Something ‘rotten in the state of Denmark’ – read Judiciary – which stinks to high heaven!
The social media has gone viral on several major issues which have come together at the same time and raised searching questions on whether the corruption phenomenon plagues law as well in Malaysia, in particular the judiciary. Corruption, fully defined, can only be about making bad everything that one touches.
The jury may no longer be out on whether the adversarial system of justice has become “thoroughly” corrupt in more ways than one.
One “starry-eyed” young lawyer, for example, lamented in a whatsApp Group that developers, local authorities, banks, lawyers and the court including clerks appear to be in cahoots to cheat house buyers. Apparently, this virtually rotten state of affairs has been going on for ages, the public being no wiser. The lawyer claims the media, allegedly being on the take too, doesn’t want to touch the potentially political hot potato issue. So, the media exercises self-censorship, imposes censorship and denies the right of reply to even their own content.
This reminds us of Judge Hamid Sultan Abu Backer who alleged that civil servants, companies and the court were in cahoots to defraud the government on bogus contracts.
Judge Hamid also alleged that there has been interference in court rulings. Chief Justice Richard Malanjum was the subject of his wrath in an explosive 65-page Affidavit.
Deja Vu!
Rosmah, the wife of former Prime Minister Najib Abdul Razak, was convicted — based on not even inadmissible circumstantial evidence — on Thurs 1 Sept 2022 for a non-existent solar power project (ostensibly in Sarawak) allegedly masterminded by a former aide and a company.
Ad Hoc Prosecutor Gopal Sri Ram can be seen bragging about the conviction in a briefing, captured on video, before a surprisingly less than impressed media. It wasn’t a convincing performance on “prosecutorial discretion”. It smacks of obstruction of justice, a heinous crime in other jurisdictions. The Ad Hoc Prosecutor may be all about “winning by hook or by crook”. That’s being unscrupulous, if not about the incarnation of evil as well. This remains a case for the Istana on miscarriage of justice arising from Tainted Ruling based on “prosecutorial corruption” conceded before the media.
The “Stink” Continues
MACC’s probe papers on Judge Nazlan are still with Attorney General Idrus Harun. The Judicial Ethics Committee (JEC), even if push comes to shove, may probably not meet on Judge Nazlan, even over anyone’s dead body. That should raise questions in Parliament on why the JEC exists at all besides for “errant” judges like Hamid Sultan who was seen with undisguised venom as “an embarrassment for the judiciary and an inconvenience”.
If no action can be taken against Judge Nazlan, based ostensibly on the Doctrine of Separation of Powers, then questions should be raised in Parliament on why there’s allegedly no greater emphasis in Malaysia on the spirit of the law in the rule of law, the basis of the Constitution. Najib, who was prejudiced by inaction in law against Judge Nazlan, was dragged to court for “acts in office” and jailed without representation — except on paper — on Tues 23 Aug 2022. It has created a dangerous precedent under the Doctrine of Binding Precedent. It will haunt future heads of government, the Agong, Parliament and the people.
We also have English QC Jonathan Laidlaw‘s pending Appeal to be admitted as advocate and solicitor in the High Court of Malaya. He has been engaged, albeit on paper, as counsel for several Najib cases still in court.
The 15-Page badly written Federal Court Ruling on Najib’s RM42m SRC International case remains another case in point.
Ten Pages of Venom
Ten pages in the Ruling are on senior lawyer Hisyam Teh. He was literally prevented by a “hysterical” Federal Court from representing Najib on the final Appeal. A mere two pages are on the case while another three pages were for the signatures of the five-person Panel and related administrative matters.
It’s not the work of the court of law to enforce the lawyers’ Code of Ethics. We should not be preaching to the converted. The Bar Council, based on complaints, can act on the Code of Ethics. Code of Ethics isn’t law but like syariah based merely on mutual acceptance. It would be unconstitutional for a court to impose the Code of Ethics. The court of law is only about law.
Briefly, the court of law is also not about ethics, moral values, theology, sin, God, righteousness, civilisational values — read Sanatana Dharma, Buddhism, Confucianism, Islam — justice or truth.
In jurisprudence, God is also not a source in law. Law must have source to have jurisdiction, authority and power.
The court does not have jurisdiction on prerogative and discretionary powers unless abuse of power can be proven. Still, the Raja Azlan Shah case law on abuse of power, and the recent Asian Arbitration case against Attorney General Tommy Thomas, cannot be read in isolation where “acts of office” are concerned.
The court does not have jurisdiction on conventions, Agong’s discretion and Pardon i.e. these are not matters for judicial consideration and resolution.
Law, like Karma, does not exist unless we create it.
At the same time, if law exists in jurisprudence, it can only exist based on common sense, universal values and the principles of natural justice.
QC Laidlaw
The High Court Ruling against QC Jonathan Laidlaw may be a violation of the rule of law, the basis of the Constitution. The rule of law isn’t a legal term. It’s a political term.
The Constitution, like Adat and MA’63, isn’t law at all but being based on the ultimate political documents — setting forth the governing institutions of state — it has force of law and emerges as the supreme law of the land.
MA’63 is a political document on the Equal Partnership of Sabah, Sarawak and Malaya in Malaysia being observed in the breach by the Federal government since Malaysia Day on 16 Sept 1963 i.e. the day that British troops marched out in Borneo, the Malay Regiment marched in, and the British transfered the Administration of North Borneo and Sarawak to the Malayan central government.
Adat, based on customary practices, has force of law. Adat is the 1st law in international law. International law, based on international customary practices, is all about human rights.
A litigant or accused has the right to choose his or her own lawyer.
There’s no law which states that litigants and those accused in Malaysia must choose local lawyers to represent them in court or even lawyers at all. That should help overcome the objections of the Bar Council and/or force the body to look the other way to save themselves from further embarrassment and national humiliation.
Litigants can in fact Act in Person.
In criminal cases, an accused may be discouraged from Acting in Person. The court will appoint a pro bono (no fee) lawyer if an accused can’t afford the services of a legal representative.
If QC Laidlaw does not have special qualifications and experience not available among local lawyers, it should not be an issue in law. The court isn’t “paying” Laidlaw. So, it can’t imply that Najib must engage local lawyers.
National Language
Bahasa was an issue in the High Court when Laidlaw first applied to represent Najib and furthers the corruption in law. It may still remain THE issue in Appeal.
In fact, the High Court’s implied “delusions” on the matter, for want of a better term, can be challenged. It must be stressed that the High Court did not spell out its delusions on the bahasa issue. The High Court merely observed that the QC cannot speak the national language. If the Legal Profession Act 1976 in Malaya demands speaking skills in the national language, the matter can be challenged in court.
In the Borneo Territories, the Advocates Ordinance (Sabah) (Amendment) Act 2021 and the Sarawak Advocates Ordinance 1953 preside.
English is the language of law in the superior courts in Malaya and the court in Borneo. The Malaysia Agreement 1963 (MA’63) refers in the case of Sabah and Sarawak. It can be argued that Bahasa, whatever the variations, isn’t suitable for law. Law, ultimately, is the power of language. I stand corrected on Bahasa Indonesia.
Also, in law, Order 92 Rule 1 of the Rules of the High Court 2012 on the National Language Act 1963/67 on Article 152 (bahasa kebangsaan) may be redundant. The Constitutional Court can rule on the matter.
The Corruption Story Continues
Under the myopic MACC Act 2009, corruption remains confined as a little phenomenon. It’s only about simple giver and taker situations. Inflated government contracts for example, are not corruption under the MACC Act 2009, since both sides signed contracts. The MACC does not do due diligence on government contracts, probe the money trail, and bring money laundering charges.
Political donation remains a double-edged sword wielded by MACC. It may be considered political donation, even if there’s no proof that income tax was paid, or alternatively recipients may be dragged to court for allegedly “deriving personal benefits” from bribery and corruption arising from alleged abuse of power, conflict of interest and criminal breach of trust.
Former Sabah Chief Minister Musa Aman, for example, may be an interesting case study on bribery and corruption. He was slapped with 46 corruption charges not long after GE14 on Wed 9 May 2018. The charges were reportedly based on complaints that Jeffrey Kitingan, a former Sabah Foundation Director, lodged at the MACC many years ago.
The charges against Musa were dropped on Mon 8 June 202O. He was given DNA (discharged and acquitted) after he uttered “political donation”, the magical words in court. There’s no proof that the court and the Attorney General verified whether income tax was paid on the RM380m that Musa claimed as political donation. Bank Negara did not freeze, seize and forfeit the RM380m as proof of being party to illegalities i.e. money laundering activities. – 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 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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