Agong may free former Prime Minister Najib Tun Razak from ‘arbitrary detention’ in the last week of January 2024!
Commentary And Analysis . . . Former Prime Minister Datuk Seri Najib Tun Razak may be freed sooner, rather than later, if based on the Discovery by various authorities that he has been under “arbitrary detention” since 23 August 2022. His release may be followed by political fall-out. Heads will probably roll in the judiciary.
Najib was jailed, allegedly unrepresented, by the Federal Court Appeal Panel headed by Chief Justice (CJ) Tun Maimun Tuan Mat. It’s inconceivable that the five person Panel was unanimous in jailing Najib. Indeed, the Panel was anti-climax since there wasn’t even one dissenting Ruling. The CJ, like latter day Sultan, claimed discretion beyond discretion. Judges, in fact, have code of ethics.
It’s not known whether the UN Review on Najib’s alleged arbitrary detention has come in. If so, it could only have advised Malaysia that the RM42m SRC International case was incomplete and merits 2nd Review. It’s a matter of public concern and public interest. It’s unlikely, when shove comes after push, that there will be 2nd Review. The politics would be against it.
The Appeal in the superior court isn’t about the merits of any case but compliance with procedures, due process, errors in facts, errors in law, the benefit of the doubt and the rule of law.
Four judges, in handing down no ruling, struck out the judicial review on 31 March last year. The court has no jurisdiction if Review was argued as Appeal for another bite at the cherry. A case, once over, will never be re-opened unless there’s re-trial.
Federal Court Review Panel Head Datuk Abdul Rahman Sebli, in the sole ruling, declared DNA (discharge and acquittal) for Najib on 31 March last year, on the grounds that there were “so many transgressions”. He added that it would be pointless if there was retrial.
Former Court of Appeal Judge, Datuk Hamid Sultan Abu Backer, urged in op-ed piece in the media that Najib’s family file habeas corpus application for release from arbitrary detention. Najib, urged the judge, can also file Petition with the Conference of Rulers and not just the Agong.
Johor Sultan on Najib
The Johor Sultan, the next Agong come January 31, decreed not so long ago that either more people — read Mahathir — should join Najib or he should be released.
There’s emerging consensus among the authorities concerned that Najib’s conviction on the RM42m SRC International case wasn’t perfected in law for perfection in law.
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 was perfected in law for perfection in law viz. recusal, compliance with court procedures, due process and the greater emphasis on the spirit of the law in the rule of law, albeit read with the letter of the law. The letter of the law, by itself, isn’t law at all.
Najib had no Submission in the Federal Court. In law, Article 8 in Malaysia, there can be no discriminaton, Lead Prosecutor Datuk V. Sithambaran, making oral submission, argued various conspiracy theories involving Najib and the defence team which had been discharged. No court in the world gets into conspiracy theories, circumstantial evidence in criminal cases, or inadmissible hearsay.
The Pardons Board, it appears, may have discovered albeit belatedly that it has no jurisdiction on Najib’s Petition for Pardon since he wasn’t convicted. The Petition for the attention of the Agong, a media statement reads, was lodged on 1 September 2022 with the right and proper forum in Putrajaya viz. the Ketua Pengarah or Director General of BHEUU (Bahagian Hal Ehwal Undang Undang or Legal Affairs Division) for serving on the Pardons Board. The Petition, in several follow-ups, was supplemented and perfected.
Media reports on the Pardons Board meeting on Najib’s Petition for Pardon may be misreading of the process. The Board can only meet on convicted person if he or she had served at least half the remaining sentence after a third of the jailing had been discounted for good behaviour. Najib has only served 17 months. If the Pardons Board met on the former Prime Minister in December, as media reports suggest, it could not be on Pardon. The Board may have merely confirmed that Najib, not having been convicted, wasn’t Pardons’ case. If true, he should be released from arbitrary detention.
Agong not only has discretion but discretion beyond discretion based, as hereditary ruler, on reserve and residual powers. The Perak case law 2009 declared these powers for Sultan.
Discretion isn’t law. Agong can step in where there has been miscarriage of justice based on tainted ruling. It isn’t interference in the judiciary and court system. Tainted ruling, if it exists, can no longer exist. Miscarriage of justice exists if Agong makes the declaration.
The Istana may have realised better late than never, given the Decree in late November 2022 on SD (statutory declaration), that it was grave strategic error, indeed fatal flaw in law and certainly unsafe, when it did not remain above the fray after GE14 on Wednesday 9 May 2018 produced hung Parliament.
The Istana, perhaps caught in moment of great confusion if not weakness, caved in and various parties prevailed on the Agong. He played referee and didn’t win any credits with the people. Some netizens were nabbed for hurling insults at the Istana.
Briefly, after Najib, GE14 was even more history, as three Prime Ministers followed in quick succession viz. Tun Mahathir Mohamad (2018 to 2020), Tan Sri Muhyiddin — Mahiaddin in birth cert — Yassin (2020 to 2021) and Datuk Seri Ismail Sabri (2021 to 2022). All three candidates did not have consent of the governed for legitimacy. There was loss of sovereignty. Small groups exercised absolute power between GE14 and GE15.
The Protocol was forgotten after GE14 when Caretaker Prime Minister Najib wasn’t invited, as incumbent, for forming the Federal government. Although he had only 79 parliamentary seats, but based on the Mantra chanted on the other side of the Southeast Asia Sea, Sabah and Sarawak would have thrown their support behind him.
The political history of Malaysia would have been different if Najib had returned as Prime Minister after GE14.
There was further breach of Protocol when Najib did not call on the Agong before Mahathir was appointed Prime Minister. Mahathir, ironically, had only 12 parliamentary seats and an Independent with him. The Agong felt that Datin Seri Wan Azizah, who had 50 parliamentary seats under the PKR (Parti Keadilan Rakyat) symbol, should be Prime Minister.
Najib’s release from “arbitrary detention”, based on Agong’s Decree, would mean the speedy resolution of all cases against him. There’s no smoke without fire.
The return of the Federal Territories Ministry was telling as it gets Prime Minister Datuk Seri Anwar Ibrahim out of the way and facilitates the Pardons Board for others in jail.
There would no doubt be role for Najib in government, Umno and the Barisan Nasional (BN). The BN has seen better days.
The BN, revitalised under Najib who has 4.6m Followers in FB alone, will see the return of its two core principles viz. decision-making by consensus (i.e. no voice against) and power-sharing. — 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.