Even if the Agong’s Decree on house arrest for Najib lies hidden forever, the Pardons’ Board letter dated 29 January 2024 on halving of 12 year jail sentence ‘without remission’ mentioned, exists!
Commentary and Analysis . . . We have from the horse’s mouth, Prime Minister Datuk Seri Anwar Ibrahim, that he would not get involved — perhaps in not so many words — in the controversy raging on Agong’s Decree on house arrest for former Prime Minister Datuk Seri Najib Tun Razak.
He did not mention, in disingenuous statement, remission of the jail sentence after halving and related matters.
Anwar himself was released from prison after GE14 on 9 May 2018 and granted Pardon on 16 May as recommended by dictatorial Prime Minister Tun Mahathir Mohamad. Najib, likewise, should be eligible for Pardon after he goes home. All convicts are eligible for Pardon upon serving half the remaining sentence after remission.
Anwar did not repeat what he has been saying for months since GE15 in late November 2022 viz. Agong has sole Discretion on Pardon. That can be read as sole Discretion on Decree on house arrest and Freedom as well.
Najib, for those just joining us, was jailed unrepresented on 23 August 2022 for 12 years. He was fined RM210m, and in default further jail running concurrently with the main jail sentence. RM210m was minimum five times the RM42m involved in the SRC International case.
He could have been fined the maximum RM420m under the MACC Act 2009 which can probably be declared invalid by the extent of its inconsistency with the Constitution, the Evidence Act 1950, and the CPC (Criminal Procedure Code), the Penal Code, criminal law, the criminal justice system, and jurisprudence, among others.
In Malaysia, probably no jailbird pays the fine since sentences run concurrently. We will come back later on Najib’s jail and fine with related figures.
Again, in criminal law, disproportionate punishment under the criminal justice system, was unlawful. However, except for the death penalty, no one in Malaysia has challenged disproportionate punishment. Therein the matter lies under the cover of Article 4 viz. “invalid law remains valid unless removed by Parliament and/or the court of law”.
We have already seen Anwar stating disingenuously the indefensible i.e. that he will defend the redundant Article 153 where the sunset clause expired in 1972 but was removed earlier after the weeklong disturbances which began on 13 May 1969 in the streets of Kuala Lumpur. Article 153 must be read with other related and facilitating redundant Articles in the Constitution and government related policies. Anyway, let’s not go there anymore lest we digress too much.
Najib
Briefly, Anwar sees no reason why he should get involved — i.e. in discussions –on Pardons’ Board matters. So be it, if he feels that he’s on moral high ground, with halo around the head with full works on sainthood. No doubt, he emulates the proverbial three monkeys, if not the ostrich with head buried in the sand, or the three blind men with the elephant.
No one can fault the Prime Minister, Pardons’ Board or no Pardons’ Board, if he says what he means and means what he says.
In pontificating sanctimoniously, the Prime Minister increasingly living on borrowed time in cahoots with DAP, feels that no one should challenge sultan on matters which involve them. That’s taking liberties with the truth.
Many people, even those who can’t fathom the rule of law, have the bad feeling that DAP remains the stumbling block on the Najib house arrest. The party risks red paint being splashed on its headquarters’ doors.
Agong’s Decree, based on Discretion, whether for house arrest, Freedom or Pardon, isn’t law.
No court, for whatever reason, will go against Agong. The Constitution mentions the Special Court which can convene on the Agong but provided he steps down. Again, if Agong steps down, the Special Court may not convene at all. There’s also the little matter of the Agong, who decreed on Najib, having stepped down on 30 January.
The court of law, being only about law, has no jurisdiction on Agong’s Discretion, i.e. it isn’t matter for judicial consideration and resolution. The lawyers look for the law and point it out in court. Opinion isn’t law. The court finds the law and declares it.
Conventions, the working of the Constitution, isn’t law. Conventions are even more important than the supreme law of the land.
No court will hear Application on convention. Many critics, in debating on Najib, have mentioned the Constitution and the Agong in the same breath. The 2009 Perak case law on the reserve and residual powers of the Sultan stands as good law on the hereditary ruler not being confined by the Discretion in the Constitution.
The Federal Court, by majority opinion on 1 September 2020, ruled that the Sabah Governor was confined by the Discretion in the Sabah Constitution. In short, the Governor could appoint but not sack the Chief Minister. We are discussing Discretion and not the allegation that Tan Sri Musa Aman was literally sacked on 11 May 2018.
House Arrest
The bottomline remains: no house arrest for Najib before 5 June, the next date for the judicial review (JR) set on 17 April by High Court Judge Amarjeet Singh. If we take the cue from this, Attorney General Tan Sri Ahmad Terrirudin Mohd Salleh will parrot the same line he used on 4 April and 17 April i.e. the court has no jurisdiction. Najib filed JR on 1 April.
Judge Amarjeet, if he puts on blinkers, will have no choice but concede and strike out the JR unless Najib’s lawyer Tan Sri Shafee Abdullah prevails in court. He can argue that there has been abuse of power on the house arrest by at least three persons of interest in government. There are no prizes for guessing on who have unclean hands on equity (appearing in court) viz. Anwar, Home Minister Datuk Seri Saifuddin Nasution Ismail and AG Terrirudin.
Let’s hope that Najib’s hand wouldn’t be forced on the JR. He can always file for reinstatement of the JR in the High Court under another judge. Then, Judge Amarjeet and AG Terrirudin will have mud on the face.
Issues like legal incompetence can be raised in reinstating the JR. The Debate can go all the way until the Federal Court and Federal Court Review. The Federal Court Review can sit any number of times provided that, each time, new grounds can be found and cited.
The unity government should not prolong the controversy generated by Najib being jailed unrepresented on 23 August 2022.
The rule of law, the basis of the Constitution, must be upheld including by lawmakers who are sworn on Oath. Malaysia, having written/codified Constitution, was governed by constitutional supremacy, not by parliamentary sovereignty as in the UK, for example.
It’s true that halving Najib’s jail sentence was unprecedented. If so, house arrest after halving was even more unprecedented. Still, unprecedented or not unprecedented, Agong remains Agong. There’s no excuse for virtually hiding Agong’s decree on house arrest. It was heinous crime that can be proven if shove comes after push. There can be no law, including the Official Secrets Act 1972 (OSA 72), under which the errant parties can hide illegalities on Agong’s Decree on house arrest.
Pardons’ Board
The Pardons’ Board plays advisory role in the form of recommendations. There can be no law that only the Pardons’ Board can recommend house arrest. It might not have even recommended, on 29 January, the halving of the jail sentence and reduction of fine. It’s not known what the Board recommended. There may have been discussions but no recommendations. So, it’s disingenous if the critics argue that the house arrest should have gone through the Board.
There was no basis for the reduction of the fine. So, the Pardons’ Board could not have made the recommendation.
There was no basis for halving the jail sentence. Again, the Pardons’ Board could not have made the recommendation.
Indeed, there would be no basis if the Pardons’ Board recommended house arrest. So, even if the matter came before the Board, it would not make the recommendation.
The Board has no Discretion on halving the jail sentence, reducing fine and house arrest. In short, the Board would make no recommendations on these matters, even if raised. They create precedents.
It makes no sense that Najib goes home on 23 August 2026 without halving, but stays in jail further two years i.e. until 23 August 2028 after halving.
2026 is based on the 12 year jail sentence after remission i.e. one third or four years off. Najib serves half, i.e. four years, of the remaining sentence of eight years. That bring us to 23 August 2026. The Dr Ganja case explains remission and release.
The Pardons’ Board letter mentions no remission after halving. If remission applies after halving, albeit belatedly, Najib would go home on 23 August THIS year. So, whether he gets house arrest or otherwise, really does not matter.
Affidavit
The Affidavit by Umno President Datuk Seri Ahmad Zaid Hamidi cannot be wished away. The AG remains duty-bound on rebutting him or proving that perjury was committed. Zahid and others swearing with him risk 10 years’ jail unless the judge rules, “we don’t really know what happened. We don’t know the real story”. Agong cannot turn up in court, like ex-1MDB lawyer Jasmine Loo with RM100m, and sing like a bird on house arrest. That would be undignified. He can’t even be summoned. There’s always the first time but not in this case even if the local ummah were not offended.
Remission
It can be argued that Najib, by judicial review, isn’t challenging the Agong. The Agong could not have hidden the Decree on house arrest. JR was always about challenging decision by government allegedly based on non-compliance with procedures, due process and the 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 letter of the law by itself — read hiding the Decree on house arrest — isn’t law.
We reiterate, in Submission in the court of public opinion, certain things for further and better particulars.
The main issue that arises was the chain reaction that was set off but not from Agong’s Decree on house arrest dated 29 January 2024 i.e. the same day that the Pardons’ Board met and informed Najib and the Director-General of Prisons’, by letter, that the former’s 12 year jail sentence had been halved and the RM210m reduced. It now stands at RM50m.
Najib, under the halving, would be freed on 23 August 2028. In violation of Article 8 — no discrimination — and Article 5 (right to life), there was no mention of remission in the letter. If Najib defaults on the fine, he serves additional year in jail. In that case, based on the Pardons’ Board letter, he can only go home on 23 August 2029. In Malaysia, jail sentences run concurrently.
Under the original 12 year jail sentence, Najib would be released on 23 August 2026 i.e. after one-third remission and serving half the remaining sentence.
Under the halving, he can only be freed on 23 August 2028 since there’s no remission mentioned in the 29 January letter. The letter also implies that the sentence would be consecutive i.e. 6 years jail plus one year jail equals an unprecedented seven years.
Real Issue
In hindsight, we may be making song and dance act on the house arrest for no rhyme or reason, perhaps getting more than a little carried away.
The real issue, since the 29 January letter on halving exists, may be what flows from the reduced jail sentence i.e. that it mentions no remission. Halving, with remission, means that BossKu can have teh tarik with the family at the Pavilion on 23 August THIS year. This date should be confirmed with the Director-General of the Prisons’ Dept. If he, or the Home Minister, wags the tail, JR would be in order. The issue of out of time would not arise. The clock on JR only starts ticking when the decision and/or no decision has been made.
The focus of the unity government on Najib should be on out of court settlement.
Otherwise, the controversy created by jailing him unrepresented on 23 August 2022, would never end.
There must be closure on Najib being scapegoated for the failure of 1MDB when the IPO was aborted.
1MDB didn’t fail because some people allegedly made off with bond monies. The government wouldn’t be saddled with debts related to the bond monies if the IPO had gone through. It would have brought in unlimited funds. Unfortunately, some DAP leaders in cahoots with dictatorial former Prime Minister Tun Mahathir Mohamad initated Trial by Media, and that no doubt influenced the court against Najib.
Civil action can be filed for getting back 1MDB bond monies which were allegedly stolen by fugitive fund manager Jho Low and comrades in crime. Lawyer and comrade in crime Jasmine Loo is in court, probably sent by Jho Low, for completing the scapegoating of Najib on 1MDB.
The people want the money back from Jho Low and comrades in crime.
Criminal suit does not get the money back.
The accused, after jail, will be laughing all the way until the bank and Malaysia will be saddled with debts created by the 1MDB bonds held by investors. — 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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