Najib ‘Wrongly Charged’, Literally ‘Framed’, On RM42m SRC Case

Federal Court Review can quash the conviction of Najib, RM42m political donation may be about income tax evasion, money laundering, not ‘abuse of power‘!

In hindsight, former Prime Minister Najib Abdul Razak may have been “wrongly charged” — literally “framed” — with abuse of power, conflict of interest and criminal breach of trust arising from allegedly “deriving personal benefits from bribery and corruption” on the RM42m SRC International case.

The 5-Person Federal Court Panel rushed to judgment on Tues 23 Aug 2022 and jailed an unrepresented Najib. It was violation of the rule of law, the basis of the Constitution.

In the rule of law, the manner in which a person was convicted comes first. There must be compliance with procedures, and the principles of natural justice, in line with the rule of law.

Conviction can only come if there has been compliance with all the procedural matters mentioned and law.

The court of law isn’t about the Truth but only about law. The court isn’t about ethics, moral values, theology, sin, God, righteousness, justice or civilisational values preached by Sanatana Dharma — it isn’t Hinduism — Buddhism, Confucianism or Islam.

The Attorney General’s Chambers (AGC) allegedly can “fix” anyone by the manner in which it frames charges. We learn from unscrupulous Ad Hoc Prosecutor Gopal Sri Ram, universally villified as the personification of evil, that the AGC has discretion on winning conviction, reportedly by hook or by crook. He was briefing a hostile media on the solar power project, in Sarawak, which may have existed only on paper. Aide Rizal Mansor, the accused for two years, became state witness against Rosmah, Najib’s wife. She was convicted based on inadmissible hearsay and circumstantial evidence which cannot be accepted by criminal court.

RM140m Maybank loan

Apparently, the RM42m wasn’t from SRC International. It was reportedly from another company which may or may not have been related to SRC International. The company, according to the money trail, obtained a RM140m loan from MayBank. The RM42m came from the RM140m. SRC International was initially a 1MDB subsidiary. It has since come under the Finance Ministry but remains a private company.

If it can be accepted by the Federal Court Review Panel that the RM42m was in fact political donation, known or unknown, despite no tax receipts being produced as proof, the case may involve tax evasion and/or being party to illegalities viz. money laundering activities. It emerged in court that Najib did not know that the RM42m had been deposited into his personal account/s where two people had the PA (Power of Attorney). It’s not the court’s work to collect income tax.

If it was about money laundering activities, then Attorney General Tommy Thomas — no criminal lawyer — should have filed civil action on the matter. The RM42m could have been frozen, seized and forfeited by the state.

If criminal suit was filed, it would only follow the civil action being challenged.

As In DOJ, Najib Could Have Settled Out Of Court

Najib, in facing the civil action, could have offered without prejudice — i.e. with no admission of liability — to settle 40 per cent of the RM42m as out of court settlement, based on the formula used by the AG in previous similar cases and by the Dept of Justice (DoJ) on 1MDB cases where the criminal wrongdoing allegedly violated the US Financial System.

The former PM may still be liable for taxes due on the RM42m and/or be hauled up for tax evasion for allegedly not reporting the amount to the Inland Revenue Dept (IRB). The onus would be on the IRB if any action can be taken on the matter against Najib.

IRB Inconsistent

The IRB may not have a consistent policy on tax evasion on political donation. There’s no law in Malaysia on political donation, no law against it, and nothing discouraging it. All donation above RM5K, based on previously announced policy, must be reported to the IRB and donors named. It used to be RM1K.

Former Sabah Chief Minister Musa Aman, for example, was freed of 46 corruption charges on Mon 8 June 2020 after he uttered political donation, the “magical words”, on the RM380m he collected from timber contracts. The court and AG did not verify Musa’s claim.

The IRB did not go after Musa for taxes due on the RM380m. The MACC (Malaysian Anti Corruption Commission) and Bank Negara did not freeze, seize and forfeit the money by civil action. Therein the matter lies.

MACC and Bank Negara have also not gone after the Taib Mahmud Family in Sarawak. The Family has allegedly been collecting inflated government contracts in “joint venture” with the Sarawak Economic Development Corporation (SEDC). The inaction in law may arise from the fact that Taib Mahmud, previously Chief Minister and now latter day sultan as Governor, controls a sizeable block of 19 parliamentary seats. The Federal government may collapse and implode if it does not have the 19 MP seats on its side.

Jugular Vein

The fact that Najib was convicted on Tues 23 Aug 2022 on the RM42m SRC International case, without the conviction being perfected in law — read unrepresented and other matters — remains the “jugular vein” in court. If slit, the entire case collapses and implodes.

The Federal Court Review Panel can quash the “conviction” and set Najib free immediately.

There are also other supporting facts for the “jugular vein”.

Again, Najib was unrepresented when he was jailed on Tues 23 Aug 2022. Except in the case of those Acting in Person on civil cases, the court will not advise or guide parties in dispute on issues in conflict.

His lawyer, Hisyam Teh, had already discharged himself when the 5-Person Federal Court Panel, led by Chief Justice Maimun who was allegedly not properly appointed, denied him the three to four months extension of time sought for Submission. Former CJ Abdul Halim, who questioned CJ Maimun’s appointment, also alleged in the same blog posting that the 5-Person Panel wasn’t properly set up. He went into the details.

Ex-chief Justice Abdul Hamid Mohamad, in His Take on Pardon, Questions the Eligibility of the 5-person Panel That Presided over the Federal Court Appeal on the Rm42m Src International Case Involving Former Pm Najib Razak. - Nmh Filepic
Ex Chief Justice Abdul Hamid Mohamad in his take on Pardon questions the eligibility of the 5 Person Panel that presided over the Federal Court Appeal on the RM42m SRC International case involving former PM Najib Razak NMH filepic

CJ Maimun, in pontificating sanctimoniously on the Defence, said the Panel did not read Submission from Najib’s lawyer, may not do so, and implied that it saw no reason to read anything other than that from the Prosecution. The Panel read the Prosecution’s Submission in Federal Court Appeal, Defence Submission in the court of appeal and the Rulings in the two previous courts. There was no dissenting judgment from the 3-Person Panel in the court of appeal. Dissenting judgments facilitate Appeal. It’s pointless setting up Panel for unanimous Ruling. It was a fatal flaw in law which needs no further explanation.

The Story Again

At every stage in a case, the story must be told all over again so that the court can pick out contradictions. Najib’s story was not told all over again in the Federal Court Appeal.

The entire RM42m SRC International case, from the High Court to the Federal Court, was a “comedy of errors”.

Even if Judge Nazlan did not stand recused for alleged “conflict of interest” — having worked with MayBank on the SRC set up — the High Court had no jurisdiction on the SRC International case i.e. it was not a matter for judicial consideration and resolution, and for good reasons.

Although there’s case law on abuse of power from Raja Azlan Shah — based on Advisory Opinion from the Supreme Court of India — and Asian Arbitration not so long ago, these cannot be read in isolation when the matter involves “acts in office” of government administration. The case laws state that prerogative and discretionary powers of government and management are not unfettered where there’s abuse of power.

No Favours Done

The Constitutional Court has not Declared on whether government, under the Basic Features Doctrine (BFD) stands indemnified on “acts in office”, has immunity, implicit Pardon. There’s no Constitutional Court in Malaysia. If push comes to shove, the Federal Court as the Apex Court can sit as the Constitutional Court.

The court can only look at what’s before it. It can’t read minds. Those who hold back in court, for no rhyme or reason except perhaps for no rhyme or reason, are not doing themselves any favours.

In law, a line must be drawn somewhere — read indemnification, immunity, implicit Pardon — lest Pandora’s Box opens.

No court will allow the floodgates to open.

If Najib can be dragged to court for “acts in office”, every Prime Minister is at risk. The Federal Court Review cannot be oblivious to creating dangerous precedents which will come back, under the Doctrine of Binding Precedents, to haunt us all. The criminal justice system may collapse and implode through inaction in law on precedents.

Separation of Powers

The Doctrine of Separation of Powers govern the checks and balances played by the three arms of government viz. Executive, Legislative and Judiciary. The media, the 4th estate as a public service organisation, remains about matters of public concern and public interest and unlike in America for example, it can’t get into Trial by Media under the adversarial system of justice in Commonwealth jurisdictions.

The Cabinet System in Malaysia, as in other Commonwealth jurisdictions, remains anchored on two great principles i.e. consensus — no voice against — and collective responsibility. So far, only Najib has been dragged to court for “acts in office”. It was a fatal flaw in law based on the court not even paying lip service to the rule of law, but acting with impunity, and falling back on the letter of the law, by itself, as law. It’s not law at all but dictatorship. There’s no legitimacy. – 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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Joe Fernandez
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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