If media degenerates into sensationalism based on click baits on court cases, the public perceptions built up by the ‘false’ narrative may mislead the people!
Commentary and Analysis . . . Issues have arisen for Prime Minister Datuk Seri Anwar Ibrahim, the unity government, the Attorney General, Attorney General’s Chambers (AGC) and the court in the wake of media reports and comments in the social media on several recent cases in criminal court.
DNAA (discharge not amounting to acquittal) can only be safer than DNA (discharge and acquittal) for Umno President Datuk Seri Ahmad Zahid Hamidi and the unity government in the wake of the 200-page letter of representation. If High Court Judge Datuk Collin Lawrence Sequerah had substituted DNAA with DNA for the 47 corruption charges on the Yayasan Akalbudi case, Umno would probably throw out Zahid and quit the unity government. We stand corrected.
The clock has begun ticking with the DNAA for Zahid. He can apply to the High Court for DNA (discharge and acquittal) on the Yayasan Akalbudi case but not immediately.
In Sabah strongman Datuk Seri Jeffrey Kitingan’s case, for example, he was only granted DNA (discharge and acquittal) in the late 90s after four years, based on the disingenous grounds that “it would be unfair to have the charges hanging over the head of the accused”. If so, why take four years?
Mahathir claimed that Jeffrey, as Director of Sabah Foundation, stole RM4b.
The external audit of Sabah Foundation, commissioned by Mahathir, revealed that the RM4b was the discounted difference between spot market prices for timber and longterm contract prices.
PWH carried out the external audit of Sabah Foundation on the RM4b which Mahathir alleged had gone missing under Jeffrey Kitingan’s watch as Director before 1990.
Jeffrey, for those unfamiliar, was detained in 1990 under the draconian Internal Security Act (ISA) It provides for detention without trial. Jeffrey was detained for nearly four years, i.e. two two year terms, for speaking up and speaking out on the Federal government’s non-compliance on the Malaysia Agreement 1963 (MA’63).
Mahathir, it has been alleged, stripped Jeffrey of all his money in foreign accounts before releasing him from ISA detention in early 1994. US$500m has been mentioned.
Thomas Failed As AG
Also, the media glosses over the fact that the 1MDB Audit Report case should have never been brought to court by Attorney General (AG) Tan Sri Tommy Thomas. He isn’t criminal lawyer.
The social media, the alternative media, and the mainstream media may all have been misleadingly reporting that former Prime Minister Datuk Sri Najib Tun Razak and former 1MDB CEO Arul Kanda’s “acquittal in the High Court on the 1MDB Audit Report case was upheld by the court of appeal”.
Acquittal Not Issue
In fact, acquittal only arises if the merits of the case was heard. The High Court dismissed the case on the grounds that Prosecution did not point out any offence as there was no law on “tampering with the 1MDB Audit Report”.
Again, the issue in the 1MDB Audit Report case was alleged tampering and not how the sovereign wealth fund was run.
Even if there was no delay at the CoA as alleged, the Prosecutor would still not be able to point out the errors in facts and errors in law in the High Court ruling.
Attorney General (AG) Tan Sri Idrus Harun’s Appeal on the 1MDB Audit case, in retrospect, was dismissed by the Court of Appeal (CoA). It couldn’t be perfected in law for perfection in law. Legal competency wasn’t possible when no offence was committed. In short, the Appeal in the CoA, SOP (standard operating procedure) at the AGC (Attorney General’s Chambers) when cases in the inferior court go against the Prosecution, fell apart in the superior court.
The media must get the 1MDB Audit case and other cases right. Otherwise, the Prime Minister, the government, the AG, AGC and court will all look bad. The Yes Minister and Yes Mr Prime Minister sitcoms on British TV, for those unfamiliar, were not about corruption in government as implied by comments in the media. The sitcoms were about the bureaucracy, babudom in Hinglish, at work, and have nothing in common with cases in criminal court in Malaysia.
The 1MDB Audit Report case was also not about the AG allegedly goofing on the Appeal at the CoA. The AG did mention that Appeal was SOP (standard operating procedure), at the AGC, whether there was case or otherwise.
The media, it must be stressed, also edits content before uploading or publishing. It’s about the Editor’s prerogative and discretionary powers. AI (artificial intelligence) driven chatbots also helps the media stagemanage news allegedly under self-serving Hidden Agenda.
Discretion isn’t law. The court has no jurisdiction on discretion i.e. it’s not matter for judicial consideration and resolution. The court of law was only about law.
True, discretion does not exist if abuse of power can be proven. There’s case law on abuse of power by Raja Azlan Shah. The recent Asian Arbitration case, where the Federal Court found that Thomas abused power under Article 145, also refers.
IPIC — 1MDB case
Prosecution did not ask for postponement on the IPIC-1MDB case. There’s no basis for the June 2024 date.
Letter of representation, or no letter of representation, the court should have struck out the case when the 4th postponement was requested.
Has Malaysia settled the IPIC case with the Arab nation?
If so, Najib can apply direct to the court for vacating the June 2024 date.
The case is redundant. It no longer exists, having been rendered academic, i.e. no live issue.
The letter of representation no longer matters if Malaysia has settled the case with the Arab nation.
Guilt or Innocence
Often, cases in court are not immediately about guilt or innocence or whether the Claimant may be eligible for compensation or otherwise.
Strange but true that the case will be about whether the commas and full stops were inserted, whether the i was dotted and whether the t was crossed i.e. whether procedures were followed, there was due process and whether there was compliance with the rule of law, the basis of the Constitution.
Even so, the jurisdictional and constitutional issues were never visited in the RM42m SRC International case, for example.
It can’t be said that the Basic Features Doctrine (BFD), based on a series of case laws by the Supreme Court of India, does not exist in the Federal Constitution. The BFD isn’t written but implied in the Indian Constitution.
Under the BFD, the Prime Minister and Parliament stand indemnified, has immunity, implicit Pardon for “acts in office”.
It can also be seen in the US where the outgoing President grants Pardons no matter whether an offence was committed or otherwise.
If conviction has been perfected in law for perfection in law on the RM42m SRC International case, Najib gets four years off from the 12 years for weekends, public holidays and good behaviour.
He must serve at least half the remaining eight years before seeking Pardon.
In any case, whether pardoned or otherwise, Najib can seek release after four years through the High Court. The recent Raja Ganja case refers. The court ordered him released because he had served half the remaining years.
It isn’t possible for anyone to know law. The court of law isn’t about truth but only about law.
Conviction must be perfected in law for perfection in law i.e. no holes here and there and there and here.
Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli ruled DNA for Najib on the grounds that there were too many transgressions against him.
He saw retrial as an exercise in futility.
Under the Evidence Act 1950, it isn’t easy seeking conviction. Generally, the AG may fall back on circumventing the Evidence Act 1950 in seeking conviction. If shove comes after push, the AG’s alleged approach may be unconstitutional and tantamount to abuse of power by the AG under Article 145.
There’s greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law. The letter of the law, by itself, isn’t law at all.
In Malaysia, unlike in England and India for example, the court tends to fall back on the letter of the law by itself, as law, and acts with impunity.
Rule Of Law
Chief Justice Richard Malanjun’s farewell speech on the court system and the legal fraternity could only have been about the rule of law missing in action in Malaysia. The court, it has been said, does not even mention the rule of law. Human rights advocates accuse the government of paying lip service on the rule of law but acting with impunity.
Lawyers in private practice, being mercenaries, were also engaged by Thomas probably in the belief that they could secure conviction allegedly by hook or by crook.
Ad Hoc Prosecutor Gopal Sri Ram appears case in point on the non-existent solar power project in Sarawak. There’s video in Youtube on press briefing. He speaks with straight face on “prosecutorial discretion” involving plea bargaining which, in fact, doesn’t exist in Malaysia under the adversarial system of justice. The inquisitorial system, the other approach on justice, exists in Malaysia but only at the Coroner’s Court.
Under our adversarial system of justice, cases can be settled out of court at the AGC. AG begins cases under Article 145, he can end it. Court has no say.
If representation fails on December 13, the next date in court, Rosmah Mansor has locus standi on proving abuse of power by the AG.
It’s mystery why the IRB Director-General did not approach the non-judiciary body Special Commissioners of Income Tax (SCIT) on taxes allegedly payable by Rosmah.
Najib’s and son’s income tax cases in the court of law also refer.
Umno must eat humble pie for now and live to fight another day. Malay votes have splintered and may even be shifting until they settle down. DAP may want Umno as another Amanah. Umno can go for broke, win or lose, when Najib was freed.
Having said that, Malay votes will probably never again come under one platform as before GE14. Being under one platform only benefitted a small group. That’s how former dictatorial Prime Minister Tun Mahathir Mohamad and family as well became multibillionaires. This is the first in world history. — NMH
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.