Originating Summons, clearly not remedy in law, may be persuasive authority as Declaration, but not needed on Pardon for former Prime Minister Najib!
Commentary and Analysis . . . Former Prime Minister Datuk Seri Najib Tun Razak’s renewed bid, the 3rd such case, against former Attorney General Tan Sri Tommy Thomas should set alarm bells ringing on the rule of law, the basis of the Constitution.
Earlier, former Chief Justice Richard Malanjum set alarm bells ringing in Farewell Address on the rule of law. Judges, it can be said, don’t go against each other even when there are errors in facts and errors in law at the lower court level. Indeed, judges even protect each other at the superior court level by falling back on the standard fiction that “there’s no reason to go against — read lower court — ruling”.
The court of public opinion in particular may have been persuaded lately that miscarriage of justice exists as public perceptions keep shifting in favour of Najib especially among his 4.6m followers in Facebook alone.
The former Prime Minister, plagued by Tainted Ruling in the RM42m SRC International case, was also victim of Trial by Media. The media, being unthinking animal, was allegedly manipulated by Najib’s political enemies for stagemanaging news. These are people with deep pockets. They have tentacles as well in the judiciary which allegedly may not be free from allowing forum shopping for judges. More on the 3rd bid later.
In fairness, the media may be misled by obiter dictum — opinion of judge — which comes before ruling. It might be useful, within the Malaysian context for media purposes, if the judge leaves out obiter dictum and just focus on ruling. The court may be influenced by public perceptions built up by media reports on court cases.
First Things First On Najib
Patently, the media can’t emulate the hysterical social media and degenerate into rhetoric and polemics on whether Najib was guilty or innocent. That isn’t the issue. Opinion, in any case, isn’t law. Only the court can declare law, the court isn’t about the truth — this isn’t fiction — but only about law. The focus in the court of law remains on closure which, unless there’s out of court settlement, can only come when there’s finality in litigation.
In jurisprudence, it isn’t possible for anyone to know law. Law, ultimately, remains the power of language, showing evidence of wide reading, ability to cite, demonstrating thinking skills on law, and fathoming how the judge would rule. It’s a bit of a mystery, law schools teach, “exactly what skills lawyers bring to bear on cases in court”. Strange but true that law schools aren’t about law practice skills and court room skills. They offer academic programmes which can only be used for teaching law.
The court, contrary to public perceptions, does not decide on issues in conflict between parties in dispute. Again, the judge rules on the decisions taken in Submission — it’s about law — by the parties in court. The Ruling comes with the grounds which facilitates Appeal.
Although Najib’s Application does not mention the RM42m SRC International case, there’s case for Originating Summons (OS) on the jurisdictional and constitutional issues which weren’t raised in the High Court and the superior courts. The SRC case was fatal flaw in law, perhaps brought about by the perception, more imagined than real, that the Basic Features Doctrine (BFD) does not exist in the Federal Constitution i.e. neither written nor implied.
There’s lacuna (gap) in local law on the BFD but there’s case law in Commonwealth jurisdictions which provide Advisory Opinion which, if cited, may be declared as local law. The Supreme Court of India, for example, in recognising that the BFD isn’t written nor implied in the Indian Constitution, has upheld the Doctrine through series of case laws. So, it cannot be argued that BFD does not exist in the Federal Constitution.
Briefly, the BFD provides for indemnification, immunity and implicit Pardon for Parliament and government for “acts in office”. The court has no jurisdiction — that means SRC — i.e. it’s not matter for judicial consideration and resolution as discretion isn’t law. The court of law was only about law.
Discretion, based on case law, of course does not exist if abuse of power can be proven. Here, the men can be separated from the boys. It can be argued that abuse of power cannot be proven where the BFD can be cited. It’s here that Najib’s defence on the SRC case fell apart and haunts his other cases in court, criminal and civil, as well.
BFD About Amendments
The BFD, in digressing a little, isn’t only about indemnification, immunity and implicit Pardon for Parliament and government for acts in office.
The BFD also enshrines the principle in constitutional law and jurisprudence that certain Articles in the Constitution cannot be amended, lest the supreme law of the land be seen as going against itself, and thereby ceases to exist. Let’s not go there for now. It’s another story for another day if questions arise in court, for example, on the anti-hop law and whether Article 10 can be amended in facilitating the said law. The Bar Council, otherwise hysterical every other day on this and that and that and this, keeps discreet silence on Article 10 and thereby exposes itself as public menace in more ways than one.
No SRC Mention In OS
In any case, Najib’s OS if filed should not mention SRC since sentence has been passed and Najib jailed, unrepresented, on 23 August 2022. Being unrepresented, besides BFD, remains another weapon which strengthens Najib’s allegation that he’s under “arbitrary detention” as political prisoner and denied “house arrest”. Najib has filed Petition that he, like Brazilian President Lula when out of power, merits UN Review on his plight in jail.
In the rule of law, the basis of the Constitution, 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 i.e. no gaps in the conviction. There must be compliance with court procedures, the procedures must be fair, there must be due process in line with the principles of natural justice, and there must be compliance with the rule of law.
True that nine judges in three courts had the same story on the SRC case but, it must be pointed out, the rule of law wasn’t mentioned, probably lest the story falls apart. The nine judges were allegedly about the letter of the law, by itself, as law. It isn’t law at all.
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 Federal Court Review wasn’t criminal case. It was judicial review. Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli ruled DNA (discharge and acquittal) for Najib on the grounds that there were many transgressions against the former Prime Minister. Judge Sebli added, for the same reason, that he would not call for retrial.
Declaration No Remedy
Declaration — read OS — although not remedy, may be persuasive authority on Pardon although not needed, being too little, too late. Najib’s fate now rests in the hands of the Agong. Prime Minister Datuk Seri Anwar Ibrahim, based on comments in the media, would not intervene on Pardon for Najib on the grounds that Agong has sole discretion. Agong has the green light from the Prime Minister on Pardon for Najib. The head of state can grant Pardon without being advised by the Prime Minister and without reasons and explanations. No court in the world will go against Agong on Pardon.
Najib’s Bid Against Thomas
More on Najib’s 3rd Bid . . . The former Prime Minister’s 3rd bid, under Article 145 read with case law, was about alleged abuse of power by the AG. Although the AG has discretion on his role and functions, the power isn’t unfeterred as established by case law written by Raja Azlan Shah. Discretion does not exist if abuse of power can be proven. However, the court can declare whether the AG, being part of government, remains covered by the BFD as well.
In the recent Asian Arbitration case, which went against the government, the Federal Court declared — disingenously or otherwise — that Thomas abused his power under Article 145. The rest is history which spells hope for Najib on his 3rd Bid.
Najib, except for circumstantial evidence and conspiracy theories, probably did not have much in his earlier two bids. No court in the world would accept conspiracy theories.
Circumstantial evidence, under the Evidence Act 1950, isn’t admissible in criminal cases. Circumstantial evidence may be admissible in civil cases provided there’s corroborative evidence under the 1950 Act.
Najib’s 3rd bid may be somewhat different, the proverbial light at the end of the tunnel, since he “has” the Memo that leaked out from the Attorney General’s Chambers (AGC). It purportedly advises Thomas that there was no prima facie case against Najib on the 1MDB-IPIC case which also involves former Treasurer-General Treasury secretary general Tan Sri Mohd Irwan Serigar Abdullah.
Najib, according to media reports, has summoned Thomas on the “leaked” AGC Memo. Still, it must be stressed that all government documents are under the Official Secrets Act 1972, unless waived.
There’s also the little matter of the Malaysian government settling the IPIC-1MDB case out of court with the Arab government concerned.
Civil Case Based On Conviction
Sabah lawyer Jack Situn said in a whatsApp message as follows on criminal case being cited in civil case:
“The effect of inadmissibility of criminal judgment, order or decree in civil proceedings would mean that a plaintiff in the civil suit is to prove all over again that the defendant has committed the offence pursuant to the operation of Section 43 of Evidence Act 1950 on grounds of relevancy.”
The approach in Malaysia, he added, follows the English case of Hollington.
It was heavily influenced by the burden of proof principle, whereby in criminal cases, the prosecution bears a heavier burden than the defence in that, it has to prove “beyond reasonable doubt”. In civil cases, said lawyer Situn, it’s only required to prove “on the balance of probabilities” that the accused/defendant committed the offence.
As per the Hollington case, continued lawyer Situn, “it is res inter alios acto – “the issues in the criminal and civil proceedings are not identical” — “Thus, I am inclined to advocate the status quo on the issue.”
“Bear in mind too that should the accused concede in criminal cases, he pleads guilty, as opposed to offering to make amends (in the form of an apology or compensation) in civil cases.”
Generally, the accused in criminal cases don’t plead guilty. They may plea bargain which in fact does not exist under our adversarial system of justice. However, it happens as seen in the solar power case against Datin Seri Rosmah Mansor, Najib’s wife in enforced solitude since August 23 last year. — 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.