The proposed unrelated law on house arrest may have begun as ‘form of rotten politics’ with DAP denying that the government was allegedly hiding Agong’s Decree on house arrest for former Prime Minister Najib Tun Razak as political detainee!
Commentary and Analysis . . . Former Prime Minister Datuk Seri Najib Tun Razak, in the latest development on imminent house arrest, apologised for the 1MDB Scandal on his watch but did not accept blame.
The court can determine where Najib was deceived and where fugitive fund manager Jho Low ran his own show, based on name dropping, without the Prime Minister being any wiser.
Najib was misled into thinking that US$681m taken from 1MDB by Jho Low and entered in his personal account/s with AmBank was from the Saudi King as per earlier promises. Earlier, the Saudi Finance Ministry wired US$200m political donation. Finance Ministry Malaysia received the money.
The elephant in the room: Agong and sultan’s Discretion isn’t restricted by the Constitution.
That was established by the 2009 Perak case law.
Agong’s and sultan’s Discretion was further upheld on 1 September 2020 by the Federal Court majority opinion on the Sabah Constitution.
The court also ruled that Governor wasn’t like Agong and sultan. Governor’s discretion was restricted by the Constitution. The good law for Governor was the 1966 Stephen Kalong Ningkan case in Sarawak.
Agong’s and sultan’s Decree, based on Discretion, isn’t justiciable.
Discretion isn’t law.
The court of law was only about law.
Having said that, the facts show that the Director-General (DG) of the Prison’s Dept and the Home Minister did not act when former Prime Minister Datuk Seri Najib Tun Razak was jailed, unrepresented, on 23 August 2022. They went along with the alleged political detention of Najib, as political prisoner, under arbitrary detention. The alleged abuse of power can be proven.
There’s case law from Raja Azlan Shah and, not so long ago, from Asian Arbitration when the Federal Court found that Attorney General (AG) Tan Sri Tommy Thomas had committed abuse of power under Article 145.
House Arrest For Political Detainee
Najib, having been jailed unrepresented, merits house arrest as political detainee. The conviction, based on being unrepresented alone, wasn’t perfected in law for perfection in law.
Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli stressed, but not in so many words, that Najib’s conviction was signed by the Federal Court Appeal Panel. It cannot be said that the mere act of signing by five judges somehow resolved “imperfections” on the conviction. It’s true that conviction must be signed but only under normal circumstances.
The court records show that Chief Justice Tun Maimun Tuan Mat disregarded Najib’s lawyer Hisyam Teh who filed discharge. She didn’t record the discharge so that Najib appears, albeit on paper, that he was represented when jailed. The CJ, if unrepentant, should probably have been brought before the Judicial Ethics Committee (JEC). In that case, the Agong would come into the picture. Alternatively, the CJ can resign the post, and thereby uphold the dignity of the judiciary.
In any case, Najib had no Submission during the Federal Court Appeal stage of the RM42m SRC International case. The CJ relied on the rejected Submission made in the Court of Appeal (CoA). The Prosecution had Submission, both written and oral, in the Federal Court.
The CJ, the court records show, ordered that lawyer Hisyam sit down and listen as Prosecution did u-turn and alleged that Najib and the defence team were engaged in conspiracy against the court. There was no proof. The criminal court does not go into conspiracy theories, hearsay and circumstantial evidence.
House Arrest
Najib’s family, as advised by Judge Datuk Hamid Sultan Abu Backer, should have filed habeas corpus application in the High Court and/or filed Petition before the Conference of Rulers on house arrest and multiplicity of issues.
Instead, Najib filed Appeal at the CoA on the government allegedly hiding Agong’s Decree on house arrest.
The CoA, redundant on Dec 5 given previous trends, would probably trot out the usual line that they saw no reason for interferring with the Judicial Review ruling by the High Court. We stand corrected.
Najib, in that case, has no choice but file Appeal at the Federal Court through the High Court. It would be interesting if the Apex court rules against Najib.
Then, the Federal Court Review comes in for any number of times.
Redundant
The DAP-dominated unity government may be planning the proposed law on house arrest, as form of rotten politics, in view of all the above developments. The “redundant” law, if it happens based on special circumstances rendered academic, can only exclude Najib. It cannot however exclude Agong’s Decree on house arrest.
The Perak case law 2009 explained that sultan’s Discretion, unlike the Governor’s, wasn’t restricted by the Constitution even if it was. Sultan, being hereditary ruler, has residual and reserve powers and hence Discretion beyond Discretion.
Criminal
The superior court isn’t about merits. Many people and the media keep saying that Najib was a criminal. That isn’t the issue in the superior courts. It’s about procedures, due process, and the rule of law.
Under the rule of law, the basis of the Constitution, there can be no discrimination. Article 8 refers.
The manner in which the accused was convicted comes first. Conviction can only follow if it was perfected in law for perfection in law. There was non-compliance on procedures, due process, and the rule of law. As Judge Sebli discovered, there were many transgressions against Najib. That’s why he ruled DNA and saw retrial as pointless. He did not rule DNAA.
Judge Sebli did not perfect the DNA Ruling in the form of Order.
Judge Sebli was the only ruling. The other four judges found no jurisdiction, as Defence argued Review as Appeal for another bite at the cherry, and struck out the case.
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 greater emphasis on the spirit of the law trumps the letter of the law. The letter of the law, read by itself, isn’t law.
Of course, the court was about closure. Closure comes when litigation ends. A case once closed will not be reopened unless retrial was ordered.
Law Power Of Language
The law schools, falling back on jurisprudence and constitutional law, caution that no one can fathom law.
Law, ultimately, was about the power of language, showing proof of wide reading, ability for citing, ability for thinking like lawyer, and ability for fathoming the thinking of the judge and the court.
It can be stressed, again and again, that the proposed law on house arrest may be form of rotten politics which began with the government allegedly hiding Agong’s Decree on house arrest for Najib. It’s “method in madness” public relations exercise by the unity government.
The media misleads by mentioning Najib in the same breath as the proposed unrelated law for house arrest.
House Arrest is Government’s Discretion
House arrest for others needs no law as it’s based on the government exercising Discretion if there are special circumstances. No law on house arrest can override the rule of law, the basis of the Constitution.
If true that the proposed house arrest law was about the former Prime Minister escaping jail, how would the new law be worded? Something, for want of better phrase, does not read right here. Many people think that the law was being made for just one person.
There was no need for special circumstances on Najib’s house arrest. If Agong feels that there has been miscarriage of justice, there has been miscarriage of justice. Agong need not explain anything. He needs no advice from the Prime Minister on miscarriage of justice.
Halving The Sentence
Najib should seek further and better particulars on the halving of the 12 year jail sentence. If there’s no remission, he should reject the halving. Fine reduction can be accepted.
It’s not clear what happened here.
Agong, based on discretion beyond discretion, decreed under the circumstances that the 12 year jail sentence be halved, the RM210m fine stand reduced at RM50m and that Najib be placed under house arrest. It was clear that Najib was political prisoner on 23 August 2022 when he was allegedly detained arbitrarily by the court, and if so, it acted with impunity i.e. not in compliance with the rule of law. It clearly fell back on the letter of the law, by itself, as law. It was not law at all.
Here, no one mentions that the halving merits remission, and that Najib should have gone home on 23 August this year. In that case, the Agong’s Decree on house arrest would be rendered redundant unless Najib was kept, for no rhyme or reason, as political prisoner in his own house. Constitutional Law Professor Shad Faruqi, in op-ed, noted that the Pardon’s Board letter dated 29 January 2024 mentioned no remission on the halving. In law, Article 8 in Malaysia, there can be no discrimination. The omission in the Pardon’s Board letter cannot be read as “no remission”. The High Court can complete the Pardon’s Board letter.
Rushed Judgement
There may have been rush for judgment in the Federal Court on 23 August 2022 because of GE15 in late November 2022.
If the Federal Court had delayed jailing for perfecting the conviction in law for perfection in law, Najib would have stood in GE15 and won. That would have thrown spanner in the works for dictatorial former Prime Minister Tun Mahathir Mohamad who wanted him out of the way, permanently if possible, otherwise temporarily, for buying time. In any case, Mahathir and party were completely rejected in their entirety in GE15. All lost their deposit.
Najib, being jailed unrepresented on 23 August 2022, wasn’t the only transgression. Judge Sebli found many transgressions.
We can cite the many transgressions against Najib but won’t go into them here. They can be found in the many related internal links.
We can recall Chief Justice (CJ) Tun Richard Malanjum’s Farewell Address in 2019. It was on the rule of law. Malanjum more than implied that Malaysia wasn’t always about the rule of law. He expressed frustration — my words — with the legal fraternity and the court belabouring in the delusion that the letter of the law, by itself, was the rule of law. It isn’t law at all.
The court of law was only about the rule of law.
It isn’t about ethics, moral values, theology, civilisational values, guidance which is mandatory, sin, God, righteousness, justice or truth.
Must Come With Clean Hands
He who comes to equity, the maxim holds, must come with clean hands.
The Federal Court Appeal Panel allegedly did not have clean hands on 23 August 2022. Najib wasn’t given the right of reply even if he was given the right on paper.
Likewise, the CoA glossed over the fact that there were errors in law and errors in facts in the High Court. Here, it’s also about the many transgressions against Najib. The transgressions continued in the CoA when evidence was not allowed against High Court Judge Datuk Mohd Nazlan who was caught in three conflict of interest situations. The MACC Report refers.
It’s in the public domain that CJ Tun Maimun Tuan Mat, like latter day sultan, claimed discretion beyond discretion on the MACC Report. It was not in compliance with court procedures. The CJ isn’t hereditary position. He or she does not have residual and reserve powers like sultan who isn’t restricted by the Discretion in the Constitution. The Perak case law 2009 was about discretion beyond discretion of sultan. — NMH
Related Internal Link . . .
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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