There’s real risk that former Attorney General Tommy Thomas would be dragged to justice if abuse of power, under Article 145, can be proven in the RM27m SRC case, either before or after Najib Razak was granted DNAA, if not DNA!
Commentary And Analysis . . . The late Ad Hoc Prosecutor Datuk Gopal Sri Ram may have had fixation with the proverbial “prosecutorial discretion” on the RM27m SRC International criminal case involving former Prime Minister Datuk Seri Najib Tun Razak. Attorney General (AG) Tan Sri Tommy Thomas, shooting himself in the foot, consented on the matter.
There’s real risk that Thomas would be dragged to justice if abuse of power, under Article 145, can be proven in the RM27m SRC case either before or after Najib was granted DNAA (discharge not amounting to acquittal), if not DNA (discharge and acquittal).
That may or may not have bearing on the related RM42m SRC International case.
Najib Letter of Representation
Again, Najib’s Letter of Representation on the RM27m SRC Case merits DNAA, if not DNA.
Najib has already filed three abuse of power cases against Thomas, one pending for months, two rejected by the High Court citing Article 145 allegedly in distorted interpretation. The recent Asian Arbitration case on abuse of power by Thomas, and the related Raja Azlan Shah case law, refer.
Now, the RM27m SRC case from six years back, has caught up with the Attorney General’s Chambers (AGC) and haunts its 2K+ lawyers. Sri Ram, the proverbial visitation from Hell (great distress) for the Najib family, has moved on. He’s on the other side in nothingness where even God may have no work. Thomas resigned as AG four days after Tun Mahathir Mohamad abruptly quit on 24 February 2020, as Prime Minister, and was appointed Interim Prime Minister (Mahathir) until 1 March 2020.
Deliberately Planned
The RM27m SRC case may have been deliberately planned by Sri Ram as fallback position for the “larger”, albeit “simpler”, RM42m criminal case. If Sri Ram has entered the eternal fires, there’s no doubt that he will be joined sooner or later by bosom pal Thomas, Mahathir, Chief Justice Tun Maimun Tuan Mat, and Judge Datuk Mohd Nazlan Mohd Ghazali. All were allegedly in cahoots on putting Najib in jail by hook or by crook. The former 6th Prime Minister was jailed, unrepresented, on 23 August 2022. It was heinous offence.
The Prosecution spun conspiracy theories around Najib and the Defence team. The Bar Council has cleared the Defence on alleged misconduct. No court in the world goes into conspiracy theories, circumstantial evidence in criminal cases, and inadmissible hearsay.
DNAA
It may be fatal flaw in law if the RM27m case proceeds under Amla charges. It would be safer in law, considering that the RM42m SRC case has been concluded, if AG Tan Sri Ahmad Terrirudin Mohd Salleh accepts Najib’s letter of representation on the RM27m SRC case and recommends DNAA, if not DNA.
Anything can happen in court if the said case proceeds.
The Defence team would argue on the merits of the case and bring in the RM42m SRC case for second bite at the cherry, albeit perhaps too little, too late.
Najib pleaded not guilty, on 3 February 2019, on three laundering money charges. The Prosecution claims that proceeds totalling RM27m from allegedly illegal activities was found on 8 July 2014 in the former Prime Minister’s three bank accounts at AmIslamic Bank, Ambank Group Building, No 55, Jalan Raja Chulan. The Prosecution claims that Najib accepted the money. It’s not clear whether the Prosecution remains confident on proving that Najib was party to illegalities on the RM27m.
Money laundering has been defined by international law — national law being read as compliant — as having assets far in excess of what can be legitimately accumulated over lifetime. Such assets and “secret profits” can be frozen by civil action, seized and forfeited as state revenue. The onus remains on the errant parties who can cite precedents. They can offer out of court settlement based on surrendering 40 per cent of ill-gotten assets without prejudice i.e. no admission of liability. The state will bring criminal suit if errant party challenges civil action.
Najib has been charged under section 4(1)(a) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Amla).
The charges carry maximum fine of RM5 million if convicted, maximum five years jail, or both, and further jail in default on the fine.
Postponed
The RM27m case was postponed several times as Najib had several other cases, criminal and civil, including the RM42m SRC case.
Thomas, in his own words, said the AGC went with the RM42m SRC case first because it was simpler, virtually open and shut. If so, there was no reason for the RM27m case. This isn’t the first time that Thomas has been bundle of contradictions.
“My Story: Justice In The Wilderness”, the Thomas Memoirs, may be “the father and mother of all contradictions”. He takes liberties with the truth on the AGC having Muslim lawyers coming out of the ears, Christianity, the caste system, and the old country Kerala in southwest India.
The government plans RCI (Royal Commission of Inquiry) on the Memoirs as recommended by the Task Force. So far, probably fearing that Pandora’s Box would open on the AGC and law education, the RCI hasn’t happened.
Najib
In Najib’s RM42m SRC International case, during judicial review, the defence argued on the merits of the case for three days despite being cautioned early i.e. on the second day by Judge Datuk Vernon Ong. Judge Ong pointed out that the court cannot look at the merits of the case during judicial review. It was only about procedures.
The court found no jurisdiction when the Najib defence argued review as appeal for another bite at the cherry. The judicial review was dismissed. There was no ruling.
Judicial Review Panel Head Datuk Abdul Rahman Sebli ruled DNA (discharge and acquittal) for Najib on the grounds that there were so many transgressions. Judge Sebli, based on the same reason, added that it would pointless for re-trial.
It’s the work of the court to find the law and declare it. The court, if it accepts novel developments raised by lawyer, can and may declare that the lawyer’s opinion can stand up, and declare it as novel development in law for landmark ruling.
Therein the matter lies.
No Ruling
The media hailed the judicial review as 4 vs 1 against Najib. There was no 4 vs 1 ruling. There was only one ruling i.e. by Judge Sebli. The three other judges, led by Judge Ong, had no ruling since the court discovered it had no jurisdiction i.e. it was not matter for judicial consideration and resolution.
The court of law was only about law.
It’s not about ethics, for those unfamiliar. It’s not about moral values, civilisational values including Malaysia Madani based on Islam, theology, sin, God, righteousness, justice or truth. It’s only about law.
True, based on the Penal Code and the Sebli ruling, 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.
UN Review
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.
The onus, if the UN Review finds the RM42m SRC International case was incomplete, lies on AG Ahmad Terrirudin. 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 RM42m SRC case as there’s risk of real harm. — 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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