Agong can act on Pardon for former Prime Minister Najib Razak, with or without advice from Prime Minister Anwar Ibrahim, and without giving reasons!
Commentary and Analysis . . . If we pen this commentary and analysis in January next year, when the Johor Sultan replaces the Pahang Sultan as Agong, the headline and subheadline would most probably read as follows: Najib’s Pardon Johor Sultan’s first national duty priority.
Instead, we find that based on the grapevine and media that Prime Minister Datuk Seri Anwar Ibrahim has virtually given the “green light” on Pardon for former Prime Minister Datuk Seri Najib Tun Razak. That means the Agong, presently from Pahang, can Pardon Najib with or without the Prime Minister’s advice and without giving reasons and/or mitigating. The Pahang Sultan would be merely doing what the Johor Sultan, based on his own words, implied that he would do.
If a person is released, it doesn’t mean that he or she is innocent. It’s better to let a thousand guilty men go free, than hang an innocent man.
If a person is locked up, it doesn’t mean that he or she is guilty. Miscarriage of justice exists.
Najib wasn’t given the benefit of the doubt by the High Court although there was strong circumstantial evidence that fugitive fund manager Jho Low, perhaps inadvertently, put him in trouble with the authorities concerned.
The #JusticeForNajib Town Hall meeting on Saturday 30 September 2023 in Kuala Lumpur would be the focus for these and/or related matters of public concern and public interest.
It wasn’t so long ago that the Johor Sultan decreed that either Najib should be released or more people should join him in jail. The Sultan implied that dictatorial former Prime Minister Tun Mahathir Mohamad — “someone who was in power for 24 years” — should be in jail as well. Mahathir, 98, has been questioned by the police several times on alleged sedition and treason. So far, there are no signs that he will be hanged any time soon for alleged treason. Mahathir can be placed under house arrest or bundled into exile.
Convention Decides on Najib
It’s convention, taking its cue from the Constitution, that sees the Agong acting upon the advice of the Prime Minister. In this case, the convention — i.e. the working of the Constitution — and the Constitution are synonymous.
Anwar said that Agong has sole discretion on Pardon. That’s true but only upon the Prime Minister’s advice.
In practice, the PM can impress upon the Agong in various ways, but not in so many words, that Najib should be pardoned. Agong can act on Pardon for Najib with or without advice from the Prime Minister and without giving reasons.
The Prime Minister, based on opposition within the government, can’t be seen as recommending and/or advising Pardon for Najib lest DAP and even his PKR (Parti Keadilan Rakyat) would streak naked in the streets on Pardon for Najib. Umno can go for broke, win or lose, when Najib was freed and/or team up with PAS, Sabah and Sarawak.
There’s risk that Anthony Loke — hypocritically lesser mortal as Encik until he “retires” from politics — would run amok with other Encik in DAP on Pardon for Najib. The party, which literally worships the CCP in Beijing and PAP in Singapore, sees Umno as the 2nd Amanah — sponsored by DAP — in the unity government. The party’s carefully laid plans, since Singapore’s exit in 1965, would fall apart if Najib returns as Umno President.
No Court Against Agong
Patently, nothing can be done against Agong if he acts without the PM’s advice on Pardon. Agong, although advised by backdoor PM Muhyiddin — Mahiaddin in birth cert — Yassin on Emergency, rejected it twice. No court in the world will go against Agong. The court of law was only about law. Pardon isn’t law.
Agong doesn’t explain Pardon.
The Thai King recently reduced former PM Thaksin Shinawatra’s eight year jail sentence by seven years. He explained nothing. Thaksin, according to media reports, will get parole after serving four months.
Guessing Game on Pardon
In any case, the guessing game has begun in earnest in the court of public opinion — it’s about cases in court or those that should be there — and social media on Najib’s Pardon. The media, mainstream and alternative, are in cahoots with the Bar Council and DAP against pardon for Najib after engaging in Trial by Media. They risk having Awards pulled back and being blacklisted by Protocol against entering the Istana. They could even be exiled from Kuala Lumpur and Pahang, and later Johor as well.
Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli ruled DNA (discharge and acquittal) for Najib on 31 March this year on the RM42m SRC International conviction. He ruled out retrial on the grounds that “it was pointless when there were so many transgressions against Najib”.
Najib was jailed, unrepresented, on August 23 last year by the Federal Court Appeal Panel headed by Chief Justice Tun Maimun Tuan Mat. She claimed, like Sultan, discretion beyond discretion. It was blatant violation of court procedures.
Discretion isn’t law. The court has no jurisdiction i.e. it’s not matter for judicial consideration and resolution. The court of law was only about law.
However, 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 also refers.
Najib Jailed By Hook or By Crook
Najib’s conviction, briefly, wasn’t perfected in law for perfection in law i.e. there were holes here and there and there and here. It was about jailing the former Prime Minister by hook or by crook by the court falling back on the letter of the law, by itself, as law and allegedly acting with impunity. Except for Judge Sebli, none of the rulings against Najib in the Sessions Court, High Court, court of appeal, and Federal Court Appeal mentioned the rule of law, the basis of the Constitution.
The rule of law isn’t legal term but political. It isn’t imposed from outside but arises from within based on the ultimate political documents which set forth the governing institutions of state and hence has force of law.
In the rule of law, the manner in which the accused was convicted comes first.
Conviction can only follow if it has been perfected in law for perfection in law. There must be compliance on court procedures, the procedures must be fair, there must be due process, and compliance with common sense, universal values, the principles of natural justice and the rule of law. Often, cases in court are not immediately about guilt or innocence or whether the Claimant may be eligible for compensation or otherwise.
Public perceptions on the law are based on falling back on the letter of the law, by itself, as law and acting with impunity. That’s not law at all.
The judge must never put on blinkers and rule as that would be tantamount to miscarriage of justice.
Spirit of the Law
In jurisprudence, it isn’t possible for anyone to know law. There’s greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albiet read with the letter of the law.
The judge remains bound by what happens in court. The parties in dispute on issues in conflict are bound by pleadings. Opinion isn’t law. Only the court can declare law. If there are novel developments, the court can declare them in landmark ruling. The judge must take wide latitude in interpretation.
The jurisdictional and constitutional issues were never visited during the High Court stage of the RM42m SRC International case.
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. There’s lacuna (gap) in Malaysia on the BFD. Indian case laws can be used as Advisory Opinion for local case law.
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.
Najib has Review pending before the UN on “arbitrary detention” i.e. he was jailed unrepresented.
Human rights and international customary rights form the basis for international law. National law is read as compliant with international law.
International law, contrary to public perceptions, isn’t imposed by a few rich nations on the rest of the world.
International law comes into being based on consensus — i.e. no voice against — and/or overwhelming majority which includes nations with significant numbers.
Evidence Act 1950
It’s very difficult to convict anyone under the Evidence Act 1950.
Attorney General (AG) Tan Sri Tommy Thomas tried to circumvent the Evidence Act 1950 in the Umno court cluster cases. That may be unconstitutional and tantamount to abuse of power by the AG under Article 145. Chief Justice Richard Malanjum’s farewell speech on the court system and the legal fraternity proves that the rule of law may not exist in Malaysia.
If conviction had been perfected in law for perfection in law, 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 through the High Court after four years. The recent Dr Ganja case refers.
The court ordered him released because he had served half the remaining years. — NMH
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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.