There can be no law which states that the Agong must accept the advice of the Pardon’s Board on Petition by former PM Najib Razak. Advice isn’t compulsory.
Commentary And Analysis . . . If former Prime Minister Datuk Seri Najib Tun Razak had filed Discovery Application before 3 July 2034 on Agong’s Decree on house arrest, purportedly being hidden by the government as per the 2nd Affidavit on Anwar Ibrahim, the judicial review (JR) would have been stayed and the Discovery Application heard first. More on this and remission on halving of jail sentence later . . .
The elephant in the room isn’t the Agong’s purported Decree on house arrest. It’s the fact that the halving of the 12 year jail sentence, in the form of letter dated 29 January 2024, mentioned no remission i.e. one third off for weekends, public holidays and good behaviour.
Najib should seek further and better particulars on halving of jail sentence.
Najib may be indulging in exercise in futility by launching Appeal against the High Court dismissing Judicial Review on the government virtually hiding Agong’s Decree on house arrest.
If the halving carries no remission, as pointed out by Law Professor Shad Farqui in op-ed in the Star column, Najib would be released on 23 August or 22 August (Shad Faruqi) 2028.
Under the original 12 year jail sentence, which comes with remission, Najib would be released on 22 August or 23 August 2026.
Under the halving, if there’s remission, Najib would be released on August 23 or August 22 THIS YEAR.
If so, Najib merits immediate house arrest until August 23 or August 22 THIS YEAR.
So, it doesn’t matter whether Agong granted Decree on house arrest, in the afternoon, outside the Pardon’s Board meeting on 29 January 2024.
Najib, so far, hasn’t sought further and better particulars on the halving.
If true, the halving carries no remission, he should reject it and serve the original 12 year jail sentence which comes with remission, based on Prison’s Dept procedures. In that case, he will be released on August 23 or August 22 in 2026 i.e. another two years from now.
Najib
Najib can Petition Agong for Pardon, participate in GE 16 in 2027, and return as Prime Minister of unity government decreed by Agong.
(That can mean the law was now silent on the Agong’s Discretion. There can be no law which states that the Agong must accept the advice of the Pardon’s Board. Advice, by its very nature, isn’t compulsory.)
Sabah and Sarawak will accept Najib.
The former British Borneo territories despise Anwar Ibrahim, Mahathir Mohamad and Abdul Hadi Awang.
Najib, before he files Petition for Pardon, should get determination from subject matter experts on whether the conviction on the RM42m SRC International case was perfected in law for perfection in law.
He was jailed, unrepresented, on 23 August 2022 i.e. three months before GE15.
Under the rule of law, the basis of the Constitution, the manner in which person was convicted comes first. Conviction can only follow if it has been perfected in law for perfection in law. There must be compliance on procedures, due process and the greater emphasis on the spirit of the law.
There’s greater emphasis on the spirit of the law, in the rule of law as 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 law.
The letter of the law, by itself, isn’t law at all. There’s no democracy, no legitimacy, it’s rule by law, rule by Man and the law of the jungle where anything goes for acting with impunity.
Nine judges having the same story in three courts was no longer the issue. The superior court isn’t about merits but procedures. A case, having closed, will never be reopened. The court was about closure. If there was mistrial, there can be retrial before new judge in the High Court. Alternatively, the superior court can hear the case.
We can recall that Chief Justice Tun Richard Malanjum, in Farewell Address in 2019, implied that Malaysia — lacking in skills for law practice and lacking in court room skills — wasn’t always about the rule of law.
Malanjum, disclosing issues among the legal fratenity and the court, implied that he couldn’t convince stakeholders that the letter of the law, by itself, wasn’t law.
Najib Was Unrepresented
CJ Tun Maimun Tuan Mat claimed Discretion beyond Discretion on jailing Najib, unrepresented, on 23 August 2022.
CJ wasn’t Sultan, having Discretion beyond Discretion, as declared by the Perak case law in 2009.
Even Discretion does not exist if abuse of power can be proven. The Raja Azlan Shah case law and Asian Arbitration case law on abuse of power refer. The Federal Court, in the Asian Arbitration case, found that Attorney General Tan Sri Tommy Thomas committed abuse of power under the guise of Article 145.
Judicial Review
We resume on the judicial review.
In England for example, the High Court would hear the merits of judicial review application even if the government complied with procedures. The English Court would also visit procedural fairness.
In Malaysia, the High Court would only consider the merits of JR application if the government was non-compliant on its own procedures. The court does not go into procedural fairness.
Procedures aren’t law. The court of law has no jurisdiction i.e. procedures are not matter for judicial consideration and resolution. The court of law remains only about law. Having said that, Discretion does not exist if abuse of power can be proven. Again, there’s case law in Malaysia on abuse of power.
The former Prime Minister, filing Appeal at the Court of Appeal on the High Court dismissal of the Application for Leave for JR may be exercise in futility.
It’s difficult on Najib proving errors in facts and errors in law on the High Court dismissal of JR. The High Court normally does not go against the Attorney General (AG).
Asian Arbitration Case
The former Prime Minister should file case against AG for alleged abuse of power and perjury on the JR case. The Asian Arbitration case refers.
He should also dismiss the legal team for legal incompetence, beginning with the RM42m SRC International case, and sue them on the same matter.
Everything has been going wrong for Najib in court ever since the RM42m SRC International case.
The 1MDB Audit Report case which went in favour of Najib and CEO Arul Kanda wasn’t any great victory. The Prosecution could not point out, in the High Court, the law on “tampering”. The AG appealed but was ruled out of time. The issue wasn’t out of time, even if it was the issue, as the court can allow it. In fact, having not pointed out the offence, the AG could not cite the errors in facts and errors in law in the High Court dismissing the case.
No Immunity
It was fatal flaw in law when Najib remained persuaded that he had no immunity for “acts in public office”. In fact, based on the unwritten Basic Features Doctrine (BFD), the concept which permeates the Constitution, Najib was indemnified for “acts in public office”, had immunity, and implicit Pardon.
The Trump in the US Supreme Court shows that there can be no law taking away the immunity of the head of government (and head of state) for acts in public office.
It was brilliant ruling which has bearing on Najib’s plight in jail and on case/s.
In law, the US Supreme Court could not say that Trump as President had no immunity. The court separated president and private conduct.
Prerogative and discretionary powers are not law. The court of law has no jurisdiction i.e. it’s not matter for judicial consideration and resolution. The court of law was only about law.
Prerogative and discretionary powers do not exist if abuse of power can be proven. There’s case law on abuse of power.
Abuse of power cannot be proven in the case of presidential acts. It may be proven in the case of private conduct.
There’s email from the Atlantic on the US Supreme Court declaration on immunity.
Opinion
In case it has bearing on Najib’s case/s and plight in jail, we reproduce below the Opinions verbatim:
Email from the Atlantic follows . . .
The Supreme Court released a decision today that grants presidents partial immunity from criminal prosecution.
In a 6–3 vote along ideological lines, the justices ruled that a president’s exercise of “core” constitutional powers are protected with “absolute” immunity, their remaining official actions are presumed immune, and unofficial acts are not protected at all.
The Court has kicked the case back to the lower courts to decide which parts of Donald Trump’s federal election-interference indictment fall under each category, all but confirming that Special Counsel Jack Smith’s January 6 case will not go to trial before Election Day.
Three Writers
Below, three Atlantic writers help you make sense of the ruling and what it means for the future of presidential power in America.
Stephanie Bai: Trump’s team sees the Supreme Court decision as a win, even though the justices rejected his claim to absolute presidential immunity. How do you think Trump and his allies will use this ruling in his campaign and in their rhetoric on the election-interference case?
David A. Graham, staff writer: I was fascinated to see Trump’s campaign immediately label the decision “total immunity.” Maybe that says more about his love of winning than it does about his team’s strategy. I expect we’ll continue to see more of this: He’ll claim that the Supreme Court fully vindicated him, ignoring that the trial court still has much to work out here, and he’ll say this proves the cases against him are just political persecution. We saw a little of this in the debate last week, where he refused to disavow the January 6 insurrection and quickly pivoted to accusing Joe Biden of the “weaponization” of the Justice Department.
I wonder if this is a good idea, though.
No Immunity
Polls show that strong majorities of Americans—understandably!—don’t think the president should be fully immune from prosecution (nor do they trust the Supreme Court). In spiking the football, Trump risks reminding voters about the things they like least about him.
Stephanie Bai: Will this ruling have any bearing on the other criminal cases pending against Trump?
Quinta Jurecic, contributing writer: The majority’s ruling is so complex and tangled—and the rules that it purports to establish are so opaque—that it’s difficult to say how precisely it will be interpreted by lower courts. I spent an hour reading through the federal January 6 indictment trying to make sense of how the standards set by today’s decision would apply to the various allegations set out by the special counsel, and concluded that I simply had no idea how to apply these rules.
Suffer
The case that will most obviously suffer from the Court’s ruling is the Georgia-state case against Trump about his effort to overturn the 2020 election, which addresses substantially the same conduct as the election-interference charges he faces in federal court. The Georgia case, though, has already been held up over litigation concerning conduct by Fulton County District Attorney Fani Willis, and it won’t get moving again anytime soon.
What about the New York case, in which Trump was convicted on 34 felony counts of falsifying business records? The majority of the conduct at issue happened before Trump took office, but today’s ruling holds that prosecutors can’t even introduce evidence of official presidential acts into the record to prove the criminality of an unofficial act—so Trump could point to stray pieces of evidence here and there from his time in office in an effort to get the verdict thrown out. (That doesn’t mean this litigation will be successful, of course.)
Stephanie Bai: You wrote today that one of the most basic principles of American constitutional government is that the president is not above the law. Why, in your view, did some Supreme Court justices challenge that principle today? And what does that mean for the future power of the presidency?
Absolute Immunity
Adam Serwer, staff writer: The Supreme Court ruling gives presidents “absolute immunity” for certain official acts but then uses legalese to blur the difference between official and unofficial in such a way that the distinction between the two is virtually impossible to make. The end result is that whatever lip service was paid to the rule of law in the opinion is obliterated; a president can act with the most corrupt purpose imaginable and be immune from prosecution, no matter the motive or the consequences. In this context, it renders a president who refuses to leave office immune to prosecution for the actions he takes in doing so, as long as he uses his “official” powers in the attempt.
Make no mistake, the ruling is intended to shield Trump and Trump alone, or possibly some future aspiring despot who happens to be a Republican. A Democrat in similar circumstances would almost certainly find himself subject to the kind of pieties about small government and the rule of law the right-wing justices invoke when they want to say the government can’t regulate pollution or financial fraud. — 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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