BN (Barisan Nasional) and PH (Pakatan Harapan) remain strange bedfellows, the latter involved in Trial by Media which put former Prime Minister Najib Tun Razak in jail after Debate with Anwar Ibrahim!
Commentary And Analysis . . . Former Prime Minister Datuk Seri Najib Tun Razak, in the wake of DAP MP Ramkarpal Singh’s unsavoury remarks on the former winning imminent freedom, has rightly challenged the latter for public Debate on the RM42m SRC International case. The issue was whether Najib deserves full Pardon.
Agong’s Decree for Freedom based on Discretion and Agong’s Decree for Pardon based on Discretion aren’t one and the same. Prime Minister Datuk Seri Anwar Ibrahim has disclosed that Agong halved Najib’s jail sentence and reduced the fine based on strong mitigating circumstances including the sterling record of public service for many decades.
Former DAP MP Tony Pua faces sedition charges on allegedly mocking Agong for allowing 50 per cent reduction in Najib’s 12 year jail sentence based on the DNA (discharge and acquittal) Ruling by Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli. The RM210m fine was also lowered. It now stands at RM50m. If there’s default on the fine, an additional one year jail will run concurrently with the main six years sentence.
BN (Barisan Nasional) and PH (Pakatan Harapan) remain strange bedfellows, the latter involved in Trial by Media which put Najib in jail after Debate with Datuk Seri Anwar Ibrahim before the latter became Prime Minister.
Najib, being former Prime Minister, should in fact push for Agong’s Decree for Freedom ala Judge Sebli and related reasons, based on Discretion, and not Pardon per se. The RM42m SRC International case wasn’t perfected in law for perfection in law. Najib was jailed, unrepresented, on 23 August 2022. Pardon implies conviction. That comes under the jurisdiction of the Pardon’s Board. It changes the Equation and dynamics as there are strict timelines for freedom via Pardon. Agong has no Discretion on the matter although it — i.e. Pardon — would still involve Decree.
Ramkarpal ruffled the Najib feathers the wrong way when he reminded PH (Pakatan Harapan) members that nine judges in three courts had the same story on the RM42m SRC International case. It’s about one “errant” judge in the High Court, three judges in the Court of Appeal (CoA), and five judges in the Federal Court having the same story.
A case in the superior court was no longer about merits but procedures. A case once closed will never be re-opened unless there’s retrial following declaration of mistrial.
The RM42m SRC International case in Federal Court Review wasn’t in criminal court.
Ramkarpal conveniently forgot, perhaps for politically expedient reasons, that Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli ruled DNA (discharge and acquittal) for Najib on 31 March last year. Judge Sebli, in ruling out retrial as pointless, discovered so many transgressions. There was no majority ruling. The majority struck out the judicial review on the grounds that the court had no jurisdiction when Review was argued as Appeal. Again, there was only one Ruling i.e. by Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli. Ramkarpal dismissed Debate with Najib on the grounds that there was 4 vs 1 ruling in the Federal Court Review stage. There was no 4 vs 1 ruling. Dismissal of case isn’t ruling.
Suspended and retired Court of Appeal Judge Hamid Sultan Abu Backer, likewise, expressed dismay over the manner in which Najib was treated by the court.
Najib
It was the three Mantra, chanted by dictatorial former Prime Minister Tun Mahathir Mohamad daily from even before GE14 on 9 May 2018 that persuaded the court that Najib should be in jail. The court obliged as otherwise Mahathir would be declared Great Liar for all eternity. The three Mantra . . . Najib curi duit, Najib curi duit kerajaan, Najib curi duit rakyat (Najib stole money, Najib stole government money, Najib stole the people’s money).
Najib, between Mantra and Trial by Media allegedly manipulated by Mahathir who has deep pockets, had no chance. It was no doubt resolved in and outside court, via allegedly forum shopping for judge, that the 6th Prime Minister and son of the 2nd Prime Minister — Tun Razak — should be jailed by hook or by crook.
Agong knows that 1MDB failed when the IPO failed in the wake of the Trial by Media. Then, there was “too big to fail” Goldman Sachs which stagemanaged the 1MDB Phenomenon. Najib became scapegoat.
There’s complete list of Mahathir’s sins of commission and omission based on his own words. It proves that Mahathir doesn’t hesitate on throwing stones although staying in glasshouse.
Debate
The proposed Debate would discover that the RM42m SRC International case should have in fact been by civil action.
Instead, Attorney General (AG) Tan Sri Tommy Thomas — also from Kerala in southwest India, like Mahathir — instituted criminal suit after discovering that “the money was not with Najib”. Civil action would have kept Najib out of jail. However, there was nothing that could be frozen, seized and forfeited from Najib.
The High Court had the list of nine people who received the RM42m but not as beneficiaries. It was for corporate social responsibility (CSR) activities so that the people became direct beneficiaries.
Judge Datuk Mohd Nazlan Mohd Ghazali, it emerged in the superior court, did not disclose that he was caught in conflict of interest situation and should have recused himself. MACC probed Judge Nazlan but was allegedly prevented by Chief Justice Tun Maimun Tuan Mat from dragging him to criminal court for various offences including under the Penal Code. She claimed, like latter day Sultan, discretion beyond discretion and enacted new Protocol without any basis.
Perfection
In the rule of law, the basis of the Constitution, the manner in which the accused was convicted comes first. Conviction only follows if it has been perfected in law for perfection in law.
There must be compliance on the court’s own procedures, due process, and the greater emphasis on the spirit of the law, albeit read with the letter of the law. The letter of the law, by itself, isn’t law at all. It’s about falling back on rule by law — i.e. by Man — and acting with impunity.
Interestingly, while both the court and the government stands accused of acting with impunity, the latter at least pays lip service on the rule of law. The court never mentions the rule of law in any ruling.
The jurisdictional and constitutional issues, on the RM42m SRC International case, were never visited by the High Court, and disregarded by the superior court.
Under the Basic Features Doctrine (BFD), which permeates the Constitution, no precedents can be created in law on the Prime Minister and Parliament.
The Prime Minister and Parliament stands indemnified for “acts in office”, has immunity, and implicit Pardon. Najib’s criminal cases were all about abuse of power, conflict of interest and criminal breach of trust on “deriving personal benefits” arising from bribery and corruption, and being party to illegalities like money laundering activities. The charges do not mention “secret profits” since there were none as proven by forensic accounting on the money trail.
The court disregarded political donation and CSR activities. In addition, Najib faces civil cases based on the criminal cases. In law, criminal cases cannot be used in civil cases, lest there’s violation of the rule of law.
The rulings in the RM 42m SRC International case were available in the Internet before they were read by the court. It was about building up public perceptions against Najib. No one can say that the rule of law was upheld in Najib’s case.
In law, Article 8 in Malaysia, there can be no discrimination save as provided by sunset clause which must have expiry date. In the rule of law, no one was above the law, and all are equal under the law. Yet, Najib was jailed unrepresented on 23 August 2022.
The UN Review on arbitrary detention can only be based on fact-finding that Najib was jailed, unrepresented, and that conviction on the RM42m SRC International case wasn’t perfected in law for perfection in law. Najib merits compensation for Arbitrary Detention since 23 August 2022. — 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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