NGO Can Fall Back On Magistrate’s Court On Judge Nazlan Case

The Malaysian International Humanitarian Welfare Foundation (MIHWF) can follow up on police report lodged against Nazlan on Tues 1 Nov 2022!

The NGO, Malaysian International Humanitarian Welfare Foundation (MIHWF), can perfect the police report lodged against Judge Mohd Nazlan Mohd Ghazali on Tues 1 Nov 2022. It should file a complaint, within three weeks based on the police report, at the Magistrate’s Court in Kuala Lumpur. The Magistrate’s Court is the Police Court as well, among others.

The Magistrate will call the police for an update on the investigation on allegations against Judge Nazlan. The NGO should also first check with the police on progress made on investigations based on their report. The NGO will be able to report its findings to the Magistrate.

The police have a straight line to the Attorney General’s Chambers (AGC) for prosecutorial powers. Attorney General Idris Harun can delegate prosecutorial powers to the police — read IGP — for framing charges, based on investigation papers, against Judge Nazlan. Likewise, MACC, Bank Negara and the AGC have delegated prosecutorial powers. The AG has sole prosecutorial powers under Article 145.

Leaked Version

We may have some sort of picture on the Judge Nazlan story from a purportedly leaked version of the MACC (Malaysian Anti Corruption Commission) investigations against him. The leaked version first appeared in the media on Wed 17 Aug 2022. In law, it’s not the done thing if AG and the MACC comment on the leaked version. Generally, the authorities concerned cannot release investigation papers. They can only read the charges, if any, in court.

The leaked papers show that the judge did not recuse himself, based on declared interest, and proceeded to hear the RM42m SRC International case against former Prime Minister Najib Abdul Razak on Wed 8 Aug 2018. The Federal Court jailed Najib on Tues 23 Aug 2022, unrepresented, and thereby conviction wasn’t perfected in law. There was no conviction.

It appears from the MACC probe that Judge Nazlan may have committed offences under sec 220 of the Criminal Procedure Code (CPC). It was found that he had a large undeclared sum, in excess of RM1m and approaching RM2m, in his personal account. It’s not clear whether the money trail had been established and income tax, if any, paid. The NGO can raise this issue with the Inland Revenue Board (IRB) by Memorandum. Already, the AG and MACC have received Memorandum from the NGO on Judge Nazlan, as well as Suhakam. The Agong, for the moment, has been left out.

JEC Matter

Patently, a judge can only recuse himself or herself on their own accord, not necessarily based on Application by a party in court. If he doesn’t exercise discretion, there’s a case for taking up the issue in court by judicial review for abuse of power. The matter can be taken up by the Judicial Ethics Committee (JEC) but only for other reasons. The JEC, based on the probe against Judge Hamid Sultan Abu Backer, may not go against those on the bench unless they “pose a threat”. Judge Nazlan, by keeping discreet silence, may not pose any threat. It’s true that those in law protect themselves.

It can’t be said that the true colours of those in law have not revealed themselves. There’s a case in Constitutional Court on Judge Nazlan. It takes its cue from the fact that the JEC did not meet on Judge Nazlan. Declarations are not remedies. If there are rights, there must be remedies, under the rule of law.

Already, the Bar Council may have degenerated into mass hysteria in defence of Judge Nazlan and created an unusual situation.

In a contradiction in terms, the Bar Council has taken pot shots at Shafee Abdullah and Hisyam Teh, Najib’s lawyers on the SRC case. The Bar Council has threatened disciplinary action against the duo. It has also threatened lawyer Zaid Ibrahim, likewise, for speaking up on Najib’s plight. In law, based on conviction not being perfected in law, Najib may be classified as a political prisoner. If true, he should be placed under house arrest, by the Director General of Prison, pending Immediate Pardon for miscarriage of justice arising from Tainted Ruling. The DG has discretion on the matter. If he doesn’t exercise discretion, there’s case for taking up the issue in court by judicial review for abuse of power.

Line in Law

In keeping things in perspective, law remains about a line being drawn somewhere, lest Pandora’s Box opens. No court will allow the floodgates to open.

It’s true that the court brings finality of closure. However, finality of closure cannot be announced prematuredly. If conviction hasn’t been perfected in law, there can be no finality of closure.

Life isn’t black and white but comes in various shades of grey. There may be exceptions, qualifiers, caveats, ifs and buts, and special circumstances. If so, the line in law has been drawn in sand. It can shift further away.

The Federal Court can only blame itself for rushing to judgment on Najib. It could have allowed lawyer Hisyam Teh’s Application for extension of time, three to four months, for fresh Written Submission based on the Written Submission by lawyer Shafee Abdullah in the court of Appeal.

The Federal Court could have adopted a wide latitude in interpretation and allowed Najib to adduce fresh evidence — read Judge Nazlan — which wasn’t placed before the High Court. No one, including Prosecution, can question the Federal Court if it allows fresh evidence. Instead, the Apex Court put on blinkers and Ruled that the fresh evidence wasn’t relevant to Najib’s defence since the thrust of the case was the “simple open and shut” RM42m issue.

It’s true that the fresh evidence wasn’t about the RM42m. However, it was relevant in Defence as it shows the judge should have recused himself based on “conflict of interest” issues. The judge was involved, as MayBank employee, in setting up SRC International for 1MDB which was wholly owned by the Finance Ministry. Then, there’s the matter of a large unexplained sum in his personal account/s.

Easy Way Out

The Federal Court, having decided that recusal and possible criminal offences were messy issues, took the easy way out in looking the other way, and jailed Najib with impunity. It was sheer evil that no thought was given to the stark reality that a man’s life was at stake.

The Federal Court could have just as easily allowed the fresh evidence, without getting into the merits, and freed Najib on Tues 23 Aug 2022. The Ruling by the court of appeal would cease to exist when the conviction by the High Court was set aside.

Again, Tues 23 Aug 2022 comes back to those in law standing up for each other and protecting themselves no matter what the odds. The myopic focus of the 5-Person Panel was on the Ruling by four judges in the earlier two courts. Those Rulings did not have the benefit of the fresh evidence which the Federal Court rejected. – 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.

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