Four judges, in the face of the DNA granted by their Panel Head, may have ‘erroneously’ deemed that it was fatal flaw in law, indeed not safe, under the circumstances. The Najib defence team argued Judicial Review in oral submission for three days as Appeal purportedly for 2nd bite at the cherry.
Commentary And Analysis . . . It was the story of the year in 2023, the big one that got away on 31 March last year, and it wasn’t about being in La La Land. In hindsight, Federal Court Review Judge Datuk Vernon Ong and three other judges with him could have emulated Judge Datuk Abdul Rahman Sebli, the Federal Court Review Panel Head. Judge Sebli granted DNA (discharge and acquittal) for former Prime Minister Datuk Seri Najib Tun Razak on the RM42m SRC International case on the grounds that “there were so many transgressions”. He added, for the same reason, that “retrial would be pointless”.
The opportunity for neutralising Karma — law of cause and effect as the 1st eternal law based on eternal truth — was lost. In Islam, sunnatullah is God’s law on cause and effect.
The judge/s can only consider what’s placed before the court. The judge/s are bound by what happens in court. The parties are bound by pleadings.
There’s no law and/or procedure/s which states that the court cannot disregard what’s placed before it and/or that it must explain if any argument was rejected. The court of law was about bringing closure. There must be finality of litigation. Otherwise, there will be no end, if not in court, the controversy will continue and even rage beyond the grave. Again, Karma exists only if we create it. No one can escape Karma.
DNA
Judge Sebli both disregarded and/or rejected some of what was before him, the latter without explanation, before granting DNA.
True, based on the Penal Code and the Judge 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. And here … and here …
It was travesty of justice when the Prosecution spun conspiracy theories, offered circumstantial evidence in civil case — i.e. judicial review — without corroborating proof under the Evidence Act 1950, and introduced inadmissible hearsay. The Prosecution, before the judicial review, did not object when defence had requests and left matters with the court. In judicial review, the Prosecution did u-turn in mid-stream, and trotted out conspiracy theories. Also, there was circumstantial evidence and inadmissible hearsay virtually coming out of Prosecution’s ears.
The conspiracy theories and circumstantial evidence have since gone out the window. The Bar Council, going against its own President, discovered that Najib’s defence team which had discharged itself and/or was discharged, had conducted itself professionally at all times on the SRC case.
Najib
Najib’s defence did not seek reinstatement of the judicial review on new grounds. It’s not clear whether reinstatement can still be done based on the Bar Council discovery on Najib’s defence team and the dismissal and/or striking out read by Judge Ong.
Judge Ong wasn’t majority ruling as reported by the media. There was no ruling at all by Judge Ong and the three judges with him. It wasn’t 4 (Judge Ong and three judges) vs 1 (Judge Sebli). There was only one ruling i.e. by Judge Sebli.
The bottomline was that under 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, due process, and the rule of law. Again, in the rule of law, there’s greater emphasis on the spirit of the law, albeit read with the letter of law. The letter of the law, by itself, isn’t law at law.
It’s public knowledge that Najib was jailed, unrepresented, on 23 August 2022 by the five person Federal Court Appeal Panel headed by Chief Justice (CJ) Tun Maimun Tuan Mat. The court appointed no legal representation for the former Prime Minister. It should have been hara kiri moment for the court if it had any sense of shame on violating its own procedures. There wasn’t even lip service on the rule of law before the court acted with impunity.
CJ Maimun
The CJ, it’s well known, claimed discretion beyond discretion on creating new protocols. It even went beyond the Sultan having residual and reserve powers.
There’s case law on the limits of discretion for lesser mortals.
The Perak case law 2009 was for Sultan.
The 1966 Stephen Kalong Ningkan case law in Sarawak was for the non-sultanates i.e. the Governor, not being hereditary ruler, was lesser mortal on discretion. The 1966 law was upheld, as good law, by the 1 September 2020 Federal Court majority opinion on discretion as defined in the Sabah Constitution. The unelected Governor could not dismiss the elected Chief Minister despite appointing him or her.
The appointed judge, between hereditary Sultan and unelected Governor, was bound by written court procedures. There may be nothing implied in court procedures as it risks there being no discretion if abuse of power can be proven.
There’s case law from Raja Azlan Shah on abuse of power. It was recently upheld on Article 145 on the role and functions of the Attorney General (AG) when the Federal Court ruled against AG Tan Sri Tommy Thomas on the immunity of the Director of the Asian Arbitration Centre.
Najib’s criminal cases were all about abuse of power, conflict of interest, and criminal breach of trust based on “deriving personal benefit” arising from bribery and corruption and being party to illegalities like money laundering activities.
1MDB CEO Arul Kanda aside, Najib was the only Cabinet Minister in court on criminal and civil cases involving his government. There wasn’t even one Cabinet Minister in court as character witness, either for or against the former Prime Minister. It was never raised in court that Najib’s premiership, like the Tun Mahathir Mohamad years from 1981 to 2003 and 2018 to 2020, degenerated into dictatorial premiership.
The Cabinet System adheres, albeit on paper, on two great principles viz. decision making by consensus i.e. no voice against; and collective responsibility (one for all and all for one).
In practice, since the Prime Minister recommends and the Agong appoints, Cabinet Ministers are at the mercy of the Prime Minister. Hence, the Cabinet like Parliament — especially during the Mahathir years — may become rubber stamp.
Basic Features Doctrine
Still, when all was said and done, the jurisdictional and constitutional issues were never considered on the RM42m SRC International case. The defence fell back on bare denial, painting Najib as scapegoat for fugitive fund manager Jho Low, and as beneficiary of the Arab donation from Saudi King who’s now on the other side and can tell no tales.
Patently, the Basic Features Doctrine (BFD) permeates the Constitution and prevents core clauses being amended and/or removed. Under the BFD, the Prime Minister and Parliament stands indemnified for “acts in office”, has immunity, and implicit Pardon. No Prime Minister and government can be brought to criminal court during term of office and/or after the term of office.
In the US, for example, the President grants Pardon even where no one has been charged or will be charged. President Trump pardoned daughter Ivanka and the husband Jared Kushner two days before he left office on 20 January 2021. Ivanka and Kushner were Trump’s Special Advisors during his presidency from 20 January 2017 to 20 January 2021.
Therein the matter also lies for the Agong on “miscarriage of justice” arising from Tainted Ruling in the High Court on the RM42m SRC International case and the UN Review on “arbitrary detention” based on the same case being incomplete in the Federal Court as there was no legal representation before jail. The Federal Court Review, except for Judge Sebli, made no amends. — NMH
Related internal links . . .
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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