High Court Judge Amarjeet Singh will heave huge sigh of relief in 50 days time, i.e. on June 5, if former Prime Minister Najib Tun Razak’s plight in jail was resolved by house arrest before the next judicial review!
Commentary and Analysis . . . Former Prime Minister Datuk Seri Najib Tun Razak would hopefully be under house arrest by June 5, the D-Day set by High Court Judge Datuk Amarjeet Singh. He would be ruling on whether leave can be granted for the former’s judicial review (JR).
Najib’s lawyer Tan Sri Shafee told the media outside the Kuala Lumpur High Court on 17 April that he received no response to the letters he sent to multiple ministers seeking confirmation on the royal addendum, including Prime Minister Datuk Seri Anwar Ibrahim. “If the leave was granted, the court will set date for oral submissions on the merits of the legal action,” he added.
It may not be against procedures if the court disregards the jurisdiction issue in conflict between parties in dispute and transforms the JR, with or without Application by Najib, into Application on “curative jurisdiction”. We stand corrected. More on this later.
It’s procedure that the court can only rule on matters placed before it.
The judge was bound by what happens in court and the parties in dispute, on issues in conflict, were bound by pleadings.
Closure
The court may well disregard matters placed before it and/or reject them with or without explanation.
The court was about closure. Closure comes when litigation ends.
If Najib was denied JR on June 5, he must file for reinstatement of the Application based on additional, and new, grounds viz. “curative jurisdiction”.
The reinstatement should also be based on the former Prime Minister diplomatically, and gently, declining the halving of the 12 year jail sentence. He should explain the decision. It can be argued that the various dates on Najib’s sentencing, with and without remission, were flawed. They were unsafe in law.
There’s lacuna (gap) in local law on “curative jurisdiction”.
Case law from Commonwealth jurisdiction can be cited as Advisory Opinion for declaring local case law.
The Supreme Court of India, in novel first, ruled last week on “curative jurisdiction”. The Apex court, in doing so, went against the earlier ruling on Delhi Metro.
The court, contrary to public perceptions, does not decide but merely rules on decisions taken by the parties in dispute on issues in conflict. The court may suffice with oral ruling only. If there’s Appeal, based on leave being granted, the judges may or may not give written ruling. Let’s not go into the why lest Pandora’s Box opens. The written ruling carries the grounds for the judgment. Still, based on practice directions, further Appeal/s were possible even without written grounds of judgment.
Najib And Suu Kyi
Fifty days between April 17, when the judge sat in Chambers on the matter, and June 5 is a long time. It’s obvious — “we stand corrected” — that the judge was giving sufficient time for settling the matter out of court. “Mystery witness” and Umno President, Datuk Seri Ahmad Zahid Hamidi, turned up on 17 April with “explosive Affidavit” in Najib’s favour on house arrest.
It’s not clear why the media was barred from the proceedings on 17 April since it was held in Chambers.
Malaysia, in taking decisions on Najib, can take the cue from ex-Myanmar leader Suu Kyi being placed under house arrest. The onus remains on the government since Najib was jailed, unrepresented, on 23 August 2022.
Under normal circumstances, the leave application was settled the day it was heard, or at the latest between 14 and 30 days. In this case, the matter was not heard, determined and resolved immediately on 4 April because lawyer Shafee said that he had “mystery witness with Affidavit”. If not for the “mystery witness”, the Judge would have struck out the JR based on Attorney General Tan Sri Ahmad Terrirudin Mohd Salleh arguing that the court had no jurisdiction.
Malaysia, for those unfamiliar, has three AG including two in Kota Kinabalu and Kuching respectively. The other AG can also step in for AG Terrirudin. There’s always the first time.
The 5 June date arose because the AG probably asked on 17 April for time, not extension of time, for resolving the matter on the government side i.e. in short concede, probably lest abuse of power be proven. Again, we stand corrected.
Alternatively, the AG may have merely parroted the line that the court has no jurisdiction on the matter before the judge. We can only hazard guess that lawyer Shafee would have argued that the matter involves abuse of power which can be proven. In that case, the judge would have been left with no choice but concede that the jurisdictional matter was premature and/or irrelevant.
There’s case law on abuse of power from Raja Azlan Shah and Asian Arbitration. The court has jurisdiction on abuse of power.
Discretion and abuse of power are two different creatures.
House Arrest
It’s unthinkable that any court would ever consider abuse of power by Agong in granting house arrest based on Decree arising from Discretion. The alleged abuse of power on house arrest could only have taken place in government i.e. by the Prime Minister, the Home Minister who exercises oversight on the Director-General of Prisons, and the Attorney General. The Istana doesn’t enter the picture.
The court, being court of law, has no jurisdiction on Agong’s Discretion.
Discretion isn’t law.
There can be no law that Pardon’s Board has oversight on Agong’s Discretion.
In the Asian Arbitration case, the Federal Court found that AG Tan Sri Tommy Thomas committed abuse of power. The Director wasn’t charged with corruption although, in law, immunity stood waived when there was criminal wrongdoing. He got back the job.
In AG Thomas’ case, despite “proven legal incompetence and abuse of power”, he walks around free as a bird and pontificates sanctimoniously on this and that and that and this. In fact, he may not know whether he was coming or going. Opinion isn’t law. It’s the court which can declare law. Declarations are not remedy. In law, if there are rights, there must be remedy.
AG Terrirudin would walk around free as a bird as well even if the High Court was persuaded that he, virtually and/or inadvertently, committed abuse of power with Agong’s Decree — if it exists — on house arrest. The case can also be made out, taking the cue from AG Thomas, on legal incompetence. The fact that Najib filed JR on house arrest was sufficient proof on AG’s alleged wrongdoing.
Still, proving abuse of power isn’t remedy for Najib. Again, in law if there are rights, there must be remedy. The court can’t say that the former Prime Minister merits house arrest based on Agong’s Decree, whether it was flawed in “law” and therefore unsafe, or otherwise. However, the Agong can step in and grant fresh house arrest with further and better particulars on the halving of Najib’s 12 year jail sentence. If the halving includes remission, Najib would be released on 23 August this year, with or without house arrest, with or without Pardon.
Remission
In short, the issue may not be house arrest per se but whether halving of the jail sentence includes remission i.e. third of sentence deducted for weekends, public holidays and good behaviour. There was no mention of remission in the 29 January letter from the Pardons’ Board on the Pardons’ Board meeting. The letter, which Najib reportedly received, was also copied for the Director-General of Prisons.
In law, Article 8 in Malaysia, there can be no discrimination.
On 4 March, “Home Minister Datuk Seri Saifuddin Nasution Ismail assured that Najib was not on the list of prisoners who would be serving time via home arrest”.
The minister told the media that “only prisoners serving fewer than four years of jail time, senior citizens, pregnant women, and people with disabilities will be on the home detention list.”
“Najib was not included in that list,” he said.
It was misleading. Home Detention remains separate matter from Agong’s Decree on house arrest for Najib.
There’s no Agong Decree on Home Detention.
Alternatively, political pressure on the government may force them on Agong’s Decree, if it exists, on house arrest.
Umno members may descend on the streets to uphold the sanctity of the Constitution. It’s here and now issue. There’s no proof that there’s work in nothingness on the other side.
The judge may be persuaded by AG, on June 5, that the court has no jurisdiction on Najib’s JR. In Chambers, on April 17, the AG would have kept parroting that like record stuck in musical groove.
Affidavits
Zahid’s Affidavit stands by itself. He must get support from the others mentioned in his Affidavit viz. Tengku Zafrul and Pahang Menteri Besar Dato’ Sri Wan Rosdy bin Wan Ismail. Then, the case can be made out for abuse of power.
Zahid’s Affidavit was accessible for the public on the judiciary website. Affidavit was sworn statement on Oath.
Senator Tengku Zafrul has been reported to say that there are some errors in Zahid’s Affidavit and he will issue his own Affidavit to correct these errors. NMH understands that these are just minor errors and does not mean Zahid’s Affidavit does not hold water.
These Ministers would know that they risk ten years’ jail for perjury if the Decree does not exist, thus the seriousness of these Affidavits must have been deliberated upon at length before they were presented to the court and ultimately made public.
Real Story
Judge Amarjeet, in considering the Affidavits, may well take the view that “we don’t know what really happened. We don’t know the real story.”
If all goes well with Najib from now onwards, the judge would find on 5 June that the Application for Leave for Judicial Review (JR) and related Application had become academic and hence rendered redundant. It means that 5 June in court would be over in three minutes if the former Prime Minister was already under house arrest.
If there’s no out of court settlement by 5 June, the judge may well be persuaded by the AG that the court has no jurisdiction on the matter. In that case, the hearing would be over in three minutes as well. The judge would strike out the leave Application. The related Application ceases and no longer exists.
The question of granting leave, or rejecting it, does not arise when Application was struck out.
Agong’s Discretion
The JR was about the Agong, based on Discretion, looking at and/or not looking at Najib leaving jail and being under house arrest until the sentence was served.
In fact, under Article 145, the AG has no business getting involved in matters which involve Agong’s Discretion. Agong remains separate from matters of public concern and matters of public interest under Article 145.
If Agong’s Discretion was confined by the Constitution, the Perak Case Law 2009 does not exist.
In that case, the Agong would be in the same position as the Governor.
The Federal Court majority opinion, dated 1 Sept 2020 on the Sabah Constitution, cites the 1966 Stephen Kalong Ningkan case law, as the “good law on Governor”.
Agong has discretion beyond discretion, falling back on reserve and residual powers, as hereditary ruler.
The Perak case law 2009 refers.
The Constitution, contrary to public perception, isn’t law.
It has force of law, like Adat, being based on the ultimate political documents setting forth the governing institutions of state.
Hence, it emerges as the supreme law of the land.
Conventions, the working of the Constitution, was even more important than the latter.
Conventions are not law.
No court would hear Application on Convention. — 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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