The Najib cases, by disregarding the rule of law, creates dangerous precedents for future government. All future government would be at risk.
Commentary And Analysis . . . Former Prime Minister Datuk Seri Najib Tun Razak can be seen at his best, probably for the first time since GE14 on 9 May 2018, on witness statement on the 1MDB case.
Najib alleged that MACC (Malaysian Anti Corruption Commission) officers did not show him any documents, during investigations, for verification.
There’s examination-in-chief by defence counsel Tan Sri Shafee Abdullah immediately after each reading of the witness statement.
Prosecution can cross examine Najib, followed by defence lawyer’s reexamination.
Najib
The former Prime Minister faces abuse of power charges and 25 related money laundering charges involving RM2.28b allegedly deposited in AmBank personal account/s between February 2011 and December 2014.
The alleged forgery reported in the link in the article may have been fugitive fund manager Jho Low’s work, based on lawyer Jasmine Loo’s witness statement, and witness testimony during cross examination.
Loo told the court that Jho Low kept her at Najib’s gate while he entered the house alone for purportedly getting Najib’s signature on legal documents she had prepared.
Jho Low only gave the documents one day later either directly or through someone.
In law, there was break in the chain of events. The break does not support the Prosecution’s claim that Najib signed the documents.
In law, those who claim or accuse must prove it.
The Prosecution must prove, through subject matter experts, that Najib signed the documents.
Witness Statement
In law, the Defence need not prove the allegation in the witness statement that Najib’s signature was forged.
Discretionary Powers
Having said that, no court in the world can go into the prerogative and disretionary powers of government and management. They are not law. The court of law was only about law.
Discretion, however, does not exist if abuse of power can be proven. There’s case law on abuse of power. Here, the threshold cannot be crossed on the BFD (Basic Features Doctrine) which, it can be proven, permeates the Constitution. True, there’s lacuna (gap) in local law on BFD. There’s case law in Commonwealth jurisdiction, and more recently in the US, on BFD. These can be cited by the Federal court, sitting as the constitutional court, as Advisory Opinion for declaring local case law.
The Najib cases, by disregarding the BFD, creates dangerous precedents for future government. All future government would be at risk.
No court goes into conspiracy theories. Also, in criminal cases, hearsay and circumstantial evidence cannot be accepted.
Admissible hearsay and circumstantial evidence may be heard, based on special circumstances and the benefit of the doubt, in civil cases where the threshold was lower on the Test of the Burden of Proof viz. balance of probabilities.
In criminal case, the threshold was high, being based on beyond reasonable doubt as the Test of the Burden of Proof.
Since the Prosecution has concluded its case, Najib should submit letter of representation based on his Witness Statement.
Najib should argue in the letter that no prima facie case was made out.
Even star witness lawyer Jasmine Loo, probably based on plea bargaining, was no help. In Malaysia, there’s no plea bargaining. There cannot be obstruction of justice.
Lawyer
Najib needs no law degree for Acting in Person. Law degree does not impart skills for law practice and Court room skills. Law degree, at best, can only be used for teaching law.
The law schools caution students, “it’s bit of a mystery from where lawyers get skills”.
Najib can also represent others, Acting in Person, if he has Client PA (power of attorney).
Najib can file judicial review if the High Court rules against representation based on PA.
There can be no law on anyone talking about law and the rule of law.
Dictator Mahathir
If Najib stands alone in court today, it’s because dictatorial former Prime Minister Tun Mahathir Mohamad — “I have only spoonfuls of blood (Indian) — did away with checks and balances in government.
These were in the form of due diligence, forensic accounting on the money trail from the public treasury and/or government entities, and being party for illegalities in the form of money laundering activities and retention of “secret profits”, both being state revenue.
There was also non-compliance, especially during the initial Mahathir years (1981 until 2003), on the great principles that make up the BN (Barisan Nasional) concept and the Cabinet System viz. decision making by consensus — no voice against — and collective responsibility (all for one, one for all).
BN was also about power sharing through seat-sharing and dividing up government positions. The BN Supreme Council, under Mahathir, seldom met. Umno Supreme Council decisions were passed off as BN Supreme Council decisions. The Indian Diaspora and Chinese Diaspora withdrew support for MIC and MCA.
Incumbency
Even so, BN under Najib had the largest number of seats in Parliament after GE14 in 2018. The numbers were reduced by the flawed imposition of GST. Many people were staring at the “last meal on the table” but still the power of incumbency prevailed.
1MDB didn’t enter the picture on GE14. Many people were not familiar with the 1MDB story and they probably didn’t care about allegations and counter allegations on corruption. In any case, the people think that it’s not their money. 1MDB failed, it has been proven by case study used in management schools, because the DAP and Mahathir openly sabotaged the sovereign wealth fund’s IPO (initial public offer) listing before GE14.
Najib, allegedly in breach of protocol and conventions by the Istana, wasn’t given the 1st right of refusal on forming the government after GE14. He wasn’t invited by Istana for audience with the Agong. He could have offered resignation during the audience. Agong could have advised him on forming government as incumbent.
Again, Mahathir ran prime ministerial dictatorship from 1981 until 2003 and tried pulling the same stunt for two years after GE14 in 2018. He quit abruptly in late February 2020 after the Chinese Diaspora controlled DAP blocked his every move in Cabinet and in government.
The 1MDB hearing continues before Judge Datuk Collin Lawrence Sequerah on Thursday 5 December 2024. — 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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