UN Review on arbitrary detention can only be based on fact-finding that former Prime Minister Najib Tun Razak was jailed, unrepresented, and that conviction on the RM42m SRC International case wasn’t perfected in law for perfection in law. There’s case for compensation!
Commentary And Analysis . . . In law, taking the cue from cause papers in civil action, the High Court must first accept the principle that compensation was due for former Prime Minister Datuk Seri Najib Tun Razak being under arbitrary detention since 23 August 2022.
Najib, in follow up, must quantify the compensation at the asst registrar’s office. The High Court will determine the compensation quantum for payout. If any party was unhappy with the quantum, i.e. whether Najib or the Attorney General (AG), he can appeal in the superior court. The superior court will rule based purely on the rule of law.
Najib’s case/s including the conviction on the RM42m SRC International charges, have never been about the rule of law, the basis of the Constitution.
The UN Review on arbitrary detention, which just came before the 11 member Panel and will take some time, can only be based on fact-finding that the former Prime Minister was jailed, unrepresented, and that conviction on the RM42m SRC International case wasn’t perfected in law for perfection in law. Defence lawyer Tan Sri Shafee Abdullah gave the media update, on the UN Review, today i.e. 7 February. Again, there’s case for compensation.
This is an interesting read …
We have written previously on the discretion of the DG (Director General) of the Prisons Dept, with or without reference to the Home Minister, on house arrest and/or release based on letter of representation from Najib, citing the special circumstances.
The Home Minister might not get involved for political reasons.
No court can go against the DG unless abuse of power can be proven. Discretion isn’t law.
Najib may not have filed letter of representation with the DG.
If he did, judicial review (JR) could be filed. Of course, the court may throw out the JR. If so, Najib can appeal all the way to Federal Court Review. It will help keep alive the issue on arbitrary detention.
Najib, in response to the letter from Pardons’ Board on 29 January 2024, can file Petition directly with Agong for Decree, based on Discrection, for Freedom. He can cite the special circumstances.
The former Prime Minister should not file Petition with Agong for Pardon. In Malaysia, unlike in America for example, Pardon implies admission of guilt. Najib has chance to get compensation for arbitrary detention if Agong’s Decree for Freedom, based on Discretion, was granted. The UN Review on Arbitrary Detention also refers.
Najib And The Pardon Issue
Many stories are being churned out by the media on Najib especially since Agong halved the 12 year jail sentence on 29 January, i.e. the day before he left for home in Pahang. The RM210m fine, which Najib need not pay as default brings additional jail running concurrently with the main sentence, now reads RM50m after reduction. There’s no reason for paying the fine.
No one in their right mind pays disproportionate fines. Therein the matter lies. In jurisprudence, disproportionate sentences are unlawful. Let’s not go there. The AGC (Attorney General’s Chambers) may have theology coming out of its ears. The court cannot get into theology. It’s only about the rule of law, the basis of the Constitution.
It’s counter-productive if the many media stories on Najib, especially since 29 January, are dignified and viralled through likes and sharing.
In fact, these stories on Najib need no response unless they are about education on the subject. The media does not note the difference between law on the one hand and the Agong’s Decree, based on Discretion, for Freedom and Agong’s Decree, based on Discretion, for Pardon. In fact, the media stories distort Agong’s Decree and/or mislead the people on the halving and fine reduction. Decree and Discretion and Pardon are not law.
The court of law, being only about law, has no jurisdiction on Decree and Discretion, whether for Freedom or Pardon. These are not matters for judicial consideration and resolution. However, Discretion no longer exists if abuse of power can be proven. It’s unthinkable that Agong’s alleged abuse of power, implied by the media and ex-DAP MP Tony Pua, can be proven.
It was Trial by Media, making Najib the scapegoat for the 1MDB Phenomenon, that put Najib in jail. Agong knows that 1MDB failed when the IPO collapsed and imploded in the wake of the Trial by Media. Then, there was “too big to fail” Goldman Sachs which stagemanaged the 1MDB Phenomenon.
Most stories on Najib are put out by those who have no locus standi. They are about jumping on the bandwagon and remaining in the public eye via manipulating the media — unthinking animals — for gathering the votes. Najib doesn’t enter the picture.
The people only see the face of the “no locus standi” crowd and name. In two weeks, they won’t remember what was said and what wasn’t. They only know that something was said but the details have been forgotten in the war of words.
The figures backing former Prime Minister Najib’s release on 23 August this year, and the case for compensation for arbitrary detention, are in the following three internal links.
The dispute on the 23 August 2024 release date, if any, can be resolved by the High Court. Najib’s family can file habeas corpus Application. The Ganja King case refers.
Najib, under the original 12 year jail sentence, was eligible for early release and/or parole on 23 August 2026 i.e. four years after jailing. Four years would be shaved off for weekends, public holidays and good behaviour. Najib serves only half the remaining sentence.
If the Pardons’ Board says that Najib will only be eligible for early release and/or parole on 23 August 2028, after the 12 year jail sentence had been halved, that’s worse fate for the former Prime Minister.
The UN Review on arbitrary detention can only be based on fact-finding that Najib was jailed, unrepresented, and that conviction on the RM42m SRC International case wasn’t perfected in law for perfection in law. Again, Najib merits compensation for Arbitrary Detention since 23 August 2022.
In the rule of law, the manner in which the accused was convicted comes first. The conviction follows if it has been perfected in law for perfection in law. There must be compliance with court procedures, due process, and on 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.
Then, Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli ruled DNA (discharge and acquittal) for Najib on 31 March last year. There’s no retrial under DNA.
In law, a line must be drawn somewhere, lest Pandora’s Box opens. Pandora’s Box opened when former Prime Minister Najib turned up in criminal court for “acts in office”. Under the Basic Features Doctrine (BFD), which permeates the Constitution, no precedents can be created on Prime Minister and Parliament for “acts in office”. They stand indemnified, have immunity, and implicit Pardon, lest future Prime Minister and Parliament are at risk.
Court Failed On Representation
Also, the UN Review on Arbitrary Detention will come in sooner rather than later. It will discover the RM42m SRC International case incomplete and merits 2nd Review. That will further support the civil action for compensation. Patently, the AG could have filed the RM42m SRC International case as civil action. Criminal case can be instituted if civil action was challenged.
The Najib defence team did not exist during the Federal Court Appeal stage. There was no Submission from the Defence, only from the Prosecution. The court did not appoint legal representation for Najib. The Five Person Federal Court Appeal Panel, headed by Chief Justice (CJ) Tun Maimun Tuan Mat, was allegedly all about jailing Najib, probably by hook or by crook. We stand corrected.
The CJ, as implied in her own words on Discretion and Protocol, allegedly claimed Discretion beyond Discretion, like latter day Sultan. CJ isn’t hereditary position and has no residual and reserve powers.
Umno Failed Najib
Umno has failed Najib in more ways than one.
When the BN (Barisan Nasional) came in with 79 parliamentary seats, the single largest number under one platform, after GE14 on 9 May 2018, Umno did not stand by Najib as caretaker Prime Minister in hung Parliament. It’s surprising that the party that ruled Malaysia since 1957 went out without even a whimper. Umno should allow belated post-mortem. That may facilitate law reforms.
The Istana did not invite Najib, as the incumbent, for first chance at putting together the government for hung Parliament.
There was breach of protocol and conventions when the Istana disregarded the fact that Najib wasn’t seen with the Agong for offering resignation or alternatively express willingness on putting together the new government.
If Najib had been sworn in as Prime Minister on 9 May 2018 in hung Parliament, he wouldn’t be in jail today and eligible for compensation for arbitrary detention.
“Never without make-up visitation from Hell” (state of great distress) Tun Mahathir Mohamad, who had only 12 seats in Parliament and an Independent in tow, was sworn in as the 7th Prime Minister by reluctant Agong from Kelantan. The Agong abdicated within months. — 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.