Former Prime Minister Najib Tun Razak’s family can file habeas corpus application and/or lodge Petition with Conference of Rulers following Appeal with Agong on miscarriage of justice and thereby help Malaysia avoid real harm!
Commentary And Analysis . . . It’s disingenuous that those who allegedly hate former Prime Minister Datuk Seri Najib Tun Razak with vengeance, even pathologically, are virtually racing against time in the social media cesspools, lest he’s freed soon. The argument being made, increasingly weaker, was that Malaysia risks reputation and may suffer real harm, irreparable, if Najib goes free anytime soon viz. between now and January 31 or early February.
Indeed, the case can also be made that Malaysia risks real harm, irreparable, if Najib isn’t set free soon.
We know that nine judges in three courts had the same story. That isn’t the issue. A case, once closed, will not be re-opened unless there’s retrial. The RM42m SRC International case in Federal Court Review was about procedures, not merits. It wasn’t criminal case.
Enough has been enough on Najib’s arbitrary detention. It was brought about by politically motivated case for selective prosecution for selective persecution. The authorities concerned should have dropped the pretence and placed Najib under house arrest pending the UN Review and/or resolution on the matter by the Conference of Rulers, if not the Agong. It’s not clear whether the UN Review has come in, as expected, before Christmas. If so, the UN must have advised Malaysia that the SRC case wasn’t complete. It merits 2nd Review.
The haters want Najib, if possible, in jail for the full 12 years sentence. Unfortunately for the haters, even if conviction was perfected in law for perfection in law, prison procedures shave one-third off the sentence. Najib becomes eligible for Pardon, Agong or no Agong, after serving half the remaining eight years. In that case, based on the recent Ganja King precedent, he can be freed by the High Court.
The Pardons’ Board in Malaysia, under normal circumstances, can only meet on Najib’s case on 23 August 2026 i.e. if conviction has been perfected in law for perfection in law.
It’s unusual that the Pardons’ Board met last month on Najib’s case if conviction has been perfected in law for perfection in law. It must be the UN Review that saw the Pardons Board meeting last month. The Pardons’ Board will meet again soon after deferring announcement in December. That shows something may be cooking. There’s no smoke without fire.
The speculation remains rife that the Pardons’ Board will make two announcements soon viz. that Najib was jailed on 23 August 2022 without conviction being perfected in law for perfection in law; and that the UN Review advised Malaysia that there should be 2nd Review on the SRC case on the grounds that it was incomplete. It’s miscarriage of justice if conviction wasn’t perfected in law for perfection in law.
Alternatively, rather than risk disregarding criticism and/or rejecting them without explanation, the Pardons’ Board may make no announcement. The Pardons’ Board has no jurisdiction if conviction hasn’t been perfected in law for perfection in law.
Agong, based purely on Discretion in resolving miscarriage of justice arising from Tainted Ruling, can also issue Decree on Najib’s plight in jail since 23 August 2022. That will immediately set the former Prime Minister free. Najib’s case, in retrospect, isn’t about Pardon but Agong’s Decree based on Discretion. Pardon assumes that conviction was perfected in law for perfection in law.
The onus on the UN Review lies on Attorney General (AG) Tan Sri Ahmad Terrirudin Mohd Salleh. The Sabah AG or Sarawak AG can act if the AG in Putrajaya was indisposed or on vacation. It’s highly unlikely, given the political temperature in the country, that there will be 2nd Review on the SRC case as there’s risk of real harm.
The AG, shove coming after push, will probably drop all remaining criminal cases against Najib, and advise that all civil cases be withdrawn, and get the Mareva injunction (on assets) quashed. There should be Royal Commission of Inquiry (RCI) on the 1MDB Phenomenon and/or Truth And Reconciliation Commission (TRC) on government from 1957 to 2018.
True, based on the Penal Code and the Sebli ruling (see below), Najib’s family can file habeas corpus application and/or lodge Petition with Conference of Rulers following Appeal with Agong on miscarriage of justice. There’s op-ed in the media, on both these approaches, by suspended and retired Court of Appeal Judge Datuk Hamid Sultan Abu Backer.
We can also recall that Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli ruled DNA (discharge and acquittal) for Najib on 31 March last year on the grounds that “there were so many transgressions”. He added, for the same reason, that “retrial would be pointless”.
The Agong will head for Pahang, the home state, on January 31. The new Agong, from Johor, takes over on the same day.
It’s High Noon. It’s what separates the men from the boys.
Prime Minister Datuk Seri Anwar Ibrahim and the unity government, the three Attorney General (AG), the Attorney General’s Chambers (AGC) in Putrajaya, the court system, and the legal fraternity must be in consensus on whether Malaysia was about the rule of law. Otherwise, the country risks tearing up the Constitution for either civil war and/or Revolution, both probably long overdue.
Rule Of Law
Najib haters belabour in the delusion that they can fathom the rule of law, the basis of the Constitution. The letter of the law, by itself, isn’t law at all. It’s dictatorship. There’s no democracy, no consent of the governed, no legitimacy and there has been loss of sovereignty.
In short, the letter of the law by itself was rule by Man, rule by law and the law of the jungle where anything goes. It’s about acting with impunity even if the court pays lip service to the rule of law.
In fact, as evident in rulings, the court in Malaysia probably doesn’t pay even lip service to the rule of law. It allegedly falls back on the letter of the law by itself as law and rules with impunity. In law, albeit on paper, government can do whatever it wants, unless restrained by the court. The same court that can restrain government, but not injunct it, cannot be acting with impunity.
The court must place greater emphasis on the spirit of law in the rule of law — the basis of the Constitution — albeit read with the letter of the law.
We can recall that Chief Justice Tun Maimun Tuan Mat claimed discretion beyond discretion, like latter day Sultan, and jailed Najib unrepresented on 23 August 2022.
The government, which at least pays lip service to the rule of law before acting with impunity as well, has remained in stunned silence ever since Najib’s jailing. It can’t believe that the court of law in Malaysia could be so brazen in violating the rule of law when it isn’t possible for anyone, in jurisprudence and constitutional law, to know law.
In the rule of law, 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 court procedures, due process, and the greater emphasis on the spirit of the law.
Mahathir In Jail
The Johor Sultan decreed, not so long ago, that either more people — meaning Tun Mahathir Mohamad — should join Najib or that he should be released.
The Johor Sultan added that no one was too old for jail, even if 100 years old. The Sultan hasn’t forgotten that Mahathir alleged that the Chinese — presumably from China — bought land from the Istana.
Mahathir further alleged that Sultan would not protect the ummah as they preferred doing business with the Chinese who, unlike Muslim, could give them money. The dictatorial former Prime Minister even disclosed, in the unkindest cut of all, that he never liked Sultan and never agreed with them. Mahathir risks treason charges, not just sedition.
Interestingly, an online poll on the Facebook page “Meanwhile in Malaysia” on 10 January found that a majority of respondents were in favour of Najib being “pardoned”, according to the Star.
A total of 82% of 16,562 voters were in favour of freeing Najib, 15% disagreed and 3% were undecided. — 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.