Najib can probably head Federal government again before GE15, if not after.
In law, no Prime Minister in the world would be dragged to court while in office. Conventions, the working of the Constitution, are against it. However, the PM may risk being dragged to court if he first steps down.
Conventions are not law.
No court will consider Applications on Conventions as it’s only about law.
The rule of law is the basis of the Constitution which the court would respect, honour, uphold and defend in its interpretation on the intentions of the framers and Parliament.
The Attorney General (AG), while appointed by the Agong, comes recommended by the Prime Minister and falls within his purview. The AG wears many hats. He’s legal adviser to three parties viz. government, the chief executive and the head of state.
On paper, the AG has “independence” as the Public Prosecutor.
If a Prime Minister finds himself in court after he steps down, probably following election defeat, the case/s against him would be immediatedly put on the backburner if he suddenly returns to office. The AG would feel dutybound, and indeed morally obliged, and retracts the case/s. The court would put on blinkers. It would not ask the AG to explain.
No Reason To Tell Court
The AG will see no reason to tell the court on the “special circumstances” which had arisen since a case or cases against the “PM out of office” were last heard.
Also, the question of the court ruling on the matter does not arise. No such ruling would be sought.
Alternatively, the AG can resign for having commenced the prosecution of the newly-returned PM while the latter was out of office. The PM can recommend the Agong appoint a new AG. The new AG can exercise his prerogative and discretionary powers, accordingly, under Article 145 (3).
These are not novel developments for the court to declare them as law. These are within the prerogative and discretionary powers of government.
The Doctrine of Separation of Powers presides over the three arms of government — legislative, executive, judiciary — each acting as check and balance on the other two arms.
If there has been abuse, in the exercise of his duties, the AG risks being dragged to court by any number of parties, including the Bar Council.
Court Cannot Oppose
There’s always a first time. Having said that, again, the court cannot oppose the AG if he declines to prosecute. Article 145 (3) of the Federal Constitution refers.
While we may be in chartered waters, it’s not “legal fiction”.
There must be a Prosecutor for prosecution to proceed, and if Defence had proceeded and the prosecution hadn’t responded, the case/s would be struck out, with liberty to file afresh in the lower court, if the AG Applies accordingly.
If Barisan Nasional (BN) does well in the looming snap Johor elections, it’s more than likely that Prime Minister Ismail Sabri will make way for Najib Razak.
Patently, it would not be necessary to go for GE15 immediately after Johor. Umno can in fact, trigger at will, any number of state elections before GE15, and thereby consolidate its position in politics, power and government. That can include Sabah which went to the polls on Sat, 26 Sept 2020. Umno lost the Chief Minister’s post to Bersatu whose chief, Muhyiddin Yassin, was then Prime Minister.
In keeping with the best traditions of Umno, the lynchpin in BN, Ismail Sabri would not defy the Supreme Council of both political vehicles. He can be persuaded to eat humble pie and accept an Ambassadorship or another suitable position in government. Muhyiddin was a precedent.
Let’s consider some footnotes although they would not be included in history.
After bed-ridden Mahathir Mohamad’s “prediction”, not so long ago, on Najib “being the first convict to be Prime Minister”, Lim Kit Siang, in delayed reaction, may be going “berserk” over the possibility.
The veteran DAP leader finds it doubly ironical that Trump, Najib’s “#MakeAmericaGreatAgain” friend, may return as well and grant a new round of presidential Pardon including for those yet to be charged.
It’s a “harakiri moment” for Lim if the double whammy, Najib and Trump, happens. It adds supreme insult to injury viz. the downfall of the Pakatan Harapan (PH) government on Mon, 24 Feb 2020.
Most Favourite PM
The American President has been quoted as describing Najib as his “most favourite Prime Minister” and teed off against him on the golf course on two separate ocassions.
Najib did visit Trump at the White House, before GE14, and offer to help “#MakeAmericaGreatAgain”.
Najib’s tenure ended on Thurs, 10 May 2018 when Mahathir Mohamad, his Bersatu Party having only 13 seats, was appointed Prime Minister in a “freak move”. The 93 year old was backed by DAP and Amanah, but had only grudging support from PKR headed by de facto leader Anwar Ibrahim. The Agong advised Wan Azizah, the wife, that she had the most seats among PH parties and should be Prime Minister. It was a freak moment in history that was lost.
Najib had 79 seats in Parliament, the largest number under one symbol.
In hindsight, Najib as the incumbent could have been first invited to form a new coalition government. Again, it was a freak moment in history. Indeed, he even publicly hinted at the possibility, but alas, no heed was paid as PH hysterically embarked on a propaganda barrage against the possibility that they may still warm the Opposition benches in Parliament.
Trump left office on 20 Jan 2021 after he failed to get the US Supreme Court to address electoral integrity issues created by the pandemic, the “special circumstances” in law.
The Supreme Court’s Ruling that “all votes must be counted” despite the issue of alleged “mathematical impossibilities” raised by Trump, ended his days in the White House. – 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. Heâs 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 writerâs, and do not necessarily reflect the stand of the New Malaysia Herald.