Suspended and retired Judge Hamid Sultan Abu Backer takes issue on constitutional grounds as well on the plight of former Prime Minister Najib Tun Razak, jailed unrepresented, on Monday 23 August last year!
Commentary and Analysis . . . If lawyers in Malaysia were about the rule of law, they would speak up on the plight of former Prime Minister Datuk Seri Najib Tun Razak, jailed unrepresented, on Monday 23 August last year.
The lawyers would speak up on the plight of Sabah and Sarawak in Malaysia for over 60 years as the Federal government remains non-compliant on the Malaysia Agreement 1963 (MA’63). MA’63 remains the basis for the Equal Partnership of British North Borneo (now greater Sabah), Sarawak and Malaya (Singapore merged) in Malaysia.
The lawyers would speak up on aberrations in law like Article 3 in secular Constitution and the Definition of Malay in Article 160 (2), fraudulent practices like bogus Malay MyKad allegedly held by PTI (pendatang tanpa izin or illegal immigrants) in Sabah and others, and redundant Article like 153 — affirmative action — based on sunset clause and redundant 152 (national language) on Bahasa Malaysia, the “unofficial official language”.
Plight of Najib
Suspended and retired Judge Datuk Hamid Sultan Abu Backer takes issue on constitutional grounds as well on the plight of former Prime Minister Najib Tun Razak, jailed unrepresented, on Monday 23 August last year.
Najib can be free under habeas corpus or by Petition before Malay Rulers under sec. 300 CPC (Criminal Procedure Code), said the Judge. “Article 5(1) of the Constitution, the supreme law of the land, provides that no person shall be deprived of life or personal liberty save in accordance with law.
“In my considered view that powerful constitutional protection accorded to an accused person — read Najib — was breached.”
More on the plight of Najib later.
No Skill Lawyers
Lawyers in Malaysia, having only gone through academic programmes at law school and memory tests like CLP (Certificate in Legal Practice) on any number of case laws, aren’t about court room skills and skills for law practice.
These graduates can only teach law but allegedly experiment on Clients at the court, drag out cases, and allegedly fleece them until bankruptcy beckons. It’s all about legal incompetence which can be proven.
Like the court, as implied in Chief Justice Tun Richard Malanjum’s Farewell Address before Chief Justice Tun Maimun Tuan Mat, lawyers in Malaysia belabour in the delusion that they can act with impunity by falling back on 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.
Quran as Constitution
PAS, in rejecting Prime Minister Datuk Seri Anwar Ibrahim’s unity government as “impure”, wants the Quran as Malaysia’s Constitution and non-Muslim out of government, out of sight, and out of mind.
PAS, based on its positions reported by the media, don’t accept multi-culturalism, pluralism, liberalism, human rights and international law. The ummah worldwide don’t necessarily accept everything preached by PAS.
Still, in Islam, human rights isn’t for the individual but the collective, for better or worse, and common humanity as in the ummah or universal brotherhood bound by common Faith.
Islamic “law” practices aren’t possible in Malaysia as the rule of law is the basis of the Constitution.
Islam isn’t law but based on the concept of sin. That’s the same as Karma, the law of cause and effect, discovered by ancient India and found in the Holy of Bible, the Word of God, on the spiritual nature of truth. The Word of God, i.e. eternal laws based on eternal truth, remains synonymous with God.
There was no God the Creator in ancient India but the universal belief, based on yogic science practices, that great spirit — paramatma — permeates everything.
In Islam, sunnatullah means God’s law on cause and effect i.e. Karma.
If PAS lawmakers can’t accept the rule of law, despite taking the Oath on the Constitution, they should get on the imaginary camel and head for the imaginary desert. The rule of law, not the Quran, is the basis of the Constitution.
The Constitution, being based on the ultimate political documents which set forth the governing institutions of state, has force of law.
The Constitution is based on the Federation of Malaya Agreement 1948, the Federation of Malaya Independence Act 1957 and the Malaysia Agreement 1963 (MA’63).
The governing institutions of state in Malaysia cannot be based only on 1948 and 1957. It must be based on 1963 as well.
There must be compliance on MA’63.
Political Term
The rule of law, not legal term but political, isn’t imposed from outside.
It arises from within, from the Constitution, based on the ultimate political documents which set forth the governing institutions of state.
Law can explained as there’s law, no law, and where there can be no law.
No law, no crime.
There must be law before crime.
Nullum crimen sine lege ( Latin for no crime without law), remains the principle in criminal law, national and international.
The principle is interchangeable with nullum poena sine lege (Latin for no punishment without law).
Knowing Law Impossible
In jurisprudence, it isn’t possible for anyone to know law. Islamic jurisprudence remains the road not taken by Malaysia.
Law, ultimately, remains the power of language, showing proof of wide reading, ability to think on law and like a lawyer, and ability to fathom how the other side and the judge would think and rule.
The judge is bound by what happens in court, the parties are bound by pleadings.
The court was about closure. There can be no closure without out of court settlement or finality in litigation.
Law schools, being based purely on academic programme, often say that “it’s a bit of a mystery where lawyers get skills”.
Law schools don’t impart courtroom skills and skills for law practice. Academic programmes can only be used for teaching law.
Islam remains about the Tafsir (interpretation) concept in the Quran.
Islam needs Tafsir throughout the ages, from time to time, for progressive thought in keeping with the times. Otherwise, Islam degenerates into Political Islam i.e. a form of rotten politics.
Tafsir may bring Islam one day to the rule of law.
Customary Practices
In that case, as in Saudi Arabia, syariah would be considered as based on customary practices and therefore having force of law like Adat.
Adat is the 1st law in international law.
The Supreme Court of India has declared that syariah isn’t law but based on a person’s willingness to accept it. There’s lacuna (gap) in Malaysia on case law on syariah. The declarations in Commonwealth jurisdiction provide Advisory Opinion which can be written as case law.
It would be unconstitutional to impose syariah on anyone.
In jurisprudence, God isn’t source in law.
Law must have source to have jurisdiction, authority and power.
The court of law was only about law.
The court of law isn’t about ethics, moral values, civilisational values including that based on Islam, theology, sin, God, righteousness, justice or truth.
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. It’s dictatorship, rule by law, rule by Man, and the law of the jungle where anything goes for acting with impunity.
There’s no legitimacy in the letter of the law, by itself, no democracy, no consent of the governed, and there has been loss of sovereignty.
Curtains Come Down
We resume on the plight of Najib.
The curtains will come down on the reign of the 16th Agong, Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, on Monday 30 January next year.
Indeed, the guessing game has begun on whether Pardon or UN Review will come first for former Prime Minister Najib. The Return Najib Movement or Pulangkan Najib, making the way around Town Halls in the country, braces for closure as the Agong from Pahang leaves.
The UN Review will come in before Christmas on Sunday 25 December 2023. The festive mood and year end cheer will take over thereafter until the New Year joy on Sunday 1 January 2024 and perhaps for some days thereafter.
If Pardon isn’t granted before the UN Review comes in, then the matter becomes academic. The UN Review, based purely on the rule of law, can only discover that the RM42m SRC International case, which put Najib behind bars on Monday 23 August last year, remains incomplete.
Najib, being jailed unrepresented by the Federal Court Appeal Panel, was a violation of human rights, international law, and not in compliance with the rule of law, the basis of the Constitution. In the rule of law, there can be no discrimination — read Article 8 — no one is above the law, and all are equal before the law.
Najib’s conviction wasn’t perfected in law for perfection in law.
Federal Court Review Judge Datuk Abdul Rahman Sebli, who ruled DNA (discharge and acquittal) on Thursday 31 March this year, discovered that there were too many transgressions against Najib. He felt that it would be pointless, under the circumstances, if there was retrial.
There was non-compliance with procedures, procedural unfairness, allegedly no due process, and non-compliance on the greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, again albeit read with the letter of the law. — 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.
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