family became fabulously wealthy as documented extensively by The Sarawak Report, the London-based whistleblower website purportedly funded by a European Foundation, but to no avail. Editor Clare Rewcastle Brown had some success with the 1MDB Story in cahoots with Mahathir Mohamad and the Opposition.
Money laundering cases were never filed in Sarawak as Putrajaya needs the support of the Taib-controlled block of parliamentary seats. In fact, the arrangement arises from 1966 when Chief Minister Stephen Kalong Ningkan was ousted in an emergency masterminded by the Federal government. After a brief tenure in office by Penghulu Tawi Sli, no Orang Asal (Original People) has been Chief Minister of the Territory, despite forming the single largest majority. The territorial government, under the unchanged control of the proxies of the Federal government, appears to have a licence to be serial money launderers.
The Orang Asal have also lost hundreds of thousands of NCR (native customary rights) land, i.e. ancestral and historical property, to crony companies including from Malaya. The court has generally ruled, in violation of the rule of law, against Orang Asal defending NCR land.
Finally, when push came to shove after Najib became Prime Minister, Taib was forced to make way in Mar 2014 for Adenan Satem. Taib became Governor and remains there like a latter-day Sultan.
Phenomenon
The MACC and AGC should explain this Sarawak phenomenon in the wake of politically-motivated cases brought by the MACC and AGC against Najib, his wife Rosmah, Umno President Ahmad Zahid Hamidi and others. Therein, the matter lies partly on the “holier than thou” story of corruption in Malaysia.
The Opposition wants to make kleptocracy and corruption — read Najib in jail — the issues in GE15.
In retrospect, the Barisan Nasional (BN) Supreme Council should have met on Thurs 10 May 2018 and thrown its support behind incumbent Najib Abdul Razak as PM-designate and conveyed the decision to the Agong.
Agong would have to consider since Najib was the incumbent and the Opposition and Agong were divided on the PM-designate.
Generally, by convention, the incumbent PM can be invited first to try and form the gov’t.
Parliament can test confidence in the PM.
On Thurs 10 May 2018, I thought of Greece.
It has been noted that the changing of the guards was normally followed by a period of uncertainty.
My thoughts were on the confidence factor. In Greece, the Opposition won the election. They immediately informed the people that the government could not afford to repay the national debt. This statement should not have been made. There was a run on the Greek economy. The rest is history. Greece is suffering to this day.
LGE Statements
Lim Guan Eng (LGE), after he became Finance Minister, compromised confidence in the economy with his statements. The country is suffering from this to this day.
LGE should have been magnanimous. He should not have mentioned 1MDB, off-balance sheet commitments and gov’t guarantees.
If the press hounds him, he could have said that the government was doing due diligence on the Najib Administration and forensic accounting. After that, the matter should be placed under the Official Secrets Act 1972 (OSA’72), lest confidence is compromised. If this had happened, Najib would not be in jail.
Pakatan Harapan (PH) was carried away by its BS (bullsxit) on Thurs 10 May 2018. We must know where politics ends and good gov’t begins.
LGE became so excited and emotional when he was appointed by the Agong as Finance Minister, despite having roots in China, that he allegedly lost all sense of proportion and fair play towards the Orang Asal and Malay. Apparently, he belaboured in the delusion that he was the sole fountain of wisdom and had a Divine Mandate to act with impunity.
These are issues for GE15.
Before Mahathir resigned on Mon 24 Feb 2020, I said that he would be looking for a way to get rid of DAP from the Federal Cabinet.
I didn’t expect him to resign! – 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 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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