Former Prime Minister Najib Tun Razak’s family, the three children in Umno in particular, may take the cue from suspended and retired Judge Hamid Sultan Abu Backer on ending his arbitrary detention!
Commentary and Analysis . . . UMNO Langkawi Division Head Datuk Mohd Nazifuddin, former Prime Minister Datuk Seri Najib Tun Razak’s son, raised eyebrows at the DemiNajib gathering in Kuala Lumpur on Saturday 28 October 2023. He implied the clock has started ticking on winning the father’s release sooner rather than later.
The DemiNajib gathering was organised by Madani Wasatiyyah Academy and Team NR under the tagline: “We Stand By You”.
“The efforts (to free Najib) have not reached the right quarters. This struggle will not end. The issue will be discussed in all Umno meetings,” Nazif was quoted as saying at the gathering at the Kelab Sultan Sulaiman in Kampung Bahru.
“Umno has given a lot of help, it would not be right to blame a single person. The president — Datuk Seri Ahmad Zahid Hamidi — has helped. Many others have helped.”
Najib’s family, the three children — Nazif, Nizar and Yana — in Umno in particular, may be taking the cue from suspended and retired Judge Datuk Hamid Sultan Abu Backer on ending the father’s arbitrary detention.
Najib may have options, as suggested by Judge Hamid, for resolving his plight since August 23 last year when he was jailed unrepresented viz. habeas corpus Application or Petition before the Conference of Rulers. More on the grounds for the options later.
Najib Has Friend in Agong
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. The Johor Sultan, the next Agong, has expressed sympathies for Najib.
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.
The Johor Sultan has decreed that Najib should be released if more people don’t join him. He mentioned dictatorial former Prime Minister Tun Mahathir Mohamad.
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.
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. UN will call for 2nd Review.
Weaponising the Inland Revenue Board (IRB) against Najib, a sore point with Nazif and siblings, began with Trial by Media before he was even hauled before the High Court on the RM42m SRC International case and several other cases, criminal and civil.
If insult has been added after injury, it’s the media building up public perceptions against Najib. It’s an open secret that the media, going beyond click bait, routinely distorts court rulings with an eye on generating hits for the bottomline.
In the court of public opinion, a reader stressed that there was no definition of “income tax” or “taxpayer” in the Income Tax Act 1967 or the Interpretations Act. “The only definition of ‘tax’ was in Article 160 of the Federal Constitution,” he added. “The fact that Najib has income tax bill on alleged ill-gotten gains means it was recognised as taxable income after being convicted. There’s something missing here.”
It can be argued that the law on paying taxes first and complaining later isn’t based on the rule of law, the basis of the Constitution. The Finance Ministry must make changes. There must be proof of income before taxes are imposed. Taxes were imposed on Najib although there was no proof of billions in income. Money transfers, with or without knowledge, aren’t proof of income.
Also, under the Specific Relief Act, the Inland Revenue Board (IRB) must first settle the matter out of court before seeking the intervention of the Special Income Tax Court. It’s inconceivable that Najib’s income tax matter ended up in the court of law.
The sister, Nooryana Najwa (Yana), said the father chose politics over career in profession as he could help more people. Yana, a member of Puteri Umno, heads the Lembah Pantai Puteri Umno Division.
Nazif’s brother, Peramu Jaya state assemblyperson Mohamad Nizar, demanded that the unity government revamp the justice system.
This may be the first time that any lawmaker has expressed this opinion. The issue has been in the court of public opinion even before Najib was jailed.
It’s widely known that lawyers in Malaya Google translate English into Google Malay. They submit the translation as original and the original as translation. Google Malay isn’t the Bahasa Kebangsaan in Article 152, nor does it qualify under Order 92, Rule 1, Rules of the High Court (National Language).
The Bar Council and Act 166 Legal Profession Act 1976 as at 01 Aug 2018 have say on these matters.
English was not only the language of the Constitution, it’s also the language in the superior court and the court in Sabah and Sarawak i.e. the former British Borneo.
The role of the English language was something the honourable High Court of Malaya denies when it routinely strikes out Judicial Review because it wasn’t filed in Bahasa Kebangsaan mentioned in Article 152.
It’s deplorable that such coarse behaviour, for want of better terms, prevails in court.
The honourable High Court of Malaya disregards the fact that Order 92, Rule 1, Rules of the High Court (National Language) and Article 152 were both redundant even before 1969. At best, given the presence of vernacular schools in Malaysia, the 20K word Bahasa Melayu wasn’t the Bahasa Kebangsaan under Article 152 but the “unofficial official language”.
The 40K word Bahasa Malaysia, based on Bahasa Melayu and loanwords from the English language and local languages and dialects, came in by 1969 as the “unofficial official language”.
National Language for Parliament
The onus was on Parliament to amend Article 152 and make the 40K word Bahasa Malaysia the Bahasa Kebangsaan (National Language) or Bahasa Rasmi (Official Language).
The 20K word Bahasa Melayu, the 40K word Bahasa Malaysia and the 127K word Bahasa Indonesia are not one and the same. Dutch words make up quarter of Bahasa Indonesia which was based on the 20K word Bahasa Melayu. Bahasa Indonesia has loanwords from the English language and local languages and dialects.
Many judges have probably inadvertent moments of legal incompetence when they cannot fathom what Johor- Rhio-Lingga (the habitually used 20K word Bahasa Melayu version under Article 152) was all about.
Skills for Law
Lawyers in Malaysia, having only gone through academic programmes at law school and memory tests like CLP (certificate in legal practice) on case law, aren’t about court room skills and skills for law practice.
They can only teach law but experiment on Clients at the court, routinely drag out cases, and allegedly fleeces them until bankruptcy beckons.
Like the court, as implied in Chief Justice (CJ) Tun Richard Malanjum’s Farewell Address, 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.
If lawyers in Malaysia were about the rule of law, they would speak up on the plight of Najib.
They would speak up on the plight of Sabah and Sarawak in Malaysia for over 60 years.
They would speak up on aberrations in law like Article 3 and the Definition of Malay in Article 160 (2), fraudulent practices like Malay MyKad held by PTI (pendatang tanpa izin or illegal immigrants) and others, and redundant Articles like 153 and 152.
The Najib Options take the cue from the fact that conviction wasn’t perfected in law for perfection in law before being jailed unrepresented on August 23 last year.
In the rule of law, the basis of the Constitution, the manner in which the accused was convicted comes first.
Conviction can follow if it has been perfected in law for perfection in law. There must be compliance with procedures, procedural fairness, due process and compliance on the 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 about acting with impunity, being party to illegalities, and falling back on the by hook or by crook approach.
There can be no place for emotions in law.
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 was above the law, and all are equal before the law.
The court of law isn’t about the truth. It’s only about law.
Najib’s criminal cases were about allegedly “deriving personal benefits” based on bribery and corruption and arising from abuse of power, conflict of interest and criminal breach of trust.
In criminal law, those who accuse, must prove the case beyond reasonable doubt.
Najib’s RM42m SRC International case, for example, isn’t about nine judges in three courts having the same story.
Judicial Review isn’t criminal case. It’s about procedures. The court can only look at the merits of the case if there has been non-compliance on procedures. Unfortunately, defence lawyer Shafee Abdullah argued on the merits of the case, for three days in oral submission, for a second bite at the cherry. The court found no jurisdiction if Review was argued as Appeal and dismissed the judicial review.
Federal Court Review Panel Judge Datuk Vernon Ong cautioned lawyer Shafee on the second day that the court will not look at the merits of the case unless there has been non-compliance on procedures.
A case, once concluded, will never be reopened. Retrial, if ordered, remains separate matter.
The High Court did not visit the jurisdictional and constitutional issues on the SRC case.
In fairness, the Defence did not bring up the issues, even later in the superior court.
Najib allegedly had legally incompetent representation. The Attorney General (AG) will act if Najib brings up the matter in court. — 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.