Conviction wasn’t ‘perfected in law’ before former PM Najib Abdul Razak was jailed for 12 years . . . there was NO conviction!
The Prosecution argues that former Prime Minister Najib Abdul Razak’s Federal Court Review of his conviction on the RM42m SRC International case must be dismissed on the grounds that there was finality of closure on Tues 23 Aug 2022 — i.e. the day Najib was jailed — and that there must be finality of closure on criminal cases. Otherwise, it’s further argued, there would be no convictions.
The Federal Review case would begin on Thurs 19 Jan 2023. Case mention — it was about case directions (setting dates for cause papers) for case management — was done online on Fri 21 Oct 2022. It was not necessary for Najib to be online. In any case, unlike Anwar Ibrahim in jail, he does not have access to mobile phone and computer at the Kajang Prison. It’s abuse of power, based on alleged discrimination, by the Director-General of Prison. Anyway, let’s not go there unless Najib pursues the matter. The DG should be having sleepless nights.
The constitutionality issues on Judge Nazlan would be heard on Thurs 10 Nov 2022. The MACC (Malaysian Anti Corruption Commission) probed the Judge, for alleged wrongdoing related to the SRC case, and passed the investigation papers to Attorney General Idrus Harun.
By Hook or By Crook, Jail Najib!
Questions arise on whether conviction, by hook or by crook as implied by the Prosecution and Ad Hoc Prosecutor Gopal Sri Ram in the solar power case, complies with the rule of law, the basis of the Constitution. In the rule of law, all are equal before the law, there must be no discrimination, and where there are rights, there must be remedies.
Again, in the rule of law, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law. The letter of the law, by itself — as on Tues 23 Aug 2022 in the Federal Court — isn’t law at all. There’s no democracy and no legitimacy. It’s dictatorship based on acting with impunity, and not falling back on benevolence where the rule of law failed in court because both sides pitched for the letter of the law in Submission before the judge/s.
It’s true that there must be finality of closure in court. Otherwise, cases would never end and/or they would drag on for years — perhaps even as long as 20 years based on history — as the Debate goes on back and forth and disorients the court, confuses it and creates chaos in law. However, having said that, we cannot have finality of closure when there has in fact been no such closure. There should be no rush to judgment. The fact that Najib was jailed on Tues 23 Aug 2022 without conviction being perfected in law — read unrepresented, among others — proves that there was no finality of closure. Again, the former Prime Minister was unrepresented on D-day.
Criminal Justice System
The criminal justice system, under the adversarial system of justice, calls for representation in court before conviction.
In the rule of law, the manner in which an accused is convicted comes first. There must be compliance with procedures, justice must not only be seen to be done but be done, in line with the rule of law. Conviction can only come when nothing hinders it.
In law, the fact that nine judges in three courts Ruled against Najib does not mean that conviction was “perfected in law”.
We can go on and on . . . on non-compliance on procedures in court and unfairness on procedures.
For starters, it can be recalled in hindsight that although the argument was not made in the High Court, it had no jurisdiction and Judge Nazlan should have recused himself based on “conflict of interest” created by involvement, as MayBank staff, in setting up SRC International for 1MDB, and RM140m loan for another company which may or may not be related to SRC International. The RM42m deposited in Najib’s personal account/s reportedly came from the said company and not SRC International as reported by the media.
The Federal Court thwarted Najib when he tried to adduce fresh evidence on Judge Nazlan. The 5-Person Panel, led by Chief Justice Maimun who wasn’t also properly appointed according to former CJ Abdul Halim in a Blog piece, Ruled the fresh evidence wasn’t relevant since the issue was the RM42m. Defence lawyers were not allowed to argue that the fresh evidence, although not about the RM42m, was relevant since Judge Nazlan should have recused himself.
The next Article will cover the declassified Special Task Force Report (STFR) on nine areas of concern on former Attorney General Tommy Thomas’ memoirs, “My Story: Justice in the Wilderness”.
Extension of Time
The Federal Court also did not allow the three months to four months extension of time sought by new defence lawyer, Hisyam Teh. He discharged himself. The court kept his name in the records as Najib’s lawyer. It was virtually a scam to promote the fiction that Najib’s conviction on Tues 23 Aug 2022 was “perfected in law” as he was, albeit on paper, represented.
In adding insult to injury, CJ Maimun said the 5-Person Panel did not read Submission by the Defence, may not read it, and saw no reason to read. The Federal Court read Prosecution’s Submission, read Defence Submission in the court of appeal, fell back on the Rulings in the two earlier courts and sent Najib to jail as soon as the leaked Apex Court Ruling was read.
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. Instead, the Prosecution claims that Najib’s application to review the Federal Court Ruling on the SRC case has no merit.
In Malaysia, unlike in England for example, the court in judicial review does not go into whether procedures were unfair. If the three courts have complied with its own procedures, whether fair or unfair, the Review Application will be dismissed if the Defence fails in Oral Submission, if any.
The Defence should focus on non-compliance on procedures, and where there has been compliance, on the unfairness of procedures if arguments are allowed on this aspect.
Merits of the Application
Finally, if allowed, the Defence can focus on the merits of the Application.
Merits may be a double-edged sword since it also involves procedures.
The constitutional issues, raised by the SRC case, were never visited by the parties in dispute on issues in conflict. The court can only be about what’s placed before it. It can’t read minds, it will not consider what’s not placed before it, and will disregard what should not be before it. Except in civil cases where a party Acts in Person, the court will not advise or guide on cases. In criminal cases, the court will discourage Acting in Person. If the accused can’t afford a lawyer, the court will arrange for legal help pro bono (no fees levied).
Briefly, the constitutional issues raised by the SRC case covers a wide range of issues . . . the Basic Features Doctrine (BFD) under which the government and Parliament stands indemnified, has immunity, implicit Pardon for “acts in office”; 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 court not having jurisdiction on prerogative and discretionary powers of government and management unless abuse of power can be proven.
Abuse of Power
There are two case laws on abuse of power — Raja Azlan Shah, and Asian Arbitration — but these are not applicable since they can’t be read in isolation. They fall apart when read together with the BFD, among others.
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.
It can be argued, based on what transpired in the three courts — High Court, court of appeal, and Federal Court on Tues 23 Aug 2022 — that there has been non-compliance on procedures. The question of unfairness of procedures does not arise when there has been non-compliance. – 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 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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