The imminent release of former Prime Minister Najib Tun Razak from arbitrary jail blows hot and cold in the media, and has gone viral in the social media, and all walks of life in Malaysia and abroad!
Commentary And Analysis . . . Speculation is rife that former Prime Minister Datuk Seri Najib Tun Razak, the related issue decreed by the Johor Sultan, has had his 12 year sentence in arbitrary jail — for the RM42m SRC International case — reduced by half by the Agong who just left.
The political hot potato issue of putting “never without make-up” dictatorial former Prime Minister Tun Mahathir Mohamad in jail, based on the grapevine, probably no longer arises.
Of course, Mahathir could still be jailed as the Johor Sultan decreed that no one was too old, even at 100 years old, for jail.
If true, one third of Najib’s six years, based on procedures, would be taken off for weekends, public holidays and good behaviour.
That leaves four years.
Najib serves half the four years, i.e. two years, and becomes eligible for freedom, with or without Pardon. The High Court — read the Dr Ganja case — can order his release. Najib, Agong or no Agong, will be home on 23 August this year. That’s seven months away. The eagerly awaited government statement on Najib would probably come only on 21 August, i.e. two days before he goes home, lest there’s political fallout.
The Agong from Pahang returned home on 30 January, leaving Najib still languishing in jail, after chairing the Pardons’ Board meet on 29 January. The Johor Sultan, who decreed not so long ago that either more people should join Najib in jail or that he be released, takes over on 31 January as the next Agong. The Agong, as Johor Sultan, decreed that Mahathir should be in jail.
There’s complete list of Mahathir’s sins of commission and omission based on his own words.
The rumour mills in Malaysia, the most reliable in the world, albeit in the past, are in overdrive on the imminent release of Najib. He was jailed, unrepresented, on 23 August 2022. There are no secrets in Malaysia. All rumours, eventually, come true. This should be in the Guinness Book of World Records.
Indeed, during the years from 1981 to 2003 and again from 2018 to 2020 and the years in between, Mahathir was the Chief Rumour Monger in Malaysia. Old habits die hard. Mahathir remains still at it, churning out all sorts of rumours, although nearing 99 years old.
It was the three Mantra, chanted by Mahathir daily from even before GE14 on 9 Wednesday 2018 that persuaded the court that Najib should be jail. The court obliged as otherwise Mahathir would be declared Great Liar for all eternity. The three Mantra . . . Najib curi duit, Najib curi duit kerajaan, Najib curi duit rakyat (Najib stole money, Najib stole government money, Najib stole the people’s money).
Najib, between Mantra and Trial by Media allegedly manipulated by Mahathir who has deep pockets, had no chance. It was no doubt resolved in and outside court, via allegedly forum shopping for judge, that the 6th Prime Minister and son of the 2nd Prime Minister — Tun Razak — should be in jail by hook or by crook.
The RM42m SRC International case should have been by civil action.
Instead, Attorney General (AG) Tan Sri Tommy Thomas — also from Kerala in southwest India, like Mahathir — instituted criminal suit on the grounds that “the money was not with Najib”. Civil action would have kept Najib out of jail. However, there was nothing that could be frozen, seized and forfeited from Najib. The High Court had the list of nine people who received the RM42m but not as beneficiaries. It was for corporate social responsibility (CSR) activities so that the people became direct beneficiaries.
Patently, Najib’s jailing isn’t Pardons’ Board matter as the RM42m SRC conviction wasn’t perfected in law for perfection in law. The UN Review, when it comes in soon, will find the RM42m SRC case incomplete. The UN would advise 2nd Review. It wouldn’t happen now since Najib would be home soon and remains with the unity government. Also, the remaining criminal and civil cases against him would no doubt fizzle out. Some have already been thrown out by the court.
Agong could have granted Najib release by Decree, from arbitrary jail, based on miscarriage of justice arising from Tainted Ruling in the High Court on 28 July 2020.
Judge Datuk Mohd Nazlan Mohd Ghazali, it emerged in the superior court, did not disclose that he was caught in conflict of interest situation and should have recused himself. MACC probed Judge Nazlan but was allegedly prevented by Chief Justice Tun Maimun Tuan Mat from dragging him to criminal court for various offences including under the Penal Code. She claimed, like latter day Sultan, discretion beyond discretion and enacted new Protocol allegedly without any basis.
In the rule of law, the basis of the Constitution, the manner in which the accused was convicted comes first. Conviction only follows if it has been perfected in law for perfection in law. There must be compliance on the court’s own procedures, due process, and the greater emphasis on the spirit of the law, albeit read with the letter of the law. The letter of the law, by itself, isn’t law at all. It’s about falling back on rule by law — i.e. rule by Man — and acting with impunity.
Interestingly, while both the court and the government stands accused of acting with impunity, the latter at least pays lip service on the rule of law. The court never mentions the rule of law in any ruling. I stand corrected.
Except for Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli on the RM42m SRC case, probably no court ruling mentions perfection of conviction in law for perfection in law. Judge Sebli ruled DNA (discharge and acquittal) on 31 March last year for Najib on the grounds that there were “so many transgressions”. He added, for the same reason, that “retrial would be pointless”.
Suspended and retired Court of Appeal Judge Hamid Sultan Abu Backer, likewise, expressed dismay over the manner in which Najib was treated by the court.
Jurisdictional And Constitutional
The jurisdictional and constitutional issues, on the RM42m SRC International case, were never visited by the High Court, and disregarded by the superior court.
Under the Basic Features Doctrine (BFD), which permeates the Constitution, no precedents can be created in law on the Prime Minister and Parliament. Just take a look at the Commonwealth jurisdictions. Even the white minority Apartheid regime in South Africa wasn’t put on trial.
The Prime Minister and Parliament stands indemnified for “acts in office”, has immunity, and implicit Pardon.
Najib’s criminal cases were all about abuse of power, conflict of interest and criminal breach of trust on “deriving personal benefits” arising from bribery and corruption, and being party to illegalities like money laundering activities. The charges do not mention “secret profits” since there were none as proven by forensic accounting on the money trail. The court disregarded political donation and CSR activities.
If abuse of power can be proven, then discretion does not exist.
In addition, Najib faces civil cases based on the criminal cases. In law, criminal cases cannot be used in civil cases, lest there’s violation of the rule of law.
The rulings in the RM 42m SRC International case were available in the Internet before they were read by the court. It was about building up public perceptions against Najib. No one can say that the rule of law was upheld in Najib’s case.
In law, Article 8 in Malaysia, there can be no discrimination save as provided by sunset clause which must have expiry date. In the rule of law, no one was above the law, and all are equal under the law. — 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.