Prime Minister Mahathir Mohamad, based on the three Mantra — ‘Najib curi duit’, ‘Najib curi duit kerajaan’ and ‘Najib curi duit rakyat’ — should have filed civil action after GE14. It didn’t happen!
Commentary And Analysis . . . Former Prime Minister Tun Mahathir Mohamad, in cahoots with DAP, launched Trial by Media against Prime Minister Datuk Seri Najib Tun Razak. The Trial by Media, based on three Mantra, was repeated daily from before GE14 and was continued even after Najib was jailed unrepresented on 23 August 2022.
Mahathir, based on the three Mantra — “Najib curi duit”, “Najib curi duit kerajaan” and “Najib curi duit rakyat” — should have filed civil action after GE14 for freezing, seizing and forfeiting money laundering assets and “secret profits” as state revenue. It didn’t happen.
Attorney General (AG) Tan Sri Tommy Thomas, in circumventing the Evidence Act 1950 in using the MACC Act 2009, brought criminal case against Najib for the RM42m SRC International political donation case. It was about getting Najib out of the way, permanently if possible, otherwise temporarily for buying time.
Under the MACC Act, court or no court, political donation can be deemed “deriving personal benefit” — read bribery and corruption arising from abuse of power, conflict of interest, and criminal breach of trust — and bribery and corruption deemed political donation. It can happen even in midstream if there’s Malaysia Boleh (can) moment.
Najib
There’s no law on political donation in Malaysia. It falls under the Income Tax Act 1976. (Najib faces an income tax case for US$681m which allegedly entered his personal account/s. He did say, more than once in the media, that it would be stupid if anyone stole money and kept it in Malaysia.)
Interestingly, former Sabah Chief Minister Tan Sri Musa Aman was granted DNA (discharge and acquittal) on 8 June 2020 by the High High Court of Malaya on 46 corruption charges. The judge accepted his claim that the RM380m involved in the charges was political donation.
Malaysia, it can be argued, was plagued by inconsistency in sentencing. In law, Article 8 in Malaysia, there can be no discrimination.
In fact, it was proven in court that the money in the Musa Aman case came in the form of bribery and corruption from timber contracts handed out from Sabah Foundation (SF) concession areas. The High Court did not order that the RM380m be returned. It’s not known whether the Inland Revenue Board (IRB) went after Musa. IRB has never been known for passing up “chances” one way or another.
If the Federal Court Appeal Panel had delayed the SRC case, as requested by defence lawyer Hisyam Teh, Najib’s conviction could have been perfected in law for perfection in law. It did not happen and there was rush for judgment.
The political grapevine whispers that delay would have meant that Najib would win GE15 held in late November 15. The general election saw Datuk Seri Anwar Ibrahim — who has track record in screaming political prosecution, political persecution and conspiracy theories in court — decreed by Agong as prime minister.
The bottomline was that no government in Putrajaya — DAP or no DAP — will probably never take away money from the constitutional Malay, the Umno narrative goes behind closed doors, lest it risks only the Chinese Diaspora being left with money. The Chinese with money, the popular perception holds, can allegedly buy Malay at a loss — whatever it means — and sell them at a profit.
Political Persecution
The criminal cases against Najib, former Prime Minister Tan Sri Muhyiddin Yassin and Others, it can be argued, were politically motivated for form of political prosecution and political persecution. Najib, in jail, remains political prisoner. He should be under house arrest as decreed by Agong on 29 January 2024.
The Trial by Media continues in the wake of the 1MDB case after High Court Judge Datuk Collin Lawrence Sequerah ruled on 30 October, not withstanding hearsay, circumstantial evidence, and conspiracy theories, that substantial evidence has been introduced and prima facie case made out against Najib.
Billions Stolen
The social media has been flooded by graphics claiming that Najib, and others, stole billions from 1MDB.
If so, AG Tan Sri Ahmad Terrirudin Mohd Salleh should file civil action against Najib, if not others as well, and freeze, seize and forfeit the alleged billions in money laundering assets and “secret profits” as state revenue. There’s no further proof necessary under the Definition of money laundering. The proof lies in the money laundering assets.
Under the Definition in international law, read compliant by national law, money laundering was proven by the accumulation of capital far beyond what’s possible within lifetime.
Media
The hysterical media, an unthinking animal which can be manipulated, must be kept in perspective. Najib did introduce legal reforms as evident in the now repealed six emergency ordinances and Internal Security Act (ISA). Also, he brought in GST (goods and services tax) and BRIM (bantuan rakyat satu Malaysia). He tried using 1MDB for political donations and CSR (corporate social responsibilities). The fatal flaw was not calling for RCI (Royal Commission of Inquiry) on 1MDB after Mahathir and DAP initiated Trial by Media against Najib.
Anwar, in taking the cue from Najib, will for starters perhaps work on poverty eradication. Chanting Islam, Islam, Islam would not educate the people, bring in FDI, create jobs, put food on the table, prevent the Chinese Diaspora-controlled DAP from dominating the government and keep China away from Malaysian waters.
Immunity
In summing up Najib, last but not least, the lacuna (gap) in local law on BFD (Basic Features Doctrine) can be addressed. It’s true that the Federal Constitution, Indian Constitution and the US Constitution mentions no BFD — it means immunity and implicit Pardon, among others, for acts in public office by the head of government — but it has been resolved by the Supreme Court of India and the US Supreme Court. The BFD permeates the Indian and US Constitution. Likewise, the Federal Court will discover that the BFD permeates the Federal Constitution as well.
Under the BFD, the head of government/state and Parliament stands indemnified, has immunity, implicit Pardon for acts in public office. The US Supreme Court, in contradiction in terms, ruled that immunity does not cover private criminal acts while in public office. The court added, in disingenuous take, that the threshold cannot be crossed on acts in public office for considering private criminal acts while in public office.
The bottomline is that the High Court, based on the BFD, had no jurisdiction on the RM42m SRC International case on political donation.
Rule Of Law
Hence, it can be proven from the above — readers can ask the AI (artificial intelligence) App for feedback — that Malaysia isn’t always about the rule of the law and that politically motivated cases may be more the norm and that political prosecution for political persecution — read Najib cases — exists in more ways than one.
We can recall Chief Justice (CJ) Tun Richard Malanjum’s Farewell Address in 2019 on the rule of law vs the letter of the law, among others, in resolving issues in conflict between parties in dispute.
Malanjum didn’t mention politically motivated cases, political prosecution and political persecution. He was more concerned about skills for law practice and court room skills.
The CJ virtually conceded and/or implied, in True Confession, that he couldn’t convince the legal fraternity and the court of law and judiciary that the letter of the law, by itself, wasn’t law at all and could not be passed off as the rule of law.
In short, Malaysia may not be about the rule of law — read China — at all, and/or may not always be about the rule of law. It’s perhaps stroke of supreme good fortune if one gets the rule of law in Malaysia.
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 letter of the law. Indeed, the letter of the law by itself, isn’t law at all.
If true, there’s lack of skills for law practice and lack of court room skills.
Know Law
Indeed, given the maxim that “it isn’t possible for anyone to know law”, the law schools themselves wonder from where lawyers get skills.
They argue in perpetuity that it’s “bit of a mystery” from where lawyers get skills. It’s open secret that lawyers look for the law and point it out. The court finds the law and declares it. Opinion — including obiter dictum (remarks) by judge — isn’t law. Again, only the court can declare law.
Indeed, the law schools caution that they don’t impart skills for law practice and court room skills, both being mentoring skills. The law schools remain, at best, about the teaching certicate in the form of LLB which probably has no place in the court of law, except at the insistence of the government, the Legal Profession Act 1976 and related Acts in Sabah and Sarawak, the “Bar” in all three territories in Malaysia, and public perceptions, all requiring admission by the High Court as part of the licensing requirements.
In any case, let’s not go there too much, lest we enter legal minefield if not lost in the twilight zone and trapped there forever for no rhyme or reason.
The government has announced that it’s working on the Common Bar Course (CBC) and Common Bar Examination (CBE).
Hopefully, as the icing on the cake, the CBC/CBE recognises law conversion course as well for non-law degree holders, and that Advocates and Solicitors will have different pathways, as in England and Wales under recent reforms in law education.
In India, the media frequently reminds that half the lawyers — vakil or pleaders — never attended law school. They are armed only with PA (power of attorney) from the Client. It’s proof that law degrees are not about skills for law practice and court room skills.
No Jurisdiction
Meanwhile, the Bar Council, in evading Agong, had filed judicial review against the Pardon’s Board on its 29 January 2024 letter on the halving of Najib’s 12 year jail sentence, and fine reduction, on the RM42m SRC International case on political donation, deemed by the court as “deriving personal benefits”. The Bar Council should have known that it has no locus standi (legal standing) on the matter. It was nonjusticiable.
The Court has no jurisdiction on what isn’t law. The court of law remains only about law.
Agong’s Decree, based on Discretion, isn’t law.
The judge should just say no jurisdiction. There’s no need for explanation.
Again, the court was about law.
Although Discretion isn’t law, it does not exist if abuse of power can be proven. There’s case law on abuse of power.
It’s unthinkable that Agong commits abuse of power.
In the US, for example, Executive Order can be challenged in the Supreme Court. Generally, the court will not set aside Executive Order.
The High Court was checkmate against the Bar.
There must be remission.
Six years under halving. Two years off under remission. Balance four years. Najib serves two years. He should have been released on 23 Aug this year. There’s no need for house arrest unless he’s deemed as political prisoner. Again, Najib’s conviction wasn’t perfected in law for perfection in law, on 23 August 2022, when he was jailed unrepresented. — NMH
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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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