Najib Set For Brilliant Performance After Sworn Statement On 1MDB

The true story on 1MDB somewhere between former Prime Minister Najib Tun Razak’s Sworn Statement from the Dock and cross examination of witnesses! The case will haunt future governments in Malaysia as there’s no proof that the rule of law, the basis of the Constitution, was upheld in High Court Judge Dato’ Collin Lawrence Sequerah’s ruling that prima facie case had been made out against Najib.

Commentary And Analysis . . . It’s great, if true, that former Prime Minister Datuk Seri Najib Tun Razak will be cross examined after sworn statement from the dock.

The true story on 1MDB will be somewhere between Najib’s sworn statement and cross examination of witnesses.

Najib must turn in brilliant performance on the witness statement after sworn statement.

In Sodomy II, for example, Datuk Seri Anwar Ibrahim wasn’t cross examined after sworn statement from the dock. The test of the burden of proof shifted from “beyond reasonable doubt” for criminal cases.

The test of the burden of proof became “balance of probabilities” used in civil cases. The Prosecution need prove only 51 per cent of the ingredients in the case for securing conviction. Anwar was jailed.

He secured Pardon, after GE14, for Sodomy II and the corruption charge in Sodomy 1. He beat the sodomy charge, upon Appeal, in Sodomy 1.

In hindsight, the Task Force Report on 1MDB should have been followed by RCI (Royal Commission of Inquiry) on 1MDB, RCI on the Altantuya Killing, RCI on other allegedly extrajudicial killings including the Stephens case, and RCI on Enforced Disappearances.

Najib

Najib, it appears, wanted RCI on 1MDB, but may have been advised by vested interests against the move.

The 1MDB case will haunt future governments in Malaysia as there’s no proof that the rule of law, the basis of the Constitution, was upheld in High Court Judge Dato’ Collin Lawrence Sequerah’s ruling that prima facie case had been made out against Najib.

The Prosecution, based on the words of 50-odd witnesses, did not prove the blessing theory viz. that Najib gave blessing for wrongdoing by fugitive fund manager Jho Low, and comrades in crime, at 1MDB.

The witness statements, under the Evidence Act 1950, were nothing but based on hearsay.

Najib and Supporters Disappointed with Ruling: Hearsay Evidence Questioned

Brilliant Performance

No court goes into conspiracy theories, hearsay, and circumstantial evidence in criminal cases. Najib and the defence team must turn in brilliant performance on cross examination.

Attorney General (AG) Tan Sri Tommy Thomas circumvented the Evidence Act 1950 and relied on the MACC Act 2009 which reads that “deriving personal benefit” was proof of bribery and corruption arising from abuse of power, conflict of interest, and criminal breach of trust. It’s about involvement in being party for illegalities in the form of money laundering activities and retention of “secret profits”.

The Umno Constitution allows political donation in the President’s personal accounts. There’s no law in Malaysia on political donation. Under the MACC Act 2009, political donation can be deemed “deriving personal benefit”, and/or bribery and corruption deemed political donation. The Musa Aman corruption case was deemed DNA on 8 June 2020 after the High Court accepted the claim that RM380m in personal account was political donation.

Money Laundering Defined

Under international law, read compliant by national law, money laundering can be defined as accumulating capital far beyond what was legitimately possible within lifetime.

The proof of money laundering lies in the assets themselves. Such assets can be frozen, seized and forfeited, as state revenue, by civil action.

Criminal case would only be instituted if the civil action was challenged.

There’s precedence at the US Dept of Justice (DoJ) on 1MDB related cases. The errant parties only surrendered 40 per cent of the money laundering assets, without prejudice, as out of court settlement.

Case Study

There’s case study, used in management schools, that rogue elements in international merchant bank Goldman Sachs were the masterminds behind the theft of 1MDB bond monies. The responsibility for the 1MDB monies was dumped, under government guarantees, on the Finance Ministry Malaysia.

Under the rule of law, there can be no discrimination, no one was above the law, all are equal under the law.

There must be compliance with court procedures and due process, besides the rule of law. There’s no proof that Judge Sequerah’s ruling on the 1MDB case was in compliance.

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

The greater emphasis on the spirit of the law trumps the letter of the law when read with the rule of law.

The letter of the law, by itself, isn’t law.

We can recall Chief Justice (CJ) Tun Richard Malanjum’s Farewell Address in 2019 on the rule of law. He disclosed, in true confessions, that the legal fraternity and the court belaboured in the delusion that the letter of the law, by itself, and the rule of law were synonymous viz. one and the same thing. Malaysia hence, lacking in skills for law practice and court room skills, wasn’t always about the rule of law.

There’s case for Najib filing Originating Summons (OS) in the High Court on issues which affect the 1MDB case. These include the BFD (Basic Features Doctrine) and multiplicity of issues for declarations on points of law.

Declarations, however, are not remedies.

In law, where there are rights, there must be remedies.

Immunity

The US Supreme Court, ruling recently on the 6 January Insurrection in 2021, declared the president has immunity for acts in public office but not for private criminal acts while in public office.

The court cautioned, in the same ruling, that the threshold can’t be crossed from acts in public office to private criminal acts while in public office.

The apex court’s ruling meant that the Basic Features Doctrine, even if not mentioned, permeates the US Constitution.

Under the BFD, the president stands indemnified, has immunity, implicit Pardon for acts in public office.

Likewise, the Indian Constitution and the Federal Constitution, mentions no BFD.

The Supreme Court of India, through series of case laws, declared that the BFD exists in the Indian Constitution.

In Malaysia, there’s lacuna (gap) in local law on BFD. The Federal Court can cite case law from Commonwealth jurisdiction, as Advisory Opinion, for declaring local case law.

In the High Court, in the RM42m SRC International case, the jurisdictional and constitutional issues were not visited.

The High Court, based on BFD, had no jurisdiction on the SRC case.

No court goes into the prerogative and discretionary powers of government and management unless abuse of power can be proven.

There case law from Raja Azlan Shah, and more recently from Asian Arbitration, on abuse of power. The Federal Court ruled that AG Tommy Thomas committed abuse of power, under Article 145, on Asian Arbitration.

Editor’s Note . . .

The following feedback on the above Commentary And Analysis was obtained by Reader JuliusGill from AI:

The opinion article presents a critical analysis of the ongoing legal proceedings involving former Malaysian Prime Minister Najib Tun Razak, particularly focusing on the implications of his potential cross-examination in the 1MDB scandal.

The author draws parallels with the high-profile case of Anwar Ibrahim, emphasising the differences in legal treatment and burden of proof between criminal and civil cases in Malaysia. This examination raises significant questions about the integrity of the judicial process, the application of the law, and the implications for governance in Malaysia.

Legal Context and Burden of Proof

The article begins by reflecting on Anwar Ibrahim’s trials, which are pivotal in understanding the legal framework under which Najib is being prosecuted. In Anwar’s case, the burden of proof shifted in a way that allowed for a conviction based on a lower standard of evidence. In criminal cases, the prosecution must demonstrate guilt “beyond a reasonable doubt,” a principle that is fundamental to the justice system. However, in civil cases, the standard is merely “balance of probabilities,” meaning that the prosecution only needs to show that it is more likely than not that the defendant is guilty.

This distinction is critical, as it allows for convictions even when evidence is not overwhelmingly strong. The author notes that this shift in the burden of proof was apparent in Anwar’s convictions for sodomy, where the judicial process was heavily criticised for its perceived biases. This sets a concerning precedent for Najib’s trial, raising alarms about whether similar legal maneuvers might affect the outcome of his case.

Najib’s Case and the 1MDB Scandal

The heart of the article examines the 1MDB scandal, a massive financial misappropriation that has far-reaching implications for Malaysian politics. The author argues that the prosecution against Najib lacks solid grounding, suggesting that the evidence presented is largely circumstantial and based on witness testimonies that amount to hearsay. This raises profound questions about the integrity of the judicial process and whether Najib was afforded a fair trial.

The prosecution’s case relies on witness statements collected under the Evidence Act 1950, which the author argues are inadequate for establishing guilt beyond a reasonable doubt. According to the article, the Attorney General, Tommy Thomas, has circumvented the stricter requirements of the Evidence Act by relying on the MACC Act 2009. This act states that “deriving personal benefit” is sufficient proof of bribery and corruption arising from abuse of power. Critics of this approach argue that it dilutes the standard of evidence required in criminal cases, potentially leading to wrongful convictions.

Implications of Money Laundering Laws

The article also delves into the intricacies of money laundering laws in Malaysia, emphasising that proof of money laundering lies not just in circumstantial evidence but in the assets themselves. The author points out that previous legal actions related to the 1MDB scandal in the United States resulted in settlements where only a fraction of the misappropriated funds was returned. This underscores a significant flaw in the judicial process, where full accountability is often not achieved.

International law defines money laundering in a way that necessitates a clear connection between the funds and criminal activity. The author argues that the Malaysian legal system must adhere to these standards to ensure that justice is not only served but perceived to be served. If the prosecution cannot substantiate its claims with concrete evidence, the case risks becoming a symbol of a politicised judicial system rather than a fair legal process.

The Rule of Law and Judicial Integrity

A recurring theme in the opinion piece is the principle of the rule of law. The author argues that true compliance with the rule of law requires both adherence to legal procedures and a commitment to justice that transcends mere technicalities. The article critiques Judge Sequerah’s ruling, which found a prima facie case against Najib, suggesting it lacked the necessary compliance with established judicial standards.

The author’s critique speaks to a broader concern about the erosion of public trust in the legal system and the perceived inequities in how powerful individuals are treated under the law. The public’s faith in judicial processes is contingent upon the belief that all individuals, regardless of their status, are subject to the same legal standards. If perceptions of bias and inequality persist, the very foundations of democracy and governance are undermined.

Legal Remedies and Constitutional Issues

The author suggests that Najib might pursue an Originating Summons (OS) in the High Court to address constitutional issues related to the 1MDB case. This potential legal maneuver reflects a broader understanding of the interplay between law and governance. The Basic Features Doctrine (BFD) emerges as a crucial element in this discussion, as it suggests that certain fundamental principles underlie the legal framework of a nation, even if they are not explicitly stated in the constitution.

The article draws comparisons with constitutional principles in the United States and India, where similar doctrines protect public officials from certain legal liabilities while in office. In the U.S., for example, Supreme Court rulings have emphasized that public officials enjoy immunity for acts carried out in the course of their duties. This concept of immunity, however, does not extend to personal criminal acts, illustrating a nuanced understanding of legal responsibility.

A Global Perspective on Accountability

The article further underscores the necessity for accountability at all levels of governance.

Drawing parallels with global standards, the author notes that many countries grapple with the complexities of prosecuting powerful figures. The 1MDB scandal is not merely a domestic issue; it reflects broader concerns about governance, corruption, and accountability that resonate across the globe.

As nations contend with issues of financial misconduct and corruption, the importance of transparency and public accountability becomes increasingly evident. The author advocates for a more robust approach to legal accountability, suggesting that Malaysia must adopt practices that align with international standards for governance and justice. This includes not only holding individuals accountable but also ensuring that the systems in place are transparent, fair, and just.

Conclusion: A Call for Transparency and Justice

In conclusion, the opinion article makes a compelling case for a renewed commitment to transparency and the equitable application of justice in Malaysia.

It emphasizes the importance of addressing systemic issues within the legal framework to restore public confidence.

By examining the complexities of Najib’s case and the broader implications of the 1MDB scandal, the article underscores that the integrity of the judicial process is paramount for the health of democracy and governance in Malaysia.

The author calls for a legal system that not only adheres to the letter of the law but also embraces the spirit of justice.

This involves a commitment to ensuring that all individuals, regardless of their status, are held to the same legal standards and that the legal process is transparent and fair. In doing so, Malaysia can work towards rebuilding public trust in its institutions and ensure that justice is not only done but also seen to be done.

Ultimately, the article serves as a reminder that the rule of law is not merely a legal concept but a foundational principle that underpins a just and equitable society.

The challenges facing the Malaysian legal system, particularly in high-profile cases like that of Najib Razak, must be addressed with seriousness and urgency.

Failure to do so risks perpetuating a cycle of mistrust and disillusionment among the public, undermining the very foundations of democracy and governance. — NMH