Prior to the budget, I am one of Tengku Zafrul’s critics, particularly on his fiscal consolidation policy which to me is just an IMF template to control government spending. I was ready to criticise the budget.

But contrary to what I expected, the finance minister did just the opposite. He was bold to table a fat budget with an increase of more than 50 billion ringgit from the previous year.

One word to describe this Budget 2023 is WOW! It is a very well thought-out budget from the preparation which includes representation from various sectors of the economy and all walks of life. In another word, almost no one is left behind. From those giving birth, kindergarten students, youth, unemployed, senior citizen and both those who are still married with kids as well as single parents. As always, the physically disabled group was never forgotten.

Budget 2023 Creates A Vibrant Economy

The government appears to be very serious and proactive not only to create a vibrant economy from spending on various development projects which benefits large corporations but as well as medium and small enterprise up to each individual such as e-hailing drivers and food delivery riders through various incentives, training and financing. This is a very proactive budget for creating new jobs for almost everyone.

In other words, as long as we Malaysians are willing to work, there are means provided by the government to assist us, be it for an 18-year-old who just left school or a retiree who wants to make a comeback into the working class.

The question is, where is the government going to get the extra 50 billion ringgit to finance this budget? I guess it will be from the anticipated GDP growth which will provide a vibrant personal, corporates as well as sales tax. Secondly, I guess the government is also anticipating a big revenue from the newly introduced sales tax on online purchases and finally there is a possibility of the reintroduction of GST next year. Just a wild guess though.

Budget 2023 Criticism

The critics can say anything about this budget with labels such as “Election Budget” or whatever but truly it is a very comprehensive budget. The only reason the opposition is going to reject this budget is that they are the opposition. They have to oppose anything that the government suggests even though it can benefit the people.

So I encourage each individual, old and young, employed or not employed, married or single to go through the 102 pages of the budget speech and look for the opportunities that suit you.

Well done Tengku Zaful. Well done Ismail Sabri. Credit must be given where it’s due! — NMH

About the writer: Zam Yahaya was a Banking and Capital Market professional by training and a graduate in Accounting, Business & Islamic Finance and is a columnist with NMH. The points expressed in this article are that of the writer and do not necessarily represent the stand of NMH.

The post Election Budget? So What, As Long As We Benefit From It! first appeared on NMH.

Finance Minister Tengku Zafrul Tengku Abdul Aziz spent two hours in Parliament on Friday (07 Oct), from 4pm to 6pm, on reading the Budget 2023 “Speech”. It mostly consists of a list of allocations — goodies is the word misused every year — including comparatively grudging paltry sums, as usual, for Sabah and Sarawak.

Budget 2023 remains, like the national annual budgets before, for the rich. Besides Sabah and Sarawak, there are also grudging paltry sums for the poor.

It has been argued every National Budget Day that these Territories, countries on their own, are being treated worse than the relatively physically smaller states in Malaya.

Anyone who has visited Sabah and Sarawak will find virtually no hint of Malaysia in these Territories. They will find themselves in two worlds, all on their own, separated by the tiny oil-rich Sultanate of Brunei, an absolute monarchy paying lip service to the rule of law, whose independence remains a blessing in disguise for its two larger neighbours.

Brunei, among the wealthiest countries in the world, represents what Sabah and Sarawak could have been on their own, if they were not bogged down by Malaysia and the problems in Malaya. The oft-cited Malaysia Agreement 1963 (MA’63), observed in the breach by the Federal government, isn’t the be-all and end-all of life.

The Borneo Territories — Sabah and Sarawak — remain the poorest states in Malaysia since 16 Sept 1963. They are even poorer than Kelantan and Terengganu, the poorest states in Malaya.

It’s a toss every year between Sabah and Sarawak for the dubious distinction of being the poorest in the country.

World Bank reports have documented the poverty in Malaysian Borneo just as it has traced the history of colonialism in British India and the Hindu evil caste system which imposed poverty on countless generations for thousands of years.

The list of allocations, the nitty gritty details, could have been attached to the Budget 2023 Speech. The finance minister alas had virtually nothing else to say in the Speech beyond the list of payments.

We also do not know how the RM372.3b Budget 2023 was further divided beyond RM272.3b for operating expenditure, RM95b for development expenditure, RM5b for Covid-19 fund and RM2b for contingency savings.

Development Expenditure

The RM95b may well have been carried over from Budget 2022 and from previous years. If so, we don’t know the actual development expenditure for 2023.

It has been disclosed in the past, perhaps inadvertently, that no more than perhaps 50 per cent of the development expenditure for a year is new. The rest consists of projects carried forward from the previous year/s.

Zafrul should have elaborated on this point in his Budget 2023 Speech but alas there was no Speech. He was all about creating a “feel good” atmosphere by rattling off figures on “goodies” in between gulping down water.

Macroeconomic Indicators

Zafrul’s Speech should have focussed and elaborated on macroeconomic indicators including the global economic outlook, markets including India and China, global supply chain issues and international logistics and a whole list of issues including financial policy, taxes, national debt burden, Ringgit Malaysia (RM), relations with IMF, World Bank, ADB and IDB; the status of the GLCs and GLICs and their effects on the stock market; and the story on 1MDB with the finance ministry. We need the due diligence and forensic accounting on the 1MDB money trail, whether on political donation or other aspects.

Other areas include rising prices and inflation, welfare policy, poverty eradication, cash handouts, women, youth, vulnerable groups like the Orang Asal, Orang Asli, stateless, PTI and refugees; innovation, education, foreign labour, training labour, the lifelong learning concept, getting Malaysia out of the middle-income trap based on cheap foreign labour and the low end of the economy, labour replacement technology in the workplace, defence, and internal security, among others.

Now, we may have to wait for the Annual Bank Negara Report, if there are some answers coming.

Restructuring

All politics, it’s said, are about restructuring the distribution of revenue and resources, and restructuring the distribution of political power. In India, it has been done for starters by outlawing the Hindu evil caste system and redressing historical grievances.

The political power structure in Malaysia, an Equal Partnership of Sabah, Sarawak and Malaya on paper, remains lopsided, being observed in the breach. Sabah’s demand for 40 per cent of the revenue collected in the Territory, as stipulated in the Constitution, remains elusive.

During the runup to GE14, then DAP Secretary-General Lim Guan Eng publicly pledged that both Sabah and Sarawak would each get 50 per cent of the revenue collected in the two Territories and 20 per cent of oil royalty.

After GE14, Guan Eng said that Mahathir Mohamad who again became Prime Ministerial Dictator did not agree with the figures. Colonialism, which has been outlawed under international law since World War II in 1945, has been defined as a criminal enterprise based on a nation accumulating capital at the expense of subject nations ruled by the former.

Therein lies the dilemma in Sabah and Sarawak.

Political Will

If there’s no change in the amount of revenue, resources and power taken by the Borneo Territories, it can be blamed on the lack of political will in the Federal government in Putrajaya, the absence of leadership in Sabah and Sarawak, both Territories not speaking the same language, and the imposition of proxy governments in Malaysian Borneo.

In Sarawak, the proxy government has not changed since 1966 when Chief Minister Stephen Kalong Ningkan was ousted by an emergency declaration engineered by the Federal government. No Orang Asal has been Chief Minister of Sarawak since Penghulu Tawi Sli who replaced Ningkan briefly. It has been one proxy after another.

In Sabah, no Orang Asal has been Chief Minister since Huguan Siou (Paramount Chief) Joseph Pairin Kitingan was ousted in Mar 1994 through three defections engineered by Mahathir and Anwar Ibrahim in cahoots with local Chinese moneybags (names withheld) in Sarawak and Labuan.

It must be stated that Chief Minister Musa Aman, who was ousted on Sat 12 May 2018 by a ragtag bunch including PTI (pendatang tanpa izin or illegal immigrants), claims Orang Asal heritage on his mother’s side. His father, Pathan from southern Afghanistan, came to Sabah by way of the British Indian Army in Calcutta (now Kolkata), India. — NMH

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 is 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 NMH.

The post Zafrul Evaded ‘Big Picture’ In Budget’23, ‘Speech’ For The Rich first appeared on NMH.

DAP’s Lim Kit Siang should be at the forefront in pushing for the Royal Commission of Inquiry (RCI) on the 1MDB Story. An RCI on the RM3.5b SRC funds frozen in Switzerland would be quicker while that on Judge Nazlan can be completed in 14 days i.e. before GE15.

The public has the right to know the entire story on the Finance Ministry-owned financial vehicles.

The RCI can even focus on the larger story viz. the 2009 to 2018 Najib Administration. In that case, the RCI may find that former Prime Minister Najib Abdul Razak stands indemnified, has immunity, and an implicit Pardon under the Basic Features Doctrine — whether written or otherwise — in the Constitution.

If true, wrongdoing does not arise in Najib’s Administration. The court has no jurisdiction. RCI will demonstrate that Najib does not belong in jail for even a day. RCI isn’t court of law, does not punish, or recommend punishments, but has great moral authority in speaking truth to power and helping find finality of closure based on reconciliation.

The nation, healed, can put the past behind — read 2009 to 2018 — and move forward on living with the virus in the post-pandemic years and rebuilding the economy battered by disruptions in the global supply chain and international logistics and rethink on globalisation.

Pardon, whether implicit, Immediate or for wrongdoers, isn’t law. The Agong has discretion. The matter is nonjusticiable viz. not for judicial consideration and resolution.

Constitutional Supremacy

The Constitution, it must be noted, isn’t law but has the force of law, is based on the ultimate political documents which set forth the governing institutions of state — the Federation of Malaya Agreement 1948, the Federation of Malaya Independence Act 1957, and the Malaysia Agreement 1963 (MA’63).

If the Constitution is the supreme law of the land, it’s because Malaysia is governed by Constitutional Supremacy, not Parliamentary Sovereignty. The Doctrine of Separation of Powers decides.

Conventions, the working of the Constitution, isn’t law. No court will go into conventions. It has no jurisdiction. The court of law is only about law.

Najib’s plight and fate can only be decided on the basis of whether there’s law or no law from 2009 to 2018. No court has been willing to visit these years in administration.

Instead, the former prime minister has been made the scapegoat and jailed by the Federal Court, although unrepresented, on Wed 23 Aug 2022.

The conviction could not be perfected in law. It means there was no conviction. Najib remains in jail as a political prisoner. He can send a letter of representation to the Director-General of Prisons. He can plead to be released or alternatively, placed under house arrest pending Immediate Pardon from the Agong. The Federal Court in Review can free him, on the basis that there was no conviction. Let’s keep our fingers crossed.

DAP’s Anti-Najib Narrative

Now, in the absence of RCI, stories on 1MDB are being told from the middle or from angles which suit the convenience of the narrator.

Instead, Kit Siang is challenging Umno leaders to condemn 1MDB as a financial scandal.

That’s like putting the cart before the horse. Earlier, Kit Siang held out the prospect of working with Najib, in taking the cue from the “Malu Apa BosKu” #JusticeForNajib, if he condemns 1MDB as a financial scandal. Kit Siang doesn’t ask Mahathir Mohamad to condemn his administration from 1981 to 2003 and 2018 to 2020 as nothing but dictatorship.

The Singapore Straits Times held “That, in turn, gave well-positioned Umno leaders, particularly the president, the power to control the patronage process through the creation of political slush funds disguised as businesses, such as 1MDB, that funded the party’s activities nationwide“.

Mahathir Family In Power

The crux of the matter on Najib may be Mahathir, in cahoots with the Opposition including Kit Siang and certain media, eroding public confidence in the IPO (initial public offering) announced by 1MDB.

The abortion of the IPO in the midst of public controversy may have virtually struck a mortal blow.

Even without the IPO, media reports show that 1MDB’s assets exceeded liabilities by several billion ringgit but the public confidence was no longer there. Public perceptions were against the ruling BN (Barisan Nasional) government. The rest is history.

The court has no jurisdiction over Privileged Communication. Yet, Mahathir and those in cahoots with him — read The Sarawak Report and western intelligence agencies — were somehow able to virtually hack into 1MDB’s privileged communication in email, probably distort them, and flood the social media with them. The privileged communication even found its way to the Dept of Justice (DoJ) in the US. Media reports revealed that one MACC Chief, in cahoots with Mahathir, provided the DoJ with “incriminating evidence” against the Najib administration.

In jurisprudence, no court would enter into the prerogative and discretionary powers of government and management. Of course, there’s the Raja Azlan Shah case law on abuse of power. In fact, this is a “bad law” which can only be read in isolation.

It falls apart if read with other laws, the Constitution and on indemnification and implicit Pardon, immunity, and the Agong’s discretion on Immediate Pardon for those wronged and Pardon for wrongdoers.

Open Secret

It’s an open secret that Mahathir, from even GE13 in 2013, manipulated the media — an unthinking animal — to build up public perceptions against Najib just as it was done earlier against Anwar Ibrahim. He wanted his family installed in power. That meant getting Najib out of the way, permanently if possible, otherwise temporarily for the Mahathir family. They needed to “buy time” against their political rivals.

No court will go into conspiracy theories but an RCI would want to hear them, lest there are elements of obstruction of justice, a heinous crime in other jurisdictions.

In Malaysia, the court would dismiss obstruction of justice as conspiracy theory and declare it has no jurisdiction. In Sodomy 1, for example, Anwar screamed “political conspiracy” until he was hoarse. Judge Augustine Paul advised him to focus on the charges.

In Sodomy 2, I advised Anwar that his best bet was to delay the case for as long as possible. It took nearly nine years before he was convicted. Anwar was “fixed”, given the manner in which the charges were framed.

Federal Court With Impunity

In Najib’s RM42m SRC International case, the Federal Court did not allow the debate to go back and forth for the finality of closure. Instead, the court did not pay even lip service to the rule of law but acted with impunity. It fell back on the letter of the law, by itself, as law. It’s not law at all but dictatorship.

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.

The RCI will find that the manner in which a person was convicted comes first in the rule of law. Conviction comes later if there has been compliance with procedures and the rule of law.

Otherwise, there has been no conviction. If the court refuses to free the person who carries no conviction, he or she becomes a political prisoner.

The court cannot fall back on the finality of closure approach in refusing to free a person who carries no conviction. If a conviction has not been perfected in law, there has been no finality of closure.

The court has practice directions and the oft-cited “amalan, tatacara dan prosedur Mahkamah” (practices, work ethics related to procedures, and court procedures) which probably was being observed in the breach. — NMH

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 is 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 NMH.

The post DAP’s Kit Siang Should Push For RCI On 1MDB first appeared on NMH.

The Bar Council’s role and functions are about the 20K Malaysian Bar, certainly not putting itself in a position where it invites the kind of letter of demand (LoD) mentioned in the following link. See here.

If we take the cue from the LoD, the Bar Council has published a statement which was allegedly false and malicious, and the allegedly false and scurrilous imputations allegedly constitute grave and serious libel. See here.

There were real issues with the RM42m SRC International case in the Federal Court.

If the Debate goes back and forth, whether, in court or outside, there are no prizes for guessing who will prevail. Obviously, it will be the one still standing.

In the SRC case, the Federal Court did not allow the Debate to go back and forth. It was a violation of the rule of law.

The SRC Ruling, being unanimous, was another violation of the rule of law. There must be dissenting judgment/s. Dissenting judgment/s facilitate Appeal and Review.

Anyone can be “fixed” considering the way the charges were framed. That’s why all nine judges in three courts said the same thing. Obiter Dictum is just the Opinion of the judge. It’s not part of the Ruling.

The RM42m was not from SRC International although the case reads SRC. The money trail shows the RM42m came from a loan which Maybank gave to another Company which may or may not have been linked to SRC International.

Judge Nazlan was with Maybank at that time and was in the know. He should have been a witness in the SRC case. Instead, he presided over the case in the High Court. He should have recused himself.

Judge Nazlan should be brought before the Judicial Ethics Committee and sacked by the Agong. Former Prime Minister Najib Abdul Razak’s conviction on the RM42m SRC International case will cease to exist as if it never existed at all. The court has no jurisdiction.

Let’s not ask which country follows the rule of law. We should focus on which Supreme Court follows the rule of law.

Politically Motivated

Senior Sarawak lawyer Patrick Anek Uren posted the following, for what it’s worth, in my TimeLine on FaceBook on Tues 30 Aug 2020:

“I tend to concur Najib’s case is ‘political’ by the various missing pieces that should have been brought in but were left out.”

“Zeti and her husband and a Minister N.Y. were left out. They were the doorkeepers. The going out and coming in of money had to be through the door they kept guard over. They should know it’s the right or wrong money is coming in. And they should stop it if it is the same wrong money having previously gone out and now coming in through the same door.”

“And on the charge of money laundering, Najib should not be charged alone. He should be charged together with those doorkeepers. And to single him out to be charged only makes it looked as if his charges were politically motivated.” See here.

Disciplinary Action

We can be forgiven for thinking that the catalyst for the LoD was the Bar Council threatening disciplinary action against Najib’s lawyers on the SRC case.

The Bar Council may have added insult to injury when it imported language into the statement that was probably unbecoming of a professional body that takes its mandate from the legal fraternity.

It’s not the work of the Bar Council to protect the court system or defend the judiciary even if they were under attack from all sides. See here.

Some examples from the statement suffice. They demonstrate why senior lawyer Zaid Ibrahim was so upset with the Bar Council: agast, abused, disrepute, frantic acts, defiance, sudden discharge, undermine, unscrupulous strategies, perversion, abuse, tactics, purported injustice, self-inflicted, crafty schemes, purported victimisation, highly mischievous, vicious and unwarranted attacks, threats, wholly condemns, irresponsible parties, and unsavoury pressure.

If the Bar Council wants to take disciplinary action against Najib’s lawyers, it should just go ahead. Instead, it raved and ranted in the statement, became hysterical, and virtually ran amok like fanatics at a public march — eyes rolling with the whites showing, beating on the chest, tearing at the hair, crying, screaming, wailing and moaning as if possessed by any number of demons.

Legal Profession

Opinion isn’t law. Only the court can declare the law. The Bar Council’s take on the Legal Profession (Practice and Etiquette) Rules 1978, as the barometer “for the conduct of lawyers in the country and underlying paramount duty of lawyers as officers of the court”, is a matter for the court in seeking closure.

Patently, the issues in the conflict between senior lawyer Zaid Ibrahim and the Bar Council may be a matter for the court. It has nothing to do with Zaid Ibrahim’s legal firm and the Bar Council.

Finding Dignity

There’s a case for the Bar Council finding its dignity again. It must resist the temptation to borrow the Attorney General’s hat “when it’s perturbed by politicians’ comments and when attacks are made on the administration of justice, whether seditious or bordering on contempt of court”. See here and here. – NMH

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 is 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.

The post Bar Council Not Seen As Upholding The Rule Of Law first appeared on NMH.

Former Prime Minister Najib Abdul Razak may have been sent to jail on Wed 23 Aug 2022 on the RM42m SRC International case. Still, it would be premature to argue whether he was involved in wrongdoing or otherwise, i.e. on political donation, Article 153 and related matters, and thereby committed abuse of power. In law, there’s a thin line between abuse of power and prerogative and discretionary powers. See here.

Article 153 accords Special Position, by way of a reasonable proportion, for Malay, Orang Asal and Orang Asli in four specific areas viz. intake into the civil service, intake into training institutions owned by the government and training opportunities, government scholarships, and opportunities from the government to do business. Under the Malaysian Anti-Corruption Commission (MACC) Act, government contracts are not corruption.

There’s no law in Malaysia on political donation, no law against it, and no law discouraging it. It’s an open secret that the government gives out contracts to source political donations for parties in power. For example, according to media reports, RM3b of the money spent on the vaccination programme allegedly went as political donation. If true, an abuse of power case can be made out here.

Former Sabah Chief Minister Musa Aman, facing 46 corruption charges in court, claimed that the RM380m he collected — it was from timber contracts — was a political donation. He was freed. The Inland Revenue Board (IRB) did not go after Musa for taxes on the RM380m. MACC and Bank Negara did not file civil action on money laundering activities and freeze, seize and forfeit the RM380m.

No Law On Najib Jailing

The question that arises was whether there was a law behind Najib’s jailing. If not, he may be a political prisoner and should be placed under house arrest pending Pardon. The Director General of Prison has the prerogative and discretionary powers on house arrest.

It’s obvious that someone or some people wanted Najib out of the way, permanently if possible, otherwise temporarily. They see the reform-minded Najib as a menace. Besides progressive legislation, Najib started the process of giving greater administrative powers by devolution to Sabah and Sarawak. He conceded that the Federal government had been non-compliant with the Malaysia Agreement 1963 (MA’63).

We can recall that Opposition Leader Anwar Ibrahim, who preached reforms, suffered the same fate masterminded by Mahathir Mohamad, not once but twice. Anwar, being hardcore, has moved on with Pardon. He lives to fight another day. He sees himself as the Prime Minister-in-Waiting. And Waiting. And Waiting …

Commonwealth Jurisdictions

If push comes to shove on taking the cue from Umno President Ahmad Zahid Hamidi, the take by Commonwealth jurisdictions on Najib’s plight may help him leave jail and continue his sentence under house arrest. It’s highly unlikely that Commonwealth jurisdictions, subscribing to the rule of law, would be unanimously against Najib. It cannot be ruled out that dissenting opinion would be in the majority. Can refer here, here, here and here.

The SRC Ruling, which does not mention the rule of law, leaks all over. It has so many loopholes that it cannot be considered perfection in writing for perfection in law. For example, the oft-cited RM42m did not come from SRC International but from a company to which Maybank gave a loan. High Court Judge Nazlan was with Maybank at that time and was in the know. Instead of being a witness in the SRC case, he presided over it at the High Court. He should have recused himself.

The internationalisation of Najib’s plight depends on how Commonwealth jurisdictions and the Commonwealth Secretary-General respond. It’s not about embarrassing the nation.

Najib’s plight can also be taken up by the International Bar Association.

Then, the matter can be taken up with the UN Secretary-General and UN Security Council.

The UN Secretary-General would refer to the International Court of Justice and International Criminal Court for Advisory Opinion.

Agong’s Discretion

If Pardon was about the SRC conviction, the first attempt may not succeed but Agong has discretion. Agong has reserve powers and/or residual powers as hereditary ruler. The second attempt for Pardon, if the first fails, can only be submitted three years later and thereafter every two years. See here and here.

It may be a novel development if Pardon was sought for the years 2009 to 2018 — read “for acts in office” — when Najib was prime minister. The SRC case, and other cases which Najib faces, would cease to exist. The court would have no jurisdiction over the cases and Pardon. The Pardon would be nonjusticiable i.e. not for judicial consideration and resolution. Again, the court has no jurisdiction. 

Pardon, indemnification and immunity are not law. Pardon, mentioned in the Constitution as part of the role and functions of the Agong, is not law. If it was law, Pardon can be challenged.

The prime minister and Parliament may stand indemnified, and have implicit Pardon, “for acts in office” under the Basic Features Doctrine — whether written or otherwise — in the Constitution. The Basic Features Doctrine cannot be amended. It cannot be done away.

Impunity

It’s clear from what transpired at the Federal Court in the week beginning Mon 15 Aug 2020 that the Chief Justice (CJ), Tengku Maimun, may have acted with impunity and fallen back on the letter of the law, by itself, as law. It’s not law at all. There’s no democracy and no legitimacy. It’s dictatorship.

There was no attempt to visit the constitutionality issues, including the Basic Features Doctrine, on the SRC conviction.

It’s a matter of public record that the 5-Person Federal Court Panel on the SRC case unanimously rejected Najib’s Application to adduce fresh evidence after denying the admission of QC Jonathan Laidlaw. The Panel also rejected the Application by the new defence team to adjourn the case by three to four months. It would have been enough to seek input from retired Federal Court judges in Commonwealth jurisdictions. The new defence lawyer, Hisyam Teh, was denied discharge from the case. It was the moment of truth when the CJ refused to recuse herself despite incriminating disclosures by her husband on FaceBook. It did not look good when the husband deleted the errant posts in his FB timeline. No one else could have done it.

The CJ conceded in court that the Panel didn’t read Defence Submission, may not do so and sees no reason to do so. Indeed, the Ruling on the SRC conviction was on the Internet before the CJ read it in court.

All these happenings in court were a violation of the rule of law, the basis of the Constitution.

Conviction Is Not First Priority

In the rule of law,  it’s not the conviction that comes first. The manner in which a person is convicted takes precedence. The jury may no longer be out on whether Najib was convicted by law. It could not be when he was sent to jail by a court acting with impunity in violation of the rule of law. Again, the letter of the law, by itself, isn’t law at all. This point has been made earlier and needs reiterating in Federal Court Review.

If conviction can’t be perfected in law, there has been no conviction. This point can be stressed in the Applicatìon for Federal Court Review of the SRC case. If the Federal Court finds the Application was not Review, but another bite at the cherry,  it will declare that it has no jurisdiction and strike out the Application. See here. – NMH

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 is 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.

The post Najib, As ‘Political Prisoner’, Should Be Under House Arrest first appeared on NMH.

All predictions are that GE15 will be held immediately after the Budget ’23 presentation on Fri 7 Oct 2022 and, if push comes to shove by Umno and others, even as early as late Sept ’22. It may be more prudent if the new government tables Budget ’23 i.e. after GE15.

Prime Minister Ismail Sabri Yaakob has been found wanting on fighting rising prices and getting the pandemic-hit economy on track. The people have never experienced so much suffering since World World II ended in 1945. They see Ismail Sabri as no leader. He has been dismissed by social media as lacking in seriousness, firmness and determination and more noted for wasting much time on trivial, frivolous and vexatious matters.

It isn’t surprising that the Umno Special Meet on Sat 27 Aug 2022 jeered angrily when party president Ahmad Zahid Hamidi mentioned Ismail Sabri’s name. Zahid urged the Prime Minister to heed the party’s call on GE15. It was Umno’s strongest call, since the pandemic ended on Sun 1 May 2022, for the immediate dissolution of Parliament. See here.

Scores To Settle

Patently, Umno has been getting impatient on GE15, and with good reasons too. It can be argued if we take the cue from Zahid’s speech, that the party has “scores” — for want of a better term — to settle with any number of parties. Umno wants High Court Judge Nazlan and the Chief Justice to be brought before the Judicial Ethics Committee and sacked. The party also wants Attorney General (AG) Idrus Harun sacked.

The Umno President stressed clearly that the party wants to end the politics pervading the Attorney General’s Chambers (AGC) and the AG’s position, and the court system. The case was made for a Prosecutor-General and an AG having equal but separate jurisdiction.

The party sees the government, since GE14 on Wed 9 May 2018, obsessed with politically-motivated cases, political prosecution, selective prosecution and selective persecution.

Zahid implied that former Prime Minister Mahathir Mohamad had abused the legal system since even before GE14 by pushing for politically-motivated cases, navigating the court system for his benefit, and manipulating the media on charges in court. It’s an open secret that former Prime Minister Najib Abdul Razak, son of 2nd Prime Minister Tun Razak, has been the victim of Trial by Media from even before GE13 in 2013. Mahathir’s Narrative in the compliant media built up public perceptions against Najib.

It remains to be seen whether an Umno government in power, after GE15, will incarcerate Mahathir, 97, for alleged treason in Sabah and obstruction of justice in Malaya. See here.

Anwar Ibrahim and Umno

If Anwar Ibrahim had agreed to advise the AG to end politically-motivated cases, he would have been Prime Minister on Sat 21 Aug 2021. Anwar the political chameleon gave out mixed signals privately and publicly. In the end, Umno decided that backing Anwar would be at great risk with all sorts of unknown dangers lurking in the vicinity. Umno decided to back Ismail Sabri, a party vice-president. Anwar will not get a second chance even if Umno sacks Ismail Sabri. He suffers a trust deficit. See here.

The new government in Putrajaya after GE15, if Umno, may get the AG to respect indemnification and implicit Pardon for “acts in office” for the Prime Minister and Parliament. Indeed, indemnification and implicit Pardon, it can be argued, remain part of the basic features doctrine — whether written or otherwise — in the Constitution.

The jury is still out on whether indemnification and implicit Pardon for the Prime Minister and Parliament ever existed, and if they existed, were done away with by Mahathir. He’s notorious, based on his track record, for getting political rivals out of the way, if possible permanently, otherwise temporarily. The basic features doctrine cannot be amended or discarded.

Najib finally fell on Tues 23 Aug 2020 when he was carted away to jail for alleged abuse of power. His sentence reads 12 years, among others. He can be freed after eight years. Najib, as a political prisoner, should be under house arrest. It would be interesting to read what Commonwealth countries think of the fate that has befallen Najib and his plight behind bars. Many Commonwealth jurisdictions have strong rule of law traditions. See here.

Federal Court Review

Najib can file for Federal Court Review on the SRC case.

In the rule of law, the focus must first be on the manner in which a person was convicted and whether that conviction can be perfected in law.

If a conviction cannot be perfected in law, there has been no conviction and any conviction would be null and void and cease to exist as if there was no conviction. Based on Practice Directions, the conviction must be recorded immediately by the Judge in court after the sentence is pronounced. Even if the conviction has been recorded, it does not mean that it has been perfected in law.

There have been cases where lawyers discovered that the Judge forgot to record the conviction. In the end, the court had no choice but to free the convict.

Miscarriage Of Justice

Zahid isn’t willing to wait for eight years. He swore that he wants Najib to be Pardoned by the Agong as soon as possible. If Agong says there has been a miscarriage of justice, then the matter merits Pardon. Contrary to public perceptions, the Agong doesn’t run the bureaucratic gauntlet on Pardon. He isn’t bogged down by technicalities. He can exercise his discretion and even put the cart before the horse. Once the Agong decides on Pardon, all related matters fall into place. The Pardon would be nonjusticiable i.e. not for judicial consideration and resolution. See here.

According to media reports, Najib’s Petition for Pardon was already with the Agong. It’s not known how the Petition was structured. If it was about the RM42m SRC International conviction, Najib also has other cases in court. The Pardon for SRC won’t be the end of Najib’s problems with the law. If Umno seizes the reins of power in Putrajaya in GE15, and Zahid’s pledge on ending politics in the justice system comes true, Najib’s other cases would probably cease to exist.

There’s a case for Najib to seek Pardon — read for “acts in office” — for his Administration, 2009 to 2018, and his wife. All Najib cases would cease to exist as if they never existed. The court has no jurisdiction.

Patently, Pardon can’t be for wrongdoers unless they serve their sentence. In political cases, it can be argued, that Pardon may be for those wronged or those who may be wronged.

The tears of all those who attended the Special Umno Meeting yesterday is enough to tell that the party has had enough and they want justice for their fallen Umno leader, Najib.

Umno/BN Prospects In GE15

The reality may be that Umno/BN will return to Putrajaya after GE15.

Rural Malay in the Peninsula will only vote for Malay parties in government i.e. Umno and the Umno-led BN. Malay votes here may have returned to MIC and MCA since Hindraf may be in coma. It’s not clear whether Indians and Chinese in the Peninsula will vote for BN. It remains to be seen how urban Malay here will vote.

PAS may only pick up MP seats in Kelantan and Terengganu and probably some in Kedah as well.

PH parties are dependent on DAP. It’s not clear how DAP will fare against MIC and MCA.

Sabah and Sarawak have their own stories. They have always said, “Siapa menang — read Putrajaya — kami sokong”. (We will support whoever wins Putrajaya). Generally, they expect a Malay party or a Malay party-led coalition to win Putrajaya.

Putrajaya does not need support from both Sabah and Sarawak. If Sabah supports Putrajaya for example, the Federal gov’t is likely to listen to the Orang Asal in the Borneo Territories on the Malaysia Agreement 1963 (MA’63) and take a tougher line with the Sarawak government on NCR (Native Customary Rights) land as before GE14 when Najib was Prime Minister.

The Orang Asal in Sabah and Sarawak have always supported Putrajaya. They see Putrajaya as their only protection against local tyrants viz. Mustapha Harris, Musa Aman, Shafee and Taib Mahmud. All these leaders were removed by Putrajaya.

Orang Asal in Sabah are unhappy with PTI (pendatang tanpa izin or illegal immigrants) in the electoral rolls and Projek IC which saw Mahathir allegedly issuing IC to foreigners based on late registration birth certs. – NMH

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 is 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.

The post Umno In Tears, Jeers, But Party Ready For GE15 first appeared on NMH.

If you are feeling too peaceful, calm and in need of a bit of mental riot, here is a surefire way: check out the comment space of online news posts, especially those concerning very topical issues: lamentations by prominent figures and hotly debated events. The disgust emanating from responding to the news shared in social media platform like Facebook, especially by hordes of trolls and cyber troopers, seeping out of those vitriolic, poorly spelt comments might spill over and drive you to depression or kill some small animals.

If that is the case, then, a congratulations is in order – you have unwittingly become collateral damage (or intended victim, depends) to the surge of the trolls and cybertroopers, especially in this country. They are a familiar bunch: crawling all over the comment spaces, consisting of vengeful college students, or acerbic grandmothers and, who knows, perhaps quietly fanatical leaders rushing in with torches and pitchforks wearing Ku Klux Klan-ish masks of anonymity.

It is not surprising if Malaysians overall have been feeling the onslaught of these cyber-paper cuts. Indeed, several weeks back, Facebook announced that Malaysia has become a hub for troll farms, a discovery extolled in their Adversarial Threat Report and this begs the question: Why would an available-to-public-for-free social media site would want an adversarial threat report when its chief mode of group sized infection is making friends?

Anyway, the report noted that it has since taken down:

596 Facebook accounts, 180 Facebook pages, 11 Facebook groups and 72 Instagram accounts, one troll farm in Malaysia. In total, they had racked up approximately 427,000 accounts as followers on at least one of these pages, with 4,000 accounts as part of their Facebook groups and another 15,000 followers on their Instagram accounts.

Made in Malaysia

The Facebook warning comes from the appearance of the dreaded legion of trolls, especially the offensive and sometimes mercenarily enterprising cybertroopers – a term that was actually devised in Malaysia apparently, meaning, a “person who is paid to disseminate political propaganda on the internet, particularly on social media platforms”.

In fact, over here, several years back, it was the ruling party that was accused of deploying cybertroopers to glorify its component party, Umno specifically, But now, go to any posts by supposedly Barisan Nasional (BN) party-aligned news portals, and watch hate spill over at the comment section. The fact that they all somewhat sound alike, with similarly sounding venomous diatribes could only mean that they are part of those cyber troops at full functional mode.

What worked as public relations tool for BN, the cybertrooping, is now used as a method by the opponents to strip the glories, and worst, used instead for character assassinations; while demonising it and the component parties for anything that can easily be pilloried in the name of political correctness (racism, religious extremism).

Look, it is no surprise that the rise of the pro-opposition cybertroopers is parallel with the growing number of social media users in the country. Towards the end of last year, the Communications and Multimedia Ministry Secretary announced that Malaysia contained around 28 million social media users, a two million increase compared to 2020!

The latest Malaysian population is at 34 million, and social media users number for a staggering 84% of the population! That, of course, does not mean that there are 28 million folks are using social media. It could be one with multiple accounts, across various platforms.

Let us also not forget that the growth of social media is not necessarily because of love. Hate unites many too, of which Malaysians are not spared form. That is why our country still struggling to sell homemade products, not getting enough support for our athletes, and only recently a local film made a fantastic collection and yet still gets brickbats and criticised for all the wrong reasons.

This makes us easier to be rallied by hatred, than love. The Netizens, especially, can be cajoled and seduced by one holding that sceptre of united bitterness, usually by a public figure. In Malaysia, for instance, of late, there is no bigger troll in person than one Rafizi Ramli, the deputy president of Parti Keadilan Rakyat (PKR). His constant, consistent feeding of the same accusations, backed by (half-baked, semi-boiled) shreds of evidence have sent the trolls on a rampage all over cyberspace armed with links to the press statements and news by this Malaysian King of Troll.

The Rampaging Troll King

That title is self-inflicted. He had himself proudly claimed that his specific responsibility has been to hasut (instigate) the people. This troll Hydra is nevertheless the real-life re-imagination of the Terminator all out to destroy Najib Razak and the BN at all cost through his instigation and seemed to be proud of it.

The troll king himself runs a big data analytics company called not-so-subtly named, Invoke, for which he actually roped in former aide of Obama (remember him?) Andrew Claster, a sifu in the art of political persuasion and voter targeting. Invoke supposedly deals with big data analytics, a method of analysing complex data sets in order to make more informed decisions around the way they work, think and provide value to their customers.

In a news report, when asked if the big data analytics would be used to come up with personalised messages for prospective voters, Rafizi said it may not be necessary as the point of the exercise was to profile “marginal” and “persuadable” voters.

He means, of course, making public announcements, offering trailers, teasing, tantalizing the Netizens and further exacerbating the troll situation in the country. Currently, he is the sweetheart of the trolling mass, and in fact, is the very sweetheart of the Malaysian cyber-Hydra with those troll heads.

Going back to Facebook and the distaste over poor troll history in Malaysia, we must remember that online presence is now getting larger and larger in the Malaysian business landscape. Home-grown businesses are growing and expanding. There is a great growth potential for Malaysian e-commerce, limitless in fact, considering our colourful culture that gave way to an amazing array of products and services saw a healthy rise with the arrival of the pandemic, especially helping homes of many who have lost their jobs at that time. The potentiality extends overseas, across borders and over many continents.

But this teeming mass of trolls, the online pests, are going to be Brand Malaysia just like how Somalia is associated with pirates, are going to kill all that efforts the ordinary folks has put in on the online platform to make a living, and to prosper. One should not take the warning by Facebook lightly. We have a huge task ahead of us, in ensuring that we avoid feeding these trolls. Remember all those great stories, including that of the Hydra: when you no longer are able to finish cutting off that millions of heads of that monster, stab the heart. – NMH

About the writer: Rakesh Kumar is a writer, scriptwriter, and a film aficionado, who is four years and seven months clean and sober. And counting…

The points expressed in this article are that of the writer and do not necessarily reflect the stand of the New Malaysia Herald.

The post Trolls, Cybertroopers And The Hydra first appeared on NMH.

Mumbai-based FirstPost news agency has charged in an Article, “Depriving Najib Razak of fair trial may have ramifications for Malaysia”, that former Prime Minister Mahathir Mohamad may be the reason why Najib Abdul Razak, another former Prime Minister, appears to be having a tough time in court. See here.

Mahathir, added the Indian news portal in the Article on Sat 20 Aug, still wields control over the Malaysian Anti Corruption Commission (MACC), the Attorney General (AG) and the court system, among other Agencies.

“Mahathir and his compatriots believe that Najib’s incarceration would give them the political edge that they desperately need in the imminent GE15,” said the website.

It noted that Mahathir set about to appoint individuals across key institutions, including the Attorney General Chambers (AGC), MACC and the judiciary, just to name a few, after GE14 on Wed 9 May 2018. “This is exhibited in the surreptitious movement of the judicial bench.” 

Court System

The website details at length the court system.

Justice Mohd Nazlan Mohd Ghazali, who was a junior judge with no criminal case experience was appointed to hear the SRC case. This happened after several prominent judges had recused themselves for reasons of possible conflict of interest. 

There were even a few judges who were disallowed from adjudicating on the case given that their siblings and relatives were deemed to be Umno supporters, thereby creating the possibility of a potential conflict of interest.

It has been recently revealed that Justice Nazlan was actually involved in the very transactions that he was adjudicating on. 

Prior to his appointment to the Malaysian judiciary, he was the legal counsel at the very bank that propagated the creation of SRC International. He was intimately involved and personally present at various meetings that were held at the bank on this matter. He was further involved in the raising of a bond for SRC International while at the bank.

Documents purportedly from the MACC, leaked on social media by a renowned blogger, claim of a formal investigation and that there were indeed Malaysian Penal Code offences committed by Justice Nazlan.

In addition, there has been a slew of recent social media revelations that the husband of the current Chief Justice of Malaysia (Tengku Maimun Tuan Mat) Zamani Ibrahim, was an active member of Bersatu, a party formed by Mahathir just before the general elections. Screenshots of Zamani’s social media postings berating Najib and his reforms have also been revealed.

Senior Umno leaders have voiced their concerns that Najib may not be given sufficient room to prove his innocence. They have further emphasised the Party’s views on the revelation of Justice Mohd Nazlan Mohd Ghazali and his involvement with SRC International seriously as he had adjudicated and delivered the verdict and sentence against Najib.

The Umno secretary-general has demanded the MACC issue a statement on the alleged investigation on Justice Nazlan. He requested the MACC to deny or verify the social media report stating that the judge has erred.

Additionally, the former vice-president of Parti Bumiputera Perkasa Malaysia (Putra), Hamidah Osman, lodged a police report against Tengku Maimun and the Chief Justice’s husband. She has requested that the police investigate the viral social media allegations involving Tengku Maimun’s husband. If the allegations are true, Hamidah demanded that Tengku Maimun should recuse herself or be dropped from leading the judges in Najib’s case.

Najib’s Reforms Undone

The website dives into further details on Mahathir.

Mahathir allegedly systematically undid the reforms introduced by Najib at the peril of Malaysian society. “This included the GST and unilaterally cancelling key multilateral projects with specific foreign governments,” said the website. “He further sought to undermine the social inclusion process.”

In particular, said the website, Mahathir suspended Najib’s blueprint for the Indian community. “He made outrageous statements, including the one at the UN General Assembly against India in 2019.”

Najib’s reforms during his Administration from 2009 to 2018 were opposed and derogated by Mahathir who went on to partner with the fractious Opposition. He weaponised 1MDB and SRC International, projects initiated by Najib, and the various reforms including the introduction of the GST as a rallying call to topple Najib and Umno.

Vindictive Politics

Mahathir, who is 97 years, undertook a second stint as prime minister of Malaysia in May 2018. This then saw an era of both vindictive and uncertain politics. 

Despite his draconian nature, Mahathir was unable to hold on to the prime minister’s position given the fractious and divergent nature of his ruling coalition. This has led to another two governments being formed in less than two years, resulting in Malaysia exhibiting uncertain political stability.

Malaysia’s GE14 on Wed 9 May 2018 was indeed a watershed moment. After a single party rule since independence in 1957, the dominant political party, Umno, lost power.

Progressive Reforms

For nine years prior to the watershed moment, Malaysia under the administration of Najib witnessed some of the most progressive reforms since independence. The abolishment of the draconian Internal Security Act was at the forefront of these reforms. Malaysia further restructured its fiscal base by introducing the GST. The nation experienced steady, uninterrupted GDP growth and witnessed the longest bull-run in its stock exchange driven by strong foreign direct investments (FDI) and domestic direct investments (DDI).

Additionally, Malaysia had redefined its foreign policy to build stronger bilateral ties with specific regional and global partners. This included Saudi Arabia, United Arab Emirates, China, Singapore and India. This new era in foreign relations gave Malaysia the opportunity to attract stronger investments and to introduce path-breaking projects like the world’s first cross-border high-speed rail network that was to connect Kuala Lumpur with Singapore.

Furthermore, Najib had overseen a transformation of the nation to embrace its diversity and to harness it as a propelling force. His 1Malaysia rally was designed to make Malaysia a more inclusive society and move away from the politics of old, crafted by Mahathir who weaponised race, religion and ethnicity against the people of Malaysia.

The 1Malaysia platform was meant to economically and socially rejuvenate marginalised communities, namely the Malaysian Indian community. This community was particularly marginalised by the Mahathir-doctrine. A community that was displaced from the traditional plantation sector, a safe-haven for generations of Indians who willingly migrated, or who were brought over by the British. Najib was the first Malaysian prime minister to actively design and propagate a blueprint that would transform this community socially and to ensure higher, sustainable income levels.

Najib In Court

Since the beginning of the SRC International proceeding at the Kuala Lumpur Sessions Court on 4 July 2018, Najib has faced several crucial challenges in the bid to clear his name from three counts of criminal breach of trust (CBT) and one count of power abuse in relation to the misappropriation of RM42 million belonging to the subsidiary of 1Malaysia Development Berhad (1MDB).

The case was transferred to the Kuala Lumpur High Court on 8 August 2018 and, he was slapped with additional three counts of money-laundering charges. The trial began on 3 April 2019, after High Court Judge Nazlan dismissed Najib’s application to declare the seven charges against him defective.

Najib entered his defence on 3 December 2019 and the defence closed its case on 11 March 2020 after hearing from 19 witnesses. On 28 July 2020, the Kuala Lumpur High Court found Najib guilty on all seven counts of charges.

He was sentenced to 12 months in jail and RM210 million in fine, however, on 19 October 2020, Najib filed for a petition of appeal, and it was scheduled to be heard at the Court of Appeal on 5 April 2021.

After 15 days of appeal proceeding, on 8 December 2021, the three-member bench led by Court of Appeal Judge Abdul Karim Abdul Jalil along with Has Zanah Mehat and Vazeer Mydin Meera unanimously delivered its decision to uphold the Kuala Lumpur High Court’s conviction and sentence against Najib.

On the same day, Najib filed an appeal at the Federal Court. On 25 April 2022, Najib filed a petition of appeal citing 94 grounds on why the Court of Appeal had erred in his judgement. The Federal Court then fixed the hearing of his SRC International appeal from 15 August until 26 August.

On 31 May, the British Queen’s Counsel, Jonathan James Laidlaw, filed an application to the Kuala Lumpur High Court to represent Najib in his final appeal at the Federal Court. However, on 21 July, this appeal to be admitted to the Bar was summarily rejected.

On 10 June, Najib filed a motion to adduce fresh evidence which could allegedly prove that Justice Nazlan should have recused himself due to serious conflict of interest which has violated his rights to a fair trial. He also appealed for a retrial before another High Court judge.

Then, on 25 July, Najib appointed a fresh team of lawyers to represent him given that the British Queen’s Counsel, Jonathan James Laidlaw’s application to be admitted to the Malaysian Bar was rejected. This fresh team of lawyers included several senior counsels from India.

On 26 July, Najib’s newly-appointed counsel filed a written application to the Federal Court to delay the trial, which was scheduled to begin in three weeks. Nevertheless, the Federal Court rejected the request three days later during the case management and decided to proceed with the appeal as scheduled.

On Mon 15 Aug, Najib’s team filed an application to adduce new evidence including the conflict of interest and lopsided judgement involving Justice Nazlan that was not granted to the defence during the trial. The defence team said that Najib was not aware that Justice Nazlan was indeed involved with SRC International through his association with Maybank as its general counsel.

Unfortunately, on Tues 16 Aug, the five-member bench of the Federal Court led by Chief Justice Tengku Maimun Tuan Mat unanimously dismissed Najib’s request to adduce additional evidence and to postpone the final appeal proceeding on the SRC International funds misappropriation trial.

During a news conference at the lobby of the court on the same day, Najib’s defence team expressed their disappointment with the verdict delivered by Tengku Maimun.

The other judges who jointly heard the case were Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and three Federal Court judges, Nalini Pathmanathan, Mary Lim and Mohd Zabidin Mohd Diah.

On Thurs 18 Aug, Najib’s second request to defer the trial was rejected yet again by the five-member bench.

Najib’s lead counsel then declared his withdrawal from the case because he was not ready to represent the case given the lack of time allowed by the court for him to review the voluminous set of documents and evidence in order to structure his arguments. However, his bid was rejected by the court on the grounds that Najib would be left unrepresented. The latest developments raise the questions if Najib will be facing the trial unrepresented.

Political Instability

The current political instability in Malaysia has created a lack of confidence and foreign and domestic investment outflow. Despite the rise of commodity prices such as palm oil and petroleum, Malaysia is still trapped in a serious economic spiral.

The nonagenarian, Mahathir, is said to have orchestrated this political stalemate and continues to propagate the protracted instability in Malaysia. This political quagmire would have dire consequences on Malaysia and its regional partners given growing global and regional tensions.

This comes in the backdrop of a looming general election.

Lightning Rod

Despite his legal constraints, Najib has emerged as a lightning rod that has begun to attract a much larger following amongst the Malaysian rural and semi-rural vote-bank.  His party, Umno, is expected to make a large come-back based on the various recent bye-elections and state elections that they have won handsomely based on his personal ability to attract the masses.

The very tenet of fair justice for all, enshrined in the Malaysian Constitution is in question here. Najib not being able to receive a fair trial is of grave concern. It may not just have ramifications on a single individual’s future, but the very future of an entire nation.

“The worst form of injustice is pretended justice.” – Plato — by Anand Murgun

The post Mumbai-based Media Charges Mahathir Wields Gov’t Levers Against Najib first appeared on NMH.

Democracy, according to spiritualist, mystic and yogi SadhGuru, only works if the people participate. Democracy, he cautions in YouTube videos, isn’t about voting once every five years and going home and sleeping.

For those unfamiliar, SadhGuru runs the Isha Yoga Centre worldwide and mostly shuttles between India and America. He gets invited to world meets on everything and anything. He claims that he sat down on a rock outside town one day for no reason in particular except that he had four hours to kill between business meets. He was enlightened and opened his eyes from meditation. He appears to be able to answer any question put on anything. He’s known for falling back on the reality that nothing exists.

SadhGuru urged the people to form Movements on issues and take to the streets if the government closes the door to dialogue and/or the court denies them a hearing. Street movements, he pointed out, will have an impact on election results.

Patently, the concept of government was “evil” — and by extension, the court since the latter isn’t about ethics, moral values, theology, sin, God, justice or truth but only about the rule of law — and on paper, they (government and court) can do anything they want unless restrained by the people taking to the streets. Ironically, when the government runs amok, in law the court was expected to restrain it.

Surprising

It’s surprising that so far no one has taken to the streets on the Federal Court allegedly giving the short end of the stick to former Prime Minister Najib Abdul Razak on the RM42m SRC International case in Appeal. The short end of the stick was a violation of the rule of law, the basis of the Constitution. The Federal Court cannot belabour in the delusion that the letter of the law, by itself, is the law. It isn’t law at all.

In 2018 in retrospect, on 08 Dec, Wikipedia wrote that the Anti-ICERD (International Convention on the Elimination of All Forms of Racial Discrimination) Rally or Himpunan Aman Bantah ICERD (Bahasa) Rally of thousands was held at Dataran Merdeka, Kuala Lumpur, by various Opposition political parties and NGO.

The Rally, estimated by police at 50K, by organisers at 500K and by the Opposition at 1m, was held despite the Prime Minister’s Office announcing earlier on Nov 23 that it was withdrawing from the ratification of the Convention. The Convention, even if ratified, wasn’t a law in Malaysia unless applied in national law.

The issue in the Convention wasn’t the Special Position by way of reasonable proportion in the Federal Constitution — note it’s not the Malaysia Constitution — but it’s a controversial observance in the breach by the government paying lip service to the rule of law and acting with impunity. The RM42m SRC International case on abuse of power comes to mind on the AG acting with impunity.

Najib’s Losing Battles

Najib, away from the Rally on the Convention, has been fighting losing battles in court, beginning with the SRC case. See here, here and here.

Najib can lodge a Petition for Pardon with Istana Negara and Agong for the years, 2009 to 2018, when he was Prime Minister.

He should not mention court cases in an early Petition. It would be premature to mention the tainted High Court Ruling, mistrial and miscarriage of justice. These areas can be mentioned in a late Petition i.e. if push comes to shove and Najib has to count even one day behind bars after Federal Court Review. See here.

Pardon isn’t for wrongdoers. It’s for those who have been wronged and those who may be wronged. In the US, Pardon was granted even before someone was brought to court or may never even be brought to court. President Trump, for example, pardoned his daughter Ivanka and her husband Jared Kushner just before leaving office. It’s unlikely they would have been dragged to court on anything. It was about Executive Privilege. No one in America screamed that the Pardons were nepotism.

Agong may be in the same position as the US President and other heads of state on Pardon, among other things, especially given the fact that no novel developments in law take place in Malaysia and therefore there are no related declarations on law. I have written previously, more than once, that Agong should Pardon the Prime Minister, Bank Negara Governor, the Chief Secretary to the government and Cabinet Secretary, and heads of government depts when they leave office. That would prevent the AG from abusing his powers and/or framing charges in a way to “fix” them. The AG can’t be allowed to run amok in court.

It can be argued that perhaps by omission and commission, that perhaps overtly and covertly, mistakes were made in the High Court and court of appeal. Let’s not go there. However, it’s time to separate the men from the boys on the Way Forward, for the finality of closure.

Movement On The Streets

If there’s a Movement which takes to the streets on the way the Federal Court may be presiding on the SRC case, it would be on Judge Nazlan emerging as the elephant in the room.

The Federal Court sees no elephant, only hearsay, no conflict of interest, and Ruled the Witnesses on new evidence about privileged communication covered by the Official Secrets Act 1972. The unanimous Ruling was a violation of the rule of law. It’s inconceivable that there was no dissenting judgment.

The OSA isn’t the stumbling block. Privileged communication remains only under OSA, not during cross-examination in court. The AG cannot sue the court on OSA and Witnesses being party to alleged illegalities. The Witnesses can be cross-examined on a willing questioner and willing answerer basis. There’s no need for Witness Statement and Affidavit in Support lest they violate the OSA.

The Apex Court held that Judge Nazlan’s involvement in SRC – described as strategic resources and not SRC — before the SRC case was publically known, covered by the media from early days, and should have been raised by Defence in the High Court. It implied that it was too late now when there had been finality of closure on Judge Nazlan not recusing himself since Defence didn’t raise the issue back then, and can’t do so now in the Federal Court. The Apex Court didn’t describe Defence efforts as “litigation by ambush”.

The Defence probably didn’t realise the full impact of Judge Nazlan being in “conflict of interest” on the SRC case until, according to the media, anonymous packages with allegedly incriminating evidence landed on Najib’s doorsteps. The former Prime Minister then connected the dots on admissible hearsay, albeit too late according to the Federal Court in looking the other way on Judge Nazlan, by Ruling that the new evidence had nothing to do with the main RM42m charge and was therefore irrelevant. See here and here.

The Federal Court did not differentiate between admissible hearsay and inadmissible hearsay and the fact that the new evidence wasn’t about the RM42m. The Apex Court, with a straight face, ruled that Judge Nazlan wasn’t caught in a conflict of interest situation and that Najib’s Application on the matter was hearsay. It’s not hearsay if there’s corroborative evidence under the Evidence Act 1950.

The Federal Court may be looking at the SRC case through the wrong end of the municipal drainpipe by falling back on bundle of authorities on case law and technicalities to deny hearing Applications. It’s the merits of the case in court that matters.

Abuse Of Power

The Federal Court wants Defence to focus on rebutting Judge Nazlan’s take in the High Court Ruling on abuse of power. Judge Nazlan didn’t completely define abuse of power with reference to the SRC case.

The Federal Court, based on Oral Submission by Defence, can and may Rule mistrial in the High Court, set aside the High Court and court of appeal Rulings, and send the SRC case back to the High Court to be heard before a new Judge or hear the case itself.

The Apex Court, in dismissing the Application on Judge Nazlan as conflict of interest, said that it would look at the High Court’s take on the abuse of power and that the Defence still has a chance.

It’s unusual that the Federal Court said this. It’s advising the Defence on the Way Forward when it was degenerating into the politics of distraction, disruption and obstructionism. It’s not surprising the Prosecution saw no reason to protest and was prepared to be in cahoots with the Federal Court as a party to illegalities i.e. denying Defence hearing on Judge Nazlan.

Judge Nazlan in obiter dictum — it cannot be part of the Ruling — alleged that Najib had “overarching control” in SRC and was the “shadow director”. Even if true, Najib could not have acted alone.

After saying that “Najib did not return the RM42m”, Judge Nazlan did not suspend the Ruling. That was violation of the principles of natural justice i.e. one of the three criteria in law, the other two being common sense and universal values. Judge Nazlan could have asked Najib to deposit the RM42m in court, i.e. if he still has the money with him, and allowed SRC International to prove that they are eligible to claim and entitled to hold the money.

Shadow director may exist in the Companies Act. However, the Act cannot violate the Doctrine of Separation of Powers and tread on Executive Privilege and the constitutional reality that the Prime Minister and Parliament stand indemnified for acts in office.

The High Court Ruled that a prima facie case had been made out. The court probably fell back on the Raja Azlan Shah case law on abuse of power on the prerogative and discretionary powers of government and management and read it in isolation.

Najib has already gone after the Attorney General, separately, for abuse of power on the way the latter framed the SRC charges i.e. mixing fiction with fantasy. He can only strengthen his case even further now against the AG in the wake of the Federal Court defending Judge Nazlan on not recusing himself in the High Court. It was a breach of ethics on the part of Judge Nazlan and abuse of power by the AG.

There’s case law by the Federal Court on the AG abusing his powers in the Asian Arbitration case. There was immunity against prosecution. The prosecution can proceed if immunity could be waived. However, it couldn’t be done. If the Director of Asian Arbitration had waived immunity, paving the way for prosecution, it would have been a different matter altogether. Except perhaps in Japan, no Director would suddenly be stricken by conscience and embark on kamikaze and/or commit hara-kiri after true confession.

Najib Has Immunity From Prosecution

In the SRC case, and all other cases against Najib, he did not waive “immunity from prosecution”. His immunity can only be waived by himself. No court can remove the immunity. It’s nonjusticiable i.e. not for judicial consideration and resolution.

The Prime Minister and Parliament stands indemnified for acts in office. This indemnification cannot be waived by the Prime Minister and Parliament. Again, no court can remove the indemnification. It’s nonjusticiable.

We don’t even have to go into the Doctrine of Separation of Powers and a whole host of other mitigating factors on immunity and indemnification . . . the Cabinet System based on the consensus principle and collective responsibility, the prerogative and discretionary powers of government and management, organisational systems and structures being inherently based on compartmentalisation — i.e. no one person knows everything — which ensures checks and balances for transparency and accountability of the system and structure.

The court of law, based on immunity and indemnification, may have no jurisdiction on the RM42m SRC International case.

The court is about what is before it.

The court will not say “no jurisdiction”.

Defence must say it.

The Prosecution might say that Najib waived immunity and indemnification by mounting Defence.

Rule Of Law

If there’s Movement on the streets on Judge Nazlan, the people should demand that the Federal Court uphold the rule of law.

CJ, based on a police report reported by the media, should be asked to recuse herself. She can and may refuse. Then, Agong would have to come in.

If one million people take to the streets on Judge Nazlan, the Federal Court, AG and MACC will quickly come to their senses.

The people need to familiarise themselves with the crux of the SRC case. It’s not about the charges.

Judge Nazlan will have to be brought before the Judicial Ethics Committee.

Again, Agong will enter the picture.

The people must not gather in the streets in support of Najib. In law, the Bebas (Free) Najib movement in the streets cannot free him. The Movement will only make Najib look bad in the eyes of the people. Najib can only be freed by the court. Many people tried the Bebas Movement for Anwar Ibrahim and Harun Idris. They failed. The duo went to jail anyway.

The people can only gather in the streets against Judge Nazlan.

If the nature of human relationships needs to be regulated, it can only be done by the rule of law or by out-of-court settlement, Pardon, immunity, indemnification or by Movement in the streets.

In the rule of law, there’s a 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.

The letter of the law, by itself, is black and white. Again, it isn’t law.

The spirit of the law comes in various shades of grey. There are exceptions, qualifiers, caveats, ifs and buts, and special circumstances.

Opinion isn’t law. Only the court can declare law. – NMH

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.

The post It’s Surprising People Didn’t Take To The Streets On Judge Nazlan first appeared on NMH.

All the earlier media reports on Najib’s new defence team withdrawing from the RM42m SRC International case have come true.

The new lawyers may be taking the cue from the 20-Page badly-written Federal Court Ruling on the Motion for a new Trial. The court system can be saved if the rule of law prevails. See here and here.

If the Federal Court upholds the court of appeal on the High Court conviction, without giving the Defence a hearing, it would be a violation of the rule of law. The court of appeal saw no reason to interfere in the High Court Ruling on the grounds that there were no errors in facts and no errors in law.

Former Prime Minister Najib Abdul Razak can file Originating Summons at the High Court for declaration on a point of law on the Federal Court Ruling on the court of appeal on SRC without the Defence being heard. The High Court would refer to the Federal Court. There’s no constitutional court in Malaysia. The Federal Court can sit as the constitutional court.

Declaration would not be remedy. It may be Advisory Opinion for cases in court.

The Federal Court said in the 20-Page Ruling that it would visit Judge Nazlan’s take on the abuse of power, among other charges in the SRC case. The Apex Court can ask the Defence to make an Oral Submission on only one point: abuse of power. The Federal Court, based on the Oral Submission, can set aside the court of appeal take on the High Court Ruling, and declare the High Court conviction a mistrial on the grounds that there was no prima facie case.

The charges, if defective, may have been based on a fatal flaw in law.

The High Court Ruled that a prima facie case had been made out. The court probably fell back on the Raja Azlan Shah case law on abuse of power on the prerogative and discretionary powers of government and management and read it in isolation. The High Court was oblivious to the Doctrine of Separation of Powers, the Cabinet System based on the consensus principle and collective responsibility, the concept of organisational structures is based on checks and balances arising from compartmentalisation i.e. no one person knows everything, and due diligence and forensic accounting on the money trail.

There are related areas like Article 153, the New Economic Policy (1970 to 1990), quota system, Article 160(2) on Definition of Malay, and political donations and civil action on money laundering.

Najib remains the only person charged in the RM42m SRC International case. It seems that no one aided and abetted him on the RM42m and that no one was involved in a conspiracy. Even if Najib had “overarching control”, he could not have acted alone.

How Discharge Works

Although anything may be possible in court, it’s only Najib who can discharge lead lawyer Hisyam Teh. The court merely records the discharge. The entire defence team goes once the lead lawyer withdraws from the case and informs the court that he has discharged himself.

In law, the Discharge in fact works in two ways. The Client can discharge the lawyer. Alternatively, the lawyer can discharge himself or herself. The Court allows and records the discharge. What the CJ was saying is that the court won’t record the discharge. In law, she can’t say that the discharge isn’t allowed especially in criminal cases. In civil cases, discharge may not be possible until commitments made by the lawyer who has taken fees are fulfilled.

Najib’s Hopeless Situation

The 20-Page Ruling tells the new lawyers what lies ahead for them. It may be a hopeless situation. The Federal Court Ruling on the Motion for a new Trial may already have been written before the Defence was heard.

Patently, the new lawyers have no choice but withdraw from the SRC case. After all, they only just took up the case. After today’s hearing, Najib issued a four-page media statement saying, among other things, that his right to life and liberty is at stake.

They had expected the Federal Court to bend over backwards and be fair to ensure the rule of law is upheld. Instead, the Federal Court appears to have read only what the Prosecutor submitted. The court implied that it sees no reason to read Defence Submission or even read them at all. There’s no point being in court if judges don’t read.

SRC may be no exception. There has been widespread speculation for years that judges don’t read. The court clerks may read. Judges may be just listening to examination in chief, cross-examination, reexamination, oral submission and then Ruling. That’s tantamount to a miscarriage of justice and merits Pardon.

One judge told me out of the blue, “I read your case”. Why should he tell me that he read my case? He’s supposed to read my case. His statement implied that judges don’t read.

Finality of Closure

The Federal Court said there was finality of closure in the High Court on Judge Nazlan. Although only the court can bring closure, finality of closure comes after Federal Court Review, not after High Court. If there was finality of closure after the High Court, why did the case go to the court of appeal and is now in the Federal Court?

Unfortunately, the Umno statement on the new Trial did not mention the finality of closure. See here

If a case can go back and forth, it should be allowed to do so. Otherwise, it would be a violation of the rule of law. It’s tantamount to a miscarriage of justice which merits Pardon.

SRC Case In The Social Media

The following FB post in an Australian lawyer’s Timeline discusses Najib’s SRC case from different angles. The Klang-born lawyer blogs as Gopal Raj Kumar (not his real name). Coincidentally, he is a relative of mine too.

I am posting unedited.

Mansor bin Puteh: Can’t Hearsay evidence can be resubmitted if documents are verified to be true copies… Was it meant to be a good suggestion?

Gopal Raj Kumar: Mansor Bin Puteh, Hearsay can be admitted into evidence providing that the maker of the hearsay statement and his evidence is available for examination and cross examination. There is admissible hearsay and inadmissible hearsay. Much depends on the quality and relevance of that evidence it purports to be.

Mansor bin Puteh: Gopal Raj Kumar, so the judgment did not spoil the show after all!

Gopal Raj Kumar: Mansor Bin Puteh, The judgment was flawed because the processes that led to the judgment was flawed at inception.

There are many issues which should have been re examined and reviewed for a lack of understanding, or then evidence itself and how the discretion of the judge ought to have been applied in these matters.

More importantly the fact that if Najib was implicated in the commission of the crimes he was charged with, they could not have safely convicted him because evidence of a conspiracy involving, Jho Low (undisputed) and Zeti Aziz was cause enough for the court to re open or to dismiss the case and call for a retrial.

When three people are accused of assaulting a man killing him, one of them is caught, the other two abscond, you can’t convict the man you’ve arrested. Why? There is no evidence as to who caused the fatal blow that killed him. The other two like Jho Low, Zeti and in fact even Goldman Sachs were all culpable.

Till all the facts have been established beyond reasonable doubt (and the benefit of the doubt belongs to the defendant – in this case, Najib) the case cannot be established.

He can be charged with other forms of misfeasance like negligently participating in a scheme or schemes which cause the national treasury to lose money but not on the charges he faced. There is sufficient doubt about his guilt on those charges.

Moreover no one has examined closely the constitutional impacts of charging a PM for acts in office for which he is indemnified. To put it crudely, if he has to be charged for what he did in office, Mahathir can and must be charged and tried for losing MYR30 billion in FOREX failures, in the Petronas scandal and in the Bank Bumi and Tin scandals which caused Malaysia tens of billions of dollars.

If I was asked to defend Mahathir in such a situation, the first thing that would come to mind in his defence would be the indemnities he and parliament are entitled to for what they did in office. That’s why those indemnities are there.

Mansor bin Puteh: Gopal Raj Kumar, I mean the documents implicating Nazlan was deemed hearsay. Surely documents cannot be hearsay as they are legit.

Gopal Raj Kumar: Mansor Bin Puteh, It is not hearsay if the maker of the statement in the document can attest to the veracity of the statement and document being correct. Otherwise if the document (say like a Picasso) is found by an expert to be his work it is admissible even though Picasso is not around to attest to the authenticity of his art. So yes in short you are correct. We live in strange times.

Lanunsabah: The case is flawed even at the beginning … The case was registered as SRC AMLA case against Najib but the money was not from SRC and the company that deposited the money never claimed back the money.

The company’s directors were never asked why they deposited the money in the first place. The worst thing is that the whole conviction was based on hearsay without the person produced in court. The presiding Yang Arif came up with his own conclusion without looking at all the witnesses statements and cross examinations.

The main culprits were never brought to court but they convicted the person that they accused of. The AG must be held responsible for all of this prosecution and persecution.

Gopal Raj Kumar: Lanunsabah, I think you understand the flaws better than most.

Lynda Wong: Lanunsabah, No need for prosecution witnesses when their testifying has no merits in the judgement as script already written beforehand.

Police Report

In a separate, and related development, the social media has reported that a police report has been lodged against the CJ on her husband’s alleged involvement as a “fixer” in court cases. Apparently, he was in court two days ago when the CJ and panel of judges rejected Najib’s motions.

If true, the CJ should recuse herself. The CJ can and may refuse. Then, Agong would have to come in after the Judicial Ethics Committee meets on the CJ.

Here’s the link to the FB post: Zamani Ibrahim

Here’s another FB post which helps keeps things in perspective: Nabeel Naqie Six

A five-member Federal Court bench led by Chief Justice Tengku Maimun Tuan Mat is hearing the Appeal by Najib. Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, and judges Nallini Pathmanathan, Mary Lim and Mohamad Zabidin Diah make up the Panel.

Najib’s legal team includes lawyers Zaid Ibrahim, Liew Teck Huat and Ruben Mathiavarnam. Hisyam Teh Poh Teik is lead lawyer.

Lawyer V Sithambaram, who is prosecuting under a special licence issued by the attorney-general, is assisted by Donald Joseph Franklin, Sulaiman Kho Kheng Fuei and Mohd Ashrof Adrin Kamil. – NMH

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.

The post Najib’s New Defence Team Had Reasons To Withdraw, File Discharge first appeared on NMH.