Prime Minister Anwar Ibrahim, also Finance Minister, can correct the said anomalies on the Najib tax case with the proverbial stroke of the pen or risk the future of the unity government.
Commentary and Analysis . . . Former Malaysian Prime Minister Datuk Seri Najib Tun Razak and son, Datuk Nazifuddin Najib, can probably make “representation” at the Jabatan Insolvensi Malaysia (JIM or Malaysian Insolvency Department) on tax issues i.e. before they are raised in the bankruptcy court by the Inland Revenue Board (IRB or Lembaga Hasil Dalam Negeri LHDN).
The bankruptcy court may end up as the “forum” which determines that there was abuse of power on the Najib tax matter by the IRB, then Attorney General Tan Sri Tommy Thomas and then dictatorial Prime Minister Tun Mahathir Mohamad.
Already, Thomas and Mahathir has mud on the face after Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli ruled DNA (discharge and acquittal) on 31 March on the RM42m SRC International case.
The desperate duo also has mud on the face since High Court Judge Datuk Mohamed Zaini Mazlan struck out the 1MDB Audit Report “tampering case” against Najib and former 1MDB President Arul Kanda Kandasamy. The Prosecution failed in making out prima facie case as no offence was disclosed and there can be no law on the matter.
The JIM Director-General has prerogative and discretionary powers on Application in bankruptcy court. The IRB would have mud on the face worldwide if it drags Najib and son before the bankruptcy court.
Non-payment Of Najib Taxes
The father and son allegedly didn’t pay RM1.69 billion and RM37.6m respectively in taxes and penalties. It appears the Federal Court put on blinkers and ruled. The Apex Court allegedly disregarded procedural unfairness and non-compliance with the Specific Relief Act 1950, among others. Tax must be based on proof of income and not money transfers not initiated by the purported tax payer.
In Najib’s case, the Federal Court agreed with the IRB that RM2.08b which entered his personal bank account/s was income, despite there being no proof, and the RM2.038b returned from the same money was expenditure.
The IRB and the Ministry of Finance are duty-bound on correcting the anomalies in law which demands payment of taxes before considering complaints. In law, it can be argued that there can be no taxation without representation i.e. having say in government policies on taxation, among others. Prime Minister Datuk Seri Anwar Ibrahim, also Finance Minister, can correct the said anomalies on the Najib tax case with the proverbial stroke of the pen or risk the future of the unity government.
It’s no mystery why the IRB Director-General did not first approach the non-judiciary body Special Commissioners of Income Tax (SCIT) on taxes allegedly payable by Najib, the son, and Datin Seri Rosmah Mansor. It’s open secret that Trial by Media manipulated by Mahathir before GE14 in 2018 demanded that Najib pay up taxes allegedly due on the RM2.08b which reportedly entered his personal bank account/s. The source received RM2.038b from the same money, albeit four months later.
Rosmah has been hit with RM7m tax bill and also faces money laundering charges in criminal court when it should be civil action matter for out of court settlement.
In putting the cart before the horse, the IRB disingenously claims that the parties in dispute on issues in conflict can approach the SCIT after taxes levied and penalties are paid.
All this reminds us of Chief Justice Tun Richard Malanjum’s farewell address where he implied that the court in Malaysia and lawyers, based on their own words, belabour in the delusion that the letter of the law, by itself, can be passed off as law. It facilitates acting with impunity. Malanjum, in implying that there were issues on law in Malaysia, disclosed that the court and lawyers generally could not fathom that the letter of the law, by itself, wasn’t law at all.
Malanjum had the court, and lawyers, arguing with him in an “educated beyond the intelligence” moment, “see here, you can read it yourself. The law is here”.
There’s greater emphasis on the spirit of the law in the rule of law, the basis in the Constitution, albeit read with the letter of the law. Again, the letter of the law by itself isn’t law at all. There’s no democracy, no legitimacy, it’s rule by law as in CCP-ruled China, rule by man, and law of the jungle where anything goes for acting with impunity.
The Federal Court, in the tax cases against Najib and son, should have adopted a wide latitude in interpretation and dismissed the cases, in bending over backwards in being fair and in the interests of justice. Najib reported no RM2.08b income and therefore merits no taxation and penalties. It isn’t clear whether Nazifuddin had any income which merited RM37.6m in taxes and penalities. In any case, he reported no such income and that may have invited penalties included in the RM37.6m tax bill.
In taking the cue from another case, reported by the media, it can be argued that the judge at the High Court stage of the case, “may have misdirected himself on the basic principle of law and applied the wrong legal principles.
“The judge also failed to give proper attention to all the evidence before the court. Also, he did not assess the overall evidence before arriving at the conclusion”.
These are fatal flaws in law which makes the Federal Court ruling, against Najib and son, unsafe in law.
Bank Negara Analyst
There’s also the little matter of the Bank Negara analyst in the related 1MDB case currently in court. The analyst, in his own words, more than implied that he may be no subject matter expert on money transfers.
There can be no law on money entering accounts and no law on money leaving account.
There’s law, no law and where there can be no law.
There must be law before crime. No law no crime.
Nullum crimen sine lege is Latin for “no crime without law”.
Nullum crimen, nulla poena sine lege (there’s no crime when there is no law punishing the same).
IRB Not About Crime
In law, it can be argued that the IRB in fact doesn’t care, or shouldn’t care, about how eligible tax payers make money. There are other enforcement authorities if tax payers engage in alleged wrongdoing or have been party to illegalities like money laundering activities, for example, or retain “secret profits”.
The IRB, if it gets its thumb out of the proverbial “youknowwhat” may just want taxes paid. True, it may not happen all the time.
However, IRB has its own court, as Tribunal. It shouldn’t use the court of law against alleged errant tax payers. That’s waste of the court’s time and public funds and also erodes public confidence in the IRB coming to equity with clean hands for social justice based on good conscience. — 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.