Najib ‘Leaves Jail’ As SRC Case Incomplete

UN Review, silent on ‘arbitrary detention’ for diplomatic reasons, finds no closure on Najib’s RM42m SRC International case!

Commentary and Analysis . . . It can be surmised, based purely on precedents in international law and diplomacy, how former Prime Minister Datuk Seri Najib Tun Razak’s UN Review, expected by Christmas, would pan out.

UNWGAD helped Brazilian president Luiz Inacio Lula da Silva, arbitarily detained when he lost power, won freedom for re-election within days. The Supreme Court in Brazil gave Lula 2nd Review, a mere formality, which overturned conviction for alleged bribery and corruption.

It isn’t rocket science that the United Nations Working Group on Arbitrary Detention (UNWGAD) would be silent on “arbitrary detention” for diplomatic reasons. 

It probably won’t say that Najib was under arbitrary detention — it’s implied — although that was it’s Mandate as reflected in the full name behind the acronym.

Again, based on self-evident facts, UNWGAD can evade saying the former Prime Minister wasn’t under arbitrary detention. 

However, the high-powered UN Review Panel would discover — read based on self-evident facts — that there was no closure on Najib’s RM42m SRC International case

TownHall Meet On Najib

The focus during the Saturday 30 September 2023 American-style TownHall Meeting in Kuala Lumpur on the former Prime Minister was on the pending UN Review on arbitrary detention and Pardon.

The “Townhall for Justice – Keadilan Sebenarnya untuk Siapa” was organised by Pertubuhan Rangkaian Kebajikan Erat Nusa Rakyat Malaysia (BeNAR Malaysia), Nusa Sejagat Malaysia, Malaysian Youth Activist and UmnoSiswa.

2nd Review

Najib’s defence lawyer Tan Sri Shafee Abdullah, expressing confidence during the Public Forum, said that the UN Review would facilitate 2nd Review on the RM42m SRC International case which saw the former Prime Minister jailed, unrepresented, on August 23 last year, after the Federal Court Appeal ended abruptly.

If the 2nd Review means reinstatement of the judicial review dismissed by Judge Datuk Vernon Ong and three other Panel members on March 31, it could only end with the majority accepting Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli ruling DNA (discharge and acquittal).

That does away with the need for Pardon and bolsters Najib’s oft-stated position that he wants his case/s settled through the court.

It’s highly unlikely that Attorney General (AG) Ahmad Terrirudin Mohd Salleh would be ready for renewed battle with former Prime Minister Najib Razak especially after Chief Justice Tun Maimun Tuan Mat has been left with mud on the face. Prime Minister Datuk Seri Anwar Ibrahim also faces intense pressure from BN (Barisan Nasional) and Umno on Pardon for Najib and Cabinet reshuffle. That may see the former Prime Minister return with some form of role in government.

Related articles:
Najib Lost Chances To Stay Out Of Jail
PM Anwar Gives Agong Green Light On Pardon For Najib

New Review

Again, if the 2nd Review goes ahead, it may be form of reinstatement of the judicial review on March 31 and/or completely new Review based on the UN Review.

The Judge Sebli ruling detailed that there were many transgressions against Najib. The judge saw retrial as pointless and ruled it out under the circumstances.

In the rule of law, the basis of the Constitution, the manner in which the accused was convicted comes first.

Conviction follows if it can be perfected in law for perfection in law i.e. there must be no gaps here and there and there and here. There must be compliance on court procedures, the procedures must be fair, there must be due process based on the principles of natural justice, common sense and universal values, and the letter of the law not be accepted, by itself, as law for acting with impunity.

Instead, there was rush to judgment on August 23 last year when CJ Maimun claimed discretion beyond discretion, and on March 31 when Judge Vernon Ong and three judges found the court had no jurisdiction. Ong, who read first, said lawyer Shafee mostly argued Review as Appeal for second bite at the cherry.

Judge Sebli disregarded Judge Ong’s punitive take on lawyer Shafee’s three-day long oral submission and looked at the merits of the case. Like CJ Richard Malanjum’s concerns in the Farewell Address, Judge Sebli’s approach was on the greater emphasis on the spirit of the law, in the rule of law, albeit read with the letter of the law.

Najib Didn’t Return Money

Najib was jailed in the RM42m SRC International case based on High Court Judge Datuk Mohd Nazlan Ghazali saying that the former Prime Minister did not return the money.

No one, facing criminal charges, will return any money involved.

Najib could have been asked to deposit the money in court. SRC should then prove the money belongs to them.

Unfortunately, this approach was not taken as the money was no longer with Najib.

Also, SRC may not be able to prove it belongs to them when Najib did not deposit the money in his personal account/s. He just spent the money on corporate social responsibility activities. In law, an account holder can spend money in the account.

Under the international definition of money laundering, read compliant by national law, RM42m may not be that large a sum under the law. Najib’s personal assets, frozen at RM81m by Mareva Injunction, was nearly twice the RM42m.

Also, civil action may not be possible especially since the money was no longer with Najib. According to what was revealed in court, nine people got the RM42m. The money could be seized, as “secret profits”, if it was still with them.

So, the SRC case was allegedly about jailing Najib by hook or by crook. It was politically motivated case, for getting him out of the way, based on selective political prosecution for selective political persecution.

There’s also the little matter of the leaked AGC (Attorney General’s Chambers) Memo that there was no prima facie case against Najib and former Treasury Secretary General Tan Sri Mohd Irwan Serigar Abdullah on the IPIC-1MDB case, now already rendered redundant by Malaysia’s out of court settlement with an Arab nation.

Thomas In Court

If Najib succeeds in the abuse of power case, the 3rd bid against AG Tan Sri Tommy Thomas, the remaining criminal cases can only be dropped. Discretion, under Article 145, does not exist if abuse of power can be proven.

Najib’s case against Thomas, if proven, also provides Advisory Opinion on the SRC case for Agong and the UN Review.

Already, the 1MDB Audit Report case was struck out on prima facie grounds. Prosecution did not disclose the offence on the tampering allegation and did not cite the law. There’s no law on tampering with Audit Reports.

The 1MDB Audit Report case was an example where the media distorted the court reporting. It also illustrates the kind of frivolous, vexatious, abuse of the process and abuse of the court, and waste of court’s time and waste of public funds cases filed by Thomas and dictatorial Prime Minister Tun Mahathir Mohamad.

Likewise, the 1MDC case will probably be dismissed on the grounds that the Prosecution failed in proving that Najib gave blessing for alleged illegalities at 1MDB by fugitive fund manager Jho Low and comrades in crime. Lawyer Jasmine Loo, comrade in crime, returned as prosecution witness. Earlier, another witness returned but suffered sudden death.

Jho Low’s other comrades in crime, like him, are allegedly hiding in Macao.

The media reported that the Prosecution conceded, based on the blessing theory, that Najib wasn’t involved in wrongdoing at 1MDB.

He was charged, based on the blessing theory, with abuse of power. Discretion exists if abuse of power cannot be proven.

Summary Dismissal

Again, CJ Maimun has mud on the face. That merits the Judicial Ethics Committee (JEC), summoned by Agong, throwing the book at her. Agong can summarily dismiss the CJ instead of waiting for JEC recommendations.

If the manner in which defence lawyer Hisyam Teh was handled by CJ Maimun on August 23 last year could bring Pardon for Najib, Agong would have done it immediately. Agong doesn’t need the plight of lawyer Hisyam for Najib’s Pardon. Lawyer Hisyam was also a case of CJ Maimun not recording his discharge. The UN Review will accept his complaints.

UN Review will also accept the Judge Sebli ruling on DNA which was added to the Petition for Pardon.

In fact, Agong needs no reason, no advice from anyone including the Prime Minister and explains nothing. He may consider public perceptions, for and against Najib, but not necessarily. No court in the world can go against Agong on Pardon for Najib.

New Approaches

MACC Chief Azam Baki recently announced new approaches on tackling bribery and corruption, money laundering activities and “secret profits”, presumably without the criminal court entering the picture.

MACC should file civil action for freezing, seizing and forfeiting money laundering assets and “secret profits” as state revenue. The errant parties will be left with a house, car and some money.

The cases can also be settled out of court without prejudice based on recent precedents where the alleged thief keeps 60 per cent and surrenders 40 per cent.

Civil action will help address the Budget deficit and mitigate subsidies and the national debt burden.

The unity government has shown extreme reluctance on filing civil action.

Instead, like predecessor governments since GE14 in 2018, it files politically-motivated criminal suits for selective prosecution based on selective political persecution.

This approach doesn’t help us on getting back the money. The alleged criminals may be jailed but they will come out laughing all the way to the bank. — NMH

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Joe Fernandez
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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