Najib’s case in Federal Court Review must allow Debate to go back and forth, the Last Word prevails on finality of closure!
Former Prime Minister Najib Abdul Razak, the media has reported, Applied for stay of execution on his 12-year jail sentence for the RM42m SRC International case. The Federal Court Review Panel, based on court procedures, must first look at the Stay Application before considering the merits of the Review. The case isn’t about an Appeal for another bite at the cherry.
In fact, Najib merits Immediate Pardon arising from miscarriage of justice based on Tainted Ruling.
The Federal Court Review on Najib’s SRC case, after Stay, can then allow the Debate to go back and forth until finality of closure. The Last Word prevails for finality of closure. It must come from the parties in dispute on issues in conflict. The Review Panel can only be Referee on the case, Ruling on Submission, and not act with impunity like the Federal Court Appeal Panel.
The SRC case isn’t a simple case, open and shut, as held by the nine judges in the three courts. We are not dealing with someone who stole a tin of Milo from a supermarket. The SRC case involves complex Constitutional issues which were never visited.
The SRC case should have been considered by the Constitutional Court from several perspectives viz. the Basic Features Doctrine (BFD) permeating the Constitution, inherent, implied; the Doctrine of Separation of Powers; the two great principles underlying the Cabinet System i.e. consensus — no voice against — and collective responsibility; and the prerogative and discretionary powers of government and management.
Najib remains the only one dragged to court on numerous charges, on abuse of power, spread over several cases. The rest of his government are beneficiaries of the Attorney General’s (AG) inaction in law. The AG can be dragged to court, under Article 145, for being party to illegalities viz. abuse of power involving selective prosecution — read malicious — and selective persecution. It’s tantamount to contempt — read insulting — the court.
In law, a line must be drawn somewhere lest Pandora’s Box opens.
No court will open the floodgates.
The Federal Court Review cannot ignore the reality that Najib in jail creates a dangerous precedent and puts all future Prime Ministers’ at risk based on the Doctrine of Binding Precedents. It can be argued that Najib, under the BFD, stands indemnified, has immunity, implicit Pardon for “acts in office”.
If true, whether Judge Nazlan stands recused or otherwise for “conflict of interest”, the High Court had no jurisdiction on the RM42m SRC International case. Yet, Judge Nazlan “buat tak tahu” (pretended not to know) and held in obiter dictum — opinions of a judge — that Najib “didn’t return the RM42m” (it was about political donation for corporate social responsibility). He ventured, without citing proof, that the former PM set up SRC for his own benefit. The Federal Court rejected the fresh evidence that Najib wanted to adduce. It would have proven that Judge Nazlan, then in MayBank’s employ, was involved in setting up SRC International for 1MDB.
There’s no reason why a case should end by an artificially imposed deadline. Justice must not only be done but be seen to be done. If a case can go on, it should be allowed, until the Debate in court ends. There have been cases which have gone on for as long as 20 years before finding finality of closure. In PKR President Anwar Ibrahim’s case, Sodomy 2 went on for nearly nine years before he was jailed. The cruelty was eased somewhat when he was granted Pardon almost immediately after GE14 on Wed 9 May 2018. The Pardons Board didn’t enter the picture. Agong has discretion on Pardon.
Discretion Beyond Constitution
Agong, as Sultan and hereditary Ruler, has residual and reserve powers. He has discretion beyond the Constitution. The Tues 1 Sept 2020 Federal Court majority Ruling on the Sabah Constitution refers. It was about discretion of sultan beyond the Constitution, as spelled out by the Perak case law 2009, while the Sabah Governor’s discretion was confined by the supreme law of the law i.e. the Territory’s Constitution. The Perak case law 2009 wasn’t Applicable to non-sultanates.
The ongoing case against Anwar on Pardon, for example, being academic, has no live issue. The court has no jurisdiction i.e. it’s not a matter for judicial consideration and resolution. The court of law is only about law. Discretion isn’t law. The matter is nonjusticiable.
The court can only consider what’s before it. It can’t read minds and consider what’s not before it. The court cannot consider what should not be before it.
Prerogative and discretionary powers are not triable issues unless abuse of power can be proven. There are case laws — Raja Azlan Shah and Asian Arbitration — on this. However, these case laws are not Applicable to Agong. There’s no law on prerogative and discretionary powers, no law against it, no law discouraging it.
In the Federal Court Appeal, the 5-Person Panel led by Chief Justice Maimun declared finality of closure on Tues 23 Aug 2022 and jailed Najib although he was unrepresented. Under the criminal justice system, part of the adversarial system of justice, no accused can be convicted if unrepresented on sentencing day. It’s about perfecting conviction in law.
Fatal Flaw in Law
Since Najib’s conviction in the Federal Court was not perfected in law — a fatal flaw in law — and there was no finality of closure, he should be allowed stay of execution on the sentencing while the Debate in Review goes back and forth.
If there’s one takeaway from Najib’s RM42m SRC International case, it’s the reality that emerged in the Federal Court. The 5-Person Panel on the Appeal did not allow the Debate to go back and forth for finality of closure.
Instead, the Panel whose set up has been disputed in a blog post by former Chief Justice Abdul Halim, denied the defence lawyers a hearing.
The Panel, led by Chief Justice Tengku Maimun whose appointment as well has been queried by former CJ Abdul Halim, should have allowed the three to four months extension of time sought by defence lawyer Hisyam Teh. The Federal Court wasn’t interested in the Submission he had in mind. Lawyer Hisyam would have reworked the Submission by defence lawyer Shafee Abdullah in the court of appeal.
Again, the Panel in not allowing the Debate to go on, read Submission by Prosecution, the Defence Submission in the court of appeal and the Rulings by the two previous courts i.e. the High Court and court of appeal. There was no dissenting judgment from the court of appeal. Dissenting judgment facilitates Appeal. It was pointless setting up the 3-Person court of appeal Panel for unanimous Ruling.
The Federal Court Appeal Panel didn’t even pay lip service to the rule of law in jailing Najib. It acted with impunity in falling back on the letter of the law, by itself, to Rule. It isn’t 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 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 the New Malaysia Herald.
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.