COMMENT and ANALYSIS by Joe Fernandez
At the very outset, it must be stated, that Opinion isn’t law. Only the court can declare law.
Parliament makes laws but cannot declare them. If not for the Opposition, to digress a little, Parliament would be the pits.
No Parliament can take away the judicial power of the court or codify law in such a way that it leaves no room for interpretation. That’s inherent in the basic features doctrine, implied if not written, in the Constitution.
The Doctrine of Separation of Powers presides.
Having said that, it can be conceded that abuse of power is a legal minefield.
No court will go into the prerogative and discretionary powers of government and management (it covers private sector as well) unless “abuse can be proven”.
There’s case law from Raja Azlan that states that “prerogative and discretionary powers are not unfettered if abuse can be proven.”
Abuse of power cases cannot be heard if the court cannot go into the prerogative and discretionary powers of government and management.
The court, generally, avoids abuse of power cases like the plague, and rarely, if at all, considers such cases, and that too, grudgingly.
In matters involving Executive privileges, the court cannot go into abuse of power cases since the Doctrine of Separation of Powers stand in the way.
Besides, no court will go into the prerogative and discretionary powers of government and management.
The High Court and Court of Appeal Rulings allegedly remain tainted by highly personal and offensive remarks by the four judges. Read the Rulings.
Tainted Rulings merit Pardon for miscarriage of justice.
The two Rulings also went beyond the Submissions in court and even at a tangent.
These are errors in law.
They merit Pardon based on miscarriage of justice.
Rulings should be based on decisions made, through Submissions, by the parties in dispute on issues in conflict.
Elsewhere, on a separate but related matter on miscarriage of justice, the jury may no longer be out on “prejudice and bias, selective prosecution, selective persecution, and Trial by Media” on the Najib case.
We don’t have to wonder what happened to the RM4b. The matter wasn’t in court.
Only KWAP may know what happened to the RM4b. They are not telling. The entire Board and Management should be sacked immediately.
A Royal Commission of Inquiry (RCI) should be set up on the RM4b.
The court should give the benefit of the doubt to Najib on Director and Shadow Director based on the Test of the Burden of Proof in criminal cases, “beyond reasonable doubt.”
If it’s true that Najib used RM42m for his “personal benefit and political purposes,” and not for corporate social responsibilities, no evidence was produced in court on his personal involvement to the extent of RM42m.
No Personal Benefit
In fact, evidence was produced in court on who received monies from Najib and for what purpose. It was not for his personal benefit and political purposes.
It’s clear that Najib did not use the RM42m in toto for his personal benefit and political purposes.
Based on this fact alone, the issue of personal benefit and political purposes to the extent of RM42m, does not arise in law.
The RM42m charge relating to personal benefit and political purposes is flawed.
It’s unsustainable and falls apart. The related charges also cannot stand.
If it’s true that Najib used some of the RM42m for his personal benefit and political purposes, the matter was not in court.
The only matters in court are the charges.
It would be unsafe in law to convict Najib on the RM42m. The main charge is a fatal flaw in law.
In law, disproportionate punishments are unlawful.
The punishment must fit the crime.
What does four judges bla bla bla mean? It means nothing.
It was Chief Justice Richard Malanjum who cautioned the legal fraternity and court, based on his personal experience with them, that the “letter of the law” by itself isn’t law.
In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law, read with the letter of the law.
Rule of Law
The rule of law isn’t a legal term, it’s political.
The Constitution isn’t law, but as the ultimate political document, setting out the governing institutions of state, it has force of law and hence emerges as the supreme law of the land.
Force of law and law aren’t the same.
Force of law is similar to Adat — customary practices — international law (customary international practices on human rights), customary and industry practices and even a Company’s own internal procedures and practices which don’t violate law, and administrative laws (not law at all, but subject to judicial review).
The spirit of the law is always read with the letter of the law.
Based on what Malanjum said, it can be implied that the legal fraternity and the court are often unable to go beyond the letter of the law.
In that case, we have the same legal system that exists in China, i.e. the law of the jungle based on making up stories as we go along, rule BY law and rule BY Man.
Where’s the spirit of the law in Najib’s case?
Circumstantial evidence is inadmissible in criminal cases.
Beyond Reasonable Doubt
The Test of the Burden of Proof in criminal cases is “beyond reasonable doubt”.
Therein lies miscarriage of justice which merits Pardon.
The court in Malaysia isn’t like that in authoritarian Singapore but belabours in other ways in the delusion that the letter of the law is the sum total of the rule of law.
The court is only about law, not truth. That’s a principle in jurisprudence (theories, principles and maxims in law).
The court isn’t about ethics, moral values, theology, sin, God or justice.
Those are principles in jurisprudence.
The Judiciary is not another government department subject to the Executive. The Federal Court would soon be ruling on the matter. It’s highly unlikely the court would go against itself unless, in a moment of insanity, it rules based on the letter of the law only.
The CHALLENGE by an Australian lawyer in LinkedIn . . .
A lawyer — name witheld — in Brisbane, Australia, has been urging at least one lawyer in Singapore or Malaysia to rebut Joe Fernandez on the Najib case.
Just ONE lawyer will do, he posted in LinkedIn.
The lawyer didn’t rebut Fernandez but thinks Pardon implies remorse based on guilt.
The writer begs to differ.
“Remorse and guilt do not enter the picture on Pardon.
“Pardon is solely based on miscarriage of justice. Don’t say there was no miscarriage of justice in Najib’s case.”
In jurisprudence, he added, miscarriage of justice is even more important than criminal law.
If even ONE lawyer can’t rebut him on the Najib case, perhaps CJ Richard Malanjum and AG Tommy Thomas were right on lawyers, the legal fraternity and the court in Malaysia. – New Malaysia Herald
About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.
The points expressed in this article are that of the writer’s, and do not necessarily reflect the stand of the New Malaysia Herald.