Najib And The Issue Of Home Detention

Former Prime Minister Najib Tun Razak, jailed unrepresented on 23 August 2022, may have several options besides house arrest, on ending gridlock on plight in jail!

Commentary And Analysis . . . Home Minister Datuk Seri Saifuddin Nasution, in putting on blinkers, has declared “disingenuously” that former Prime Minister Datuk Seri Najib Tun Razak doesn’t qualify for home detention i.e. form of arrest.

Apparently, he was giving further and better particulars on the government’s newly-announced initiative for easing over-crowding in prisons. Najib was jailed unrepresented, on 23 August 2022, by the Federal Court Appeal Panel on the RM42m SRC International case.

Prime Minister Datuk Seri Anwar Ibrahim claimed in media statements, YouTube and TikTok that he pushed for Najib’s release. It would have been more helpful if he had whispered in the Home Minister’s ears. The Director-General of the Prison’s Dept would have placed Najib under house arrest pending UN Review on arbitrary detention.

It can be proven that Anwar may be doing number on Umno, based on the Mantra, “heads I win, tails you lose”. Earlier, based on special circumstances, Agong could have granted Decree for Najib’s Freedom within two weeks of 23 August 2022.

More on home detention and/or house arrest later. We resume the Debate on the release dates for Najib.

The Pardon’s Board, in letter on the 29 January meet presided over by Agong, said that Najib would be released on 23 August 2028 i.e. six years after 23 August 2022. The letter doesn’t mention remission. Agong halved Najib’s 12 year jail sentence imposed by the High Court on 28 June 2020.

Under the original sentence, Najib merits one third remission, and serves only half the remaining eight years. He would be home on 23 August 2026 i.e. two years before the date in the Pardons’ Board letter.

Najib

If Agong tweaks the Pardons’ Board letter, Najib would get one third remission on the six years, serve half the remaining four years, and be home on 23 August this year (2024).

It’s not known whether Najib sought further and better particulars from the Pardon’s Board on the 29 January meeting which considered Petition for Freedom. It’s unlikely that Anwar will intercede on the matter and duly advise the Agong.

Alternatively, Najib’s Family can file habeas corpus application. The Dr Ganja King case refers.

House Arrest

It’s semantics whether home detention or house arrest. If synonymous, home detention can perhaps be used as term when easing over-crowding in prisons and house arrest for political cases. The latter situation, created by political prosecution and political persecution, has been used in Malaysia for getting rivals and enemies out of the way, permanently if possible, otherwise temporarily in buying time for political dynasty. The Mahathir Dynasty may be the most notorious example in Malaysia.

No court, of course, goes into conspiracy theories, political prosecution, political persecution, circumstantial evidence except in civil cases, and hearsay. The court of law was only about law.

There’s thin line between political donation and “deriving personal benefits” in the MACC Act 2009 — read bribery and corruption — based allegedly on abuse of power, conflict of interest and criminal breach of trust.

It’s legal minefield when there’s no law on political donation. Under the MACC Act 2009, political donation cases can be read in court as “deriving personal benefits”, or otherwise, in midstream.

In abuse of power case, the other side of the same coin, the Prosecution sees the accused being party to illegalities like giving blessing for wrongdoing and/or money laundering activities and retention of “secret profits”.

In civil action, the said monies are owned by the government as state revenue. Companies, as Principals, may also claim “secret profits”. The Sabah Foundation’s RM380m, retained by former Sabah Chief Minister Tan Sri Musa Aman after claiming political donation as afterthought in the High Court on 8 June 2020, refers. Sabah Foundation also has other claims, totalling RM1b, against Musa. His family roots on the paternal side, for those unfamiliar, lie in India (British India Army in Calcutta) and southern Afghanistan, and not in Pakistan as claimed in the social media by other Muslim.

Home Minister

We explore whether the Home Minister risks mud on the face, home detention or house arrest, semantics or no semantics.

The over-crowding in prisons aside, Najib was allegedly under arbitrary detention as political detainee. Again, the Director General of Prisons and/or Home Minister should have placed Najib under immediate house arrest on 23 August 2022 pending UN Review on arbitrary detention and/or the completion of prison sentence. The court of law does not have jurisdiction on discretion unless abuse of power can be proven. There must be locus standi.

The UN Review cannot determine that the RM42m SRC International case was completed.

The case disregarded and/or evaded so many preliminaries. The jurisdictional and constitutional issues were never addressed. The court did not allow the introduction of fresh evidence. It was safer in law, if the court had allowed the matter in dispute on issue in conflict. The open court was the right place for determination on whether the new evidence was relevant. The new evidence, not directly touching on the RM42m charge, does not make it inadmissible.

The 1MDB IPO (initial public offering) failed before GE14 on 9 May 2018 when the Opposition stepped up Trial by Media — subjudice and contempt — against Najib. The then Prime Minister was made scapegoat in the media, court of public opinion, the social media and the court of law for 1MDB’s “failure”. The court of law was persuaded, not by the rule of law, but by Trial by Media. The court, mindful of public perceptions built up by Trial by Media, fell back on the letter of the law, by itself, and acted with impunity. The letter of the law, by itself, isn’t law at all.

Media

The media should not give space to those who harp on “race”, religion, clanishness, tribalism, feudalism, DNA and geographical origin.

The court, Parliament and Constitution can’t get into these elements and theology.

There are only lawmakers in Parliament.

The lawmakers, elected by majority, stand pledged on Oath for serving all without fear or favour.

The updated Code of Ethics should strive for eradicating the following media practices viz. self-censorship, censorship, denying right of reply to even the media’s own content, blocking whatsApp, blocking phone and email address, deleting comments, suspending subscription account indefinately and journalists posting derogatory comments in Blog kept by readers.

Non-Compliance

Najib’s conviction wasn’t perfected in law for perfection in law. Under the rule of law, the basis of the Constitution, the manner in which the accused was convicted comes first. Then, conviction can follow. There was non-compliance with procedures on the RM42m SRC International case, no due process, and the letter of the law was read, by itself, as law.

There’s greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law. The spirit of the law trumps the letter of the law.

Najib in court, ultimately, isn’t about him per se but the rule of law.

Najib, allegedly victimised by violation of Article 8 among others, was the sole member of the Cabinet charged for “acts in office”. No Cabinet Minister turned up in court against or for him and as character reference.

It wasn’t proven in court that Najib was non-compliant on two great principles which were the basis of the Cabinet system viz. decision making by consensus i.e. no voice against, and collective responsibility (all for one, and one for all). The minutes of cabinet meetings are under the Official Secrets Act 1972 (OSA’72).

We can recall Chief Justice Tun Richard Malanjum’s farewell address in 2019. He cautioned the legal fraternity, court and judiciary on belabouring in the delusion, probably driven by demons, and acting with impunity. The letter of the law, by itself, isn’t law at all, he added.

There are many redundant Articles in the Constitution. — NMH

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