The ‘jugular vein’ remains political donations in the RM42m SRC and other cases in criminal court!
When push comes to shove, no matter what the number of authorities cited, the court may take the view that it’s safer to grant adjournments especially since the case may see a dramatic turn based on the “jugular vein” in law. More on that shortly. See here . . . See here.
After all, it’s not forever. See here.
Still, former Prime Minister Najib Abdul Razak’s new defence lawyers should find the jugular vein to bring the RM42m SRC International and other cases to closure. Najib can take the cue from the letter of representation sent to Attorney General Tommy Thomas by former Sabah Chief Minister Musa Aman. Musa’s letter was supported by an Affidavit by former Attorney General Gani Patail.
That jugular vein remains political donations based on the 46 bribery and corruption charges that Musa faced in the High Court in Malaya. See here.
Musa claimed in court that the RM380m covered by the 46 charges were political donations. Already, Musa was in the wrong court, but this matter may have been glossed over by all parties in a gross violation of the rule of law. The High Court of Borneo (Sabah and Sarawak) and the High Court of Malaya have equal but separate jurisdiction. Musa should have been charged in the High Court of Borneo since he habitually resides in Sabah. Let’s not go there.
The High Court of Malaya granted Musa DNA (discharge and acquittal) but not because of wrong jurisdiction. It was because the RM380m was considered political donations.
In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law.
Personal Benefits
Musa had been accused of deriving personal benefits from bribery and corruption and thereby allegedly committed abuse of power arising from conflict of interest and criminal breach of trust.
The MACC and Bank Negara did not go after Musa for money laundering. The two Agencies could have frozen, seized and forfeited the RM380m by civil action and left him with some money, a house and a car. Instead, he has been laughing all the way to the bank.
The Inland Revenue Board (IRB) did not freeze the RM380m for the failure to declare the sum, non-payment of taxes due, tax evasion, non-payment of fine and further fine in default.
In the rule of law, there can be no discrimination, and where there are rights, there are remedies; no one is above the law, all are equal under the law.
Since a prima facie case has been made out disingenuously against Najib in the SRC case for example, it may not be safe in law to argue in the Federal Court on jurisdiction related to the Doctrine of Separation of Powers, the prerogative and discretionary powers of government and management, the Cabinet System covered by the Consensus Principle and Collective Responsibility. These areas would confuse and further complicate Najib’s cases. It’s highly unlikely the Federal Court would adopt a wide latitude in interpretation.
It would be risky to indulge in wishful thinking and living on hope that the Federal Court can be persuaded to Rule mistrial in the SRC case, set aside the conviction, and send the case back to the High Court to be heard before a new Judge, or hear the case itself.
Raja Azlan Shah
Despite not admitting anything like Musa did, Najib has been charged like him. See here.
In both cases, Musa and Najib, the Raja Azlan Shah case law on abuse of power can be cited. See here.
According to Raja Azlan Shah, “prerogative and discretionary powers are not unfettered, if abuse can be proven.”
In Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprises Sdn Bhd [1979] 1 MLJ 135, FC at 148, Raja Azlan Shah Acting CJ (Malaya) Ruled that “Unfettered discretion is a contradiction in terms . . . Every legal power must have legal limits, otherwise there is dictatorship.”
“In other words, every discretion cannot be free from legal restraint where it is wrongly exercised, it becomes the duty of the court to intervene.”
“The courts are the only defence of the liberty of the subject against departmental aggression.”
Shining Star In Umno
Najib, described by Mahathir Mohamad in 2009 as “the shining star in Umno”, has often reiterated that he wants to clear his name through the court. Mahathir, who stays in a glasshouse, has been throwing stones at Najib since before 2013.
The kamikaze Approach, while highly commendable for the sacrificial mindset, may have cost Najib the Appeal in the Court of Appeal on the RM42m SRC International case. The superior court saw no reason to interfere with the Ruling in the High Court. It saw no errors in facts and no errors in law.
Both courts were predictable in their Approach as Najib ran the gauntlet on the SRC case. Unfortunately, the court of law isn’t about truth, but only the law. That’s why those in court are first cautioned by their lawyers on what they say and do not say. In law, those who accuse must prove it. The accused doesn’t have to prove innocence.
On its own, the court may allow itself to be literally hijacked by the other side, belabouring in the delusion that the letter of the law, by itself, is law. It isn’t law.
The court in Malaysia can only be compelled, for want of a better term, to uphold the rule of law. The rule of law, based on Judeo-Christian traditions, is about force, compulsion and violence. The focus in the Islamic World, Hindu, Buddhist and China is on “civilisational values”. Civilisational values are not law.
Fighting the SRC charges, as framed, was not only an uphill battle, but a losing one. The Defence was bogged down by the Prosecution’s Narrative instead of determining and dictating the Agenda. The Defence modus operandi in the Federal Court, given the dramatic change in legal team, can’t be the same as that in the two previous courts.
Running The Gauntlet
Senior lawyer Shafee Abdullah, who led the Najib defence in the High Court and Court of Appeal, ran the gauntlet with his Client. The rest is history. Najib realised that the Federal Court can’t be more of the same, it can’t be business as usual. Najib made the strategic move when he changed the Defence team in the SRC case. He may fall back on the same approach for all his other cases in criminal court.
Finding The Jugular Vein
It was Penang-born senior criminal lawyer Rakhbir Singh who first alerted me in Kota Kinabalu on a novel skill that his English Mentor introduced viz. the jugular vein, albeit in law, which if slit will immediately kill the other side because of the uncontrollable haemorrhaging that follows.
Briefly, it was not so long ago that we worked together on a multimillion ringgit defamation suit involving the Editor in Chief of malaysiakini, a Reader and myself, all as Defendants. The suit was struck out by the High Court of Borneo after we found the jugular vein and cited it.
The case was concluded, even before it began, in three days. We had no jugular vein one day, but found it the next day when the other side made a grave strategic error and perhaps inadvertently exposed big weaknesses in a social media post. The other side couldn’t wait to gloat premature victory. The other side even claimed that I had finally apologised after two years.
It was neither Rakhbir nor I who found the jugular vein. It was Sabah human rights advocate Daniel John Jambun who raised the alarm. His observation was confirmed by another malaysiakini reader in Kota Kinabalu.
Ironically, malaysiakini lost a contempt of court case in Putrajaya on the same grounds that we used to win in Kota Kinabalu. The online news portal was fined RM500K by the High Court of Malaya for facilitating contempt of court on the Musa Aman and other cases. It lost on Appeal in the Court of Appeal, the Federal Court and Federal Court Review. The Federal Court had no jurisdiction on the Review. The Review was prepared as an Appeal for yet another bite at the cherry.
SRC Case In 2018
Najib, according to media reports, was charged on Wed 4 July 2018 in the SRC case. The case statistics show that 86 witnesses testified (prosecution, 57; defence, 29) over 76 hearing days between April 2019 and Mar 2020.
High Court Nazlan Ghazali gave an oral verdict on Tues 28 July 2020. The 500-page written judgment included 20 statute and 350 case law. Nazlan has been probed by MACC for having an unexplained RM1m+ sum in his personal account/s.
The Court of Appeal, after 15-day hearing, handed down a 317-page Ruling on Wed 8 Dec last year. It upheld the High Court Ruling. See here. – New Malaysia Herald
About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.
The points expressed in this article are that of the writer and do not necessarily reflect the stand of the New Malaysia Herald.
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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