Prosecution did not go beyond unproven belief that former Prime Minister Najib Tun Razak gave Blessing — legal minefield — for ‘wrongdoing’ at 1MDB!
Commentary and Analysis . . . High Court Judge Datuk Colin Lawrence Sequerah may be spared ruling on the RM2.3b 1MDB case, six years in the running, but there’s big IF here. It’s not clear whether former Prime Minister Datuk Seri Najib Tun Razak will file letter of representation, with Attorney General Tan Sri Ahmad Terrirudin Mohd Salleh, based on the Prosecution’s own words on the “Blessing” Theory and rebuttal by the Defence left unchallenged and/or deemed failure and exercise in futility.
Najib, as reported by the media, was on trial for 25 charges in total – four for abuse of power that allegedly brought him the financial benefit to the tune of RM2.28b; and 21 for money laundering involving the same amount of money.
The four counts of power abuse were framed under Section 23(1) of the Malaysian Anti-Corruption Commission Act (MACC) 2009 which provides for imprisonment of up to 20 years and a fine of up to five times the amount or gratification, or RM10,000, whichever was higher, upon conviction.
For the 21 charges of money laundering, Najib was charged under Section 4(1)(a) of the Anti-Money Laundering, Anti-Terrorism Financing, and Proceeds of Unlawful Activities Act (AMLATFA), which carries maximum fine of RM5m and imprisonment for maximum five years, or both, upon conviction.
Wrongdoing At 1MDB
The Prosecution did not go beyond the unproven belief, implied when not stated, that Najib gave Blessing — legal minefield — for “wrongdoing” at 1MDB. Again, the 1MDB case merits withdrawal via letter of representation based on the Prosecution’s Submission and rebuttal by the Defence left unchallenged and/or deemed failure and exercise in futility.
DPP Ahmad Akram Gharib, in disingenous take on 21 August, fell back on sec. 23(1) of the MACC Act 2009 which apparently does not state that the essential ingredient must be proven. The Prosecution, while it did not say “interest”, did state “indirect interest” in the charges under Roman letters I, II, III and IV. The Prosecution indicated later that it would submit, when it’s turn comes, on the issue in conflict between the parties in dispute.
There are further and better particulars on the Roman letters in this link on the RM2.3b 1MDB case …
Charge Sheet
The relevant extract from the above link, based on the media taking the cue from the charge sheet, follows:
Najib’s first charge states — That you (Najib), between 24th February 2011 and 14th June 2011, at AmIslamic Bank Berhad, Cawangan Jalan Raja Chulan, No. 55, Jalan Raja Chulan, Kuala Lumpur, in the Federal Territory of Kuala Lumpur, as an officer of a public body, to wit, Prime Minister and Minister of Finance of Malaysia and the Chairman of the Advisory Board of 1MDB, did use your position for a gratification for yourself totalling RM60,629,839.43, by taking the following action to wit:
I. On 1st April 2009, at the Cabinet Meeting Room, Level 4, Prime Minister’s Office, Federal Government Administrative Centre, in the Federal Territory of Putrajaya, by way of a Memorandum of the Ministry of Finance No. 216/2639/2009, you did obtain the consent of the Cabinet for the provision of a guarantee by the Government of Malaysia to Terengganu Investment Authority Berhad (TIA) to enable TIA to obtain domestic and foreign market loans of up to RM5 billion by way of Islamic Medium Term Notes Programme;
II. On 29th July 2009, at the Cabinet Meeting Room, Level 4, Prime Minister’s Office, Federal Government Administrative Centre, in the Federal Territory of Putrajaya, after being appointed as Prime Minister of Malaysia on 3rd April 2009, you did approve the acquisition of TIA by the Government of Malaysia and further caused TIA’s name to be changed to 1MDB, a company in which you have a direct interest;
III. On 26th September 2009, you directed the Board of Directors of 1MDB which was having a Special Meeting at The Royale Bintang Damansara, Petaling Jaya, in the state of Selangor, to pass a resolution authorising 1MDB to participate in a joint venture with PetroSaudi International Limited by investing in the capital of 1MDB PetroSaudi Limited by subscribing for 1,000,000,000 (1 billion) ordinary shares in 1MDB PetroSaudi Limited at US$1.00 each for a total consideration of US$1 Billion (or equivalent in RM); and
IV. On 16th May 2011, at 1MDB Office, Level 8, Menara IMC, No. 8, Jalan Sultan Ismail, in the Federal Territory of Kuala Lumpur, did cause the Board of Directors of 1MDB to pass a Circular Resolution authorising an investment of an additional RM1 billion (or equivalent in US$) under the Murabaha Financing Agreement dated 31st March 2010 with 1MDB PetroSaudi Limited.
Blessing
Najib’s chief counsel Tan Sri Muhammad Shafee Abdullah argued that his client’s four charges of abuse of power, stemming from the Prosecution’s Blessing Theory, did not specify the exact attending interests that motivated Najib’s decisions. “The actual ‘direct interest’ underlying those decisions has been left for this court and the accused to wonder about,” submitted Shafee.
“Here, the prosecution, despite alluding to the existence of ‘direct interest’ in Najib’s decisions in all the four charges, has failed to specify where the purported direct interest lies,” he said on 20 August.
The lawyer noted the Prosecution’s submission that Najib’s three official positions — prime minister, finance minister and chairman of 1MDB advisory board — were allegedly abused simultaneously for multiple offences. “The issue became more complicated.”
In written submission, the defence has table of “possible permutations” where Najib’s interest could have been in the various companies linked with the case.
“Due to the absence of a specified interest and the multitude of potential interests to choose from, Your Lordship would be an unwilling participant in the prosecution’s game if Your Lordship were to read into and identify an interest that the prosecution has clearly not indicated,” he said.
Muhammad Shafee further submitted that given the lack of details, the four predicate charges on power abuse were “defective, improper, ambiguous and misleading”.
“Most of all, highly prejudicial, causing the accused embarrassment in preparation for the defence,” said Shafee.
Basic Features Doctrine
Briefly, the Basic Features Doctrine (BFD) permeating the Constitution comes in as seen in this internal link . . .
The salient points in the above internal link reads:
“One great BFD principle, as evident from case law, reads that ‘government and Parliament stand indemnified, has immunity, implicit Pardon’, for ‘acts in office’.”
“Interestingly, it’s telling that the court of law in Malaysia never visited the jurisdictional and constitutional issues involving the BFD on the Najib cases. If the High Court had not rushed into judgment on the RM42m SRC International case, there are no prizes for guessing. The other cases, against former Prime Minister Najib Tun Razak, would not have seen the light of day.”
“The threshhold on BFD could not be crossed. It therefore follows that the various issues raised by the Najib cases, as ventilated in the court of public opinion, do not exist.”
Umno Defends Najib
There’s Defence of Najib from Umno here during the recently-concluded Umno General Assembly.
MACC Act 2009
It must be conceded that, unlike the Evidence Act 1950, it was clear from previous cases in court that the MACC Act 2009 was interpreted by the court as being about “deriving personal benefit based on bribery and corruption” arising from abuse of power, conflict of interest and criminal breach of trust”, and this may include being party for illegalities in the form of money laundering activities and retention of “secret profits”. The proof, in law, on money laundering are the assets themselves based on forensic accounting on the money trail from the public treasury.
Money laundering assets and “secret profits” can be frozen by civil action, seized and forfeited as state revenue. Criminal case will be instituted if the civil action was challenged.
The principle in law, in money laundering, was accumulating capital far in excess of what can be legitimately accumulated during lifetime.
In out of settlement cases, as seen at the High Court of Malaya and the US DoJ (Dept of Justice) on 1MDB-related cases, the errant party can surrender 40 per cent of the money laundering assets without prejudice in civil action. The authorities can still levy taxes on the 60 per cent kept by the errant party.
Trial By Media
In retrospect, it was Trial by Media openly initiated by dictatorial former Prime Minister Tun Mahathir Mohamad in cahoots with the Opposition after GE13 in 2013, that landed Najib in court and in jail, unrepresented, on 23 August 2022. It can be seen here, even in blinkers, that conviction wasn’t perfected in law for perfection in law.
In the rule of law, the basis of the Constitution, the manner in which the accused was convicted comes first. The conviction follows if there has been compliance with procedures, due process — read representation — and greater emphasis on the spirit of the law, albeit read with the letter of the law. In the rule of law, the greater emphasis on the spirit of the law trumps the letter of the law. The letter of the law, by itself, isn’t law.
It can be recalled that Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli ruled DNA , early last year, for Najib on the RM42m SRC International case, related with 1MDB.
There may have been forum shopping for judges, from among Mahathir appointees, for the Najib cases. In any case, let’s not go there lest we risk consequences. We stand corrected. — 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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