In the rule of law, basis of the Constitution, no one above the law, all equal before law, rights come with remedies.
First, in connecting the dots from memory based on wide reading, let’s delve into a little history. That updates us on the rule of law, protocol, innocence and guilt, four terms in play in the social media in recent days as certain issues in court and outside go viral. They have raised the public temperature on former Prime Minister Najib Abdul Razak, patently for no rhyme or reason. See here . . .
It’s a known fact that Najib comes from a family of traditional Bugis Chiefs in Sulawesi, long before Indonesia (Indian Islands in Greek) emerged. His lineage includes being part of the royal family of Goa in Sulawesi (not India). They became traditional Chiefs in Pahang as well after the Malacca Empire was established. He is an aristocratic descent of Orang Kaya Indera Shahbandar.
Najib mentioned his ancestral and historical origins in the media, before GE14 on Thurs 10 May 2018, when Mahathir Mohamad disparaged the Bugis as “pirates” roaming the high seas — read 1MDB — and incurred the wrath of the Selangor and Johor sultans. The Rulers went public with their displeasure. Mahathir begged to disagree with the “brave Bugis warrior” tag in history in raising the public temperature on 1MDB.
The traditional Chiefs in Pahang are linked to the sultans of Pahang who trace their origin to the Malacca Empire.
Rosmah Mansor’s family came with the Minangkabau Chiefs in Sumatra who became Yang Di Pertua in Negri Sembilan. They settled the last succession dispute among four Orang Asli Chiefs in the territory. We know from history that none of the Orang Asli were picked as Paramount Chief. The rest is history.
Public Perception
If the Agong invited the inseparable duo, Najib and Rosmah, to the Istana recently for the breaking of the Ramadan fast, it can’t be said that the couple were being given special treatment by the head of state as well. There’s protocol at work here. In Najib and Rosmah’s case, protocol doesn’t change overnight unless there’s closure adversely on issues in conflict between parties in dispute. Only the court can bring closure unless there’s out of court settlement. The court will not interfere in the latter case.
The public perception in Malaya favours the Rulers and old Malay families. Malay feel safer in politics with old Malay families, albeit cast in tribal and feudal loyalties. There’s the assurance of the family institution providing stability in governance. Najib and Rosmah are from old Malay families.
The couple were not the only people invited to the Istana. So, when the protocol being in place decides, it can’t be said that they were getting special treatment.
If questions arise on why they were invited at all, protocol aside, there’s law on the matter. In jurisprudence, “a man is considered innocent unless proven guilty”. Najib may have been convicted in the RM42m SRC International case, but in the same breath, it must be noted that he was given stay of execution on the sentence.
In any case, if push comes to shove, no court in the world it can be reiterated will go against the Agong on the invite to Najib and Rosmah. The matter is nonjusticiable. The Special Court on the Rulers is a separate matter.
Equality In Law
In moving on from the Istana, it’s not surprising that farmer Faiz was allowed stay of execution and granted police bail after being granted leave to Appeal. See here . . .
An accused or litigant can Appeal twice from the court of 1st Instance i.e. where the case begins. Federal Court Review isn’t Appeal. It’s Review of the Federal Court Appeal. There’s no police bail in the court of 1st instance, in criminal cases, if violence is involved.
The court in the Faiz case could not declare law in favour of the prosecution on the Appeal. It could not declare law, if mooted by the prosecution, against the accused. The stay was granted and police bail allowed. The court finds the law and declares it when parties in dispute on issues in conflict point out the law after looking for it.
Farmer Faiz cited the SRC case where Najib was convicted on abuse of power, conflict of interest and criminal breach of trust, a litany of highly subjective charges.
Again, farmer Faiz’ case further illustrates that Najib isn’t getting special treatment.
In the rule of law, the basis of the Constitution, no one is above the law, all are equal before the law. Article 8 of the Federal Constitution says no discrimination.
The difference between the Faiz and Najib cases is the absence of violence in the latter. That merits police bail since Najib would not bring physical harm to the public. We can recall that former Deputy Prime Minister, Anwar Ibrahim, was denied police bail in the Sodomy 1 and Sodomy 2 cases. He had to fight the cases from jail.
Many netizens in the social media are behind the public perception that since Anwar was locked up, while fighting his cases, Najib should have been locked up too once charged in court on the SRC case. The former Prime Minister also faces other charges involving 1MDB including on an internal Audit Report. We won’t go there.
It’s important to look at the whole story, not just parts of it which suits one’s “convenience” and political expedience. Many people love starting a story from the middle. They try passing that off as the Gospel Truth.
Najib is a free man based on the rule of law. There’s no law against Najib being a free man. Article 5 of the Federal Constitution guarantees the “right to life”. Article 8 says no discrimination.
GodFather Of Corruption
Mathathir Mohamad’s sanctimonious pontifications on Najib isn’t law. It’s self-serving Opinion. He keeps saying that the people must be reminded constantly that Najib is corrupt, “curi duit” (stole money), “curi duit kerajaan” (stole government money), the man is a convict, and that Umno was a shameless party which harbours the corrupt, criminals and convicts and was all about themselves.
In fact, netizens are in consensus that Mahathir and Family should be dragged to justice as well, if not locked up, for allegedly money laundering activities created by abuse of power, conflict of interest and criminal breach of trust during the Mahathir Administration from 1981 to 2003.
Ironically, to disgress a little in keeping things in perspective on the rule of law, Mahathir the unchallenged GodFather of Corruption has publicly declared that Pejuang, his newly formed party, will lead the fight against corruption in the country.
Corruption isn’t confined to simple giving and taking but can be defined as the act of making everything one touches to go bad.
Google the dictionary meaning of corruption. The MACC Act defines corruption as deriving personal benefits from giving and taking. In the recent Tengku Adnan case, for example, the court fined and jailed the giver but freed the taker, i.e. Tengku Adnan, on the grounds that RM2m from the giver was political donation for two by-elections. The Inland Revenue Board (IRB) doesn’t enter the picture although required by law. In any case, it’s not the work of the court to collect income tax.
1MDB Story
We don’t know the 1MDB story which has been linked to Najib. In fact, all the evidence emerging since the Roger Ng case in New York shows that the former Prime Minister wasn’t the mastermind behind the mega global financial scandal, as alleged, but being the head of government until 2018, may have simply been the victim of circumstances. See here.
If all the cases against Najib are taken to the obvious conclusion, by extrapolation and logical deduction, the matters in court may yet fizzle out, an anti-climax of sorts. The proverbial “smoking gun” may be missing in the Najib cases. Circumstantial evidence is inadmissible in criminal cases. The threshold is high, “beyond reasonable doubt”, given the Test of the Burden of Proof in criminal cases.
The Opposition, taking the reins of power under Mahathir on Thurs 10 May 2018, continued their anti-Najib propaganda before GE14 in the media. The politically-motivated cases began in court. If they turn out to be anti-climaxes, they will enter the footnotes in history as selective prosecution and selective persecution. There’s widespread public suspicion that Mahathir may have wanted to eliminate the old Malay families from politics, take away their income, revenue and resources, do away with the Rulers dabbling in business and reduce them to living on state handouts as done during the British Administration.
Mahathir Coup d’etat
Here, we can recall why a petrified Mahathir refused to make way for Anwar before he stepped down as Prime Minister on Mon 24 Feb 2020. Instead, he brought down his own government, Pakatan Harapan (PH), and made way for Umno’s return to the Federal government.
It was Anwar, as sacked Deputy Prime Minister, who thundered before a media briefing in 1998 that Mahathir and Family will be dragged to justice for alleged money laundering activities and locked up.
Mahathir remembers the threat. In a convenient bout of amnesia, these days, he claims he wants to help Anwar. He never declared that Anwar should be Prime Minister.
Again, there’s a case for dragging Mahathir and Family for alleged money laundering activities. The proof lies in the publicly declared assets they hold. All the children are multibillionaires, a first in world history. It’s not known whether the bizarre story has been entered in the Guinness Book of World Records.
Mahathir himself can be charged for abuse of power, conflict of interest, and criminal breach of trust for a multitude of sins under the “Malaysia Boleh” (Malaysia Can) mantra.
There have been so many mega financial scandals during the Mahathir Administration from 1981 to 2003. These have been well-documented in Aussie journalist Barry Wain’s, “Mahathir: the Malaysian Maverick”.
Mahathir was singularly responsible for observing, in the breach, Article 153 in the Federal Constitution, the New Economic Policy (NEP) and the Quota System. There were so many deviations and distortions. That’s the Malaysia, a failed state, that Mahathir leaves future generations.
Yet, Mahathir who isn’t old Malay Family walks around free as a bird and publicly laments why “lesser mortal” Najib has been accorded the same “privilege”.
Race and Form of Identity
It must be clarified that Mahathir is Malay by form of identity — see Article 160(2) — and Indian (Malayalee) by race.
It isn’t true that he can’t remember from which part of India his people came from and that he has only a few spoonfuls of blood (Indian). He preached to the media on these two controversies amidst a tiff with New Delhi on Kashmir losing its autonomy on the grounds that “Islam came from outside. Kashmir is Hindu land”. It’s history that the British stole land from India to create Pakistan as an Islamic state. Nehru gave Kashmir, India’s northern flank, autonomy in 1947 since the valley was majority Muslim, Jammu was Hindu and Ladakh was Buddhist.
Mahathir’s and Siti Hasmah’s family trees were well documented in my uncle J.V. Morais biography on Mahathir . . . “Mahathir: Profile in Courage”.
Siti Hasmah, observing the tradition among the Kaka community (Malayalee Muslim) in Kerala, even got married in a saree.
There have been social media reports that Mahathir registered for medical studies at the University of Malaya in Singapore as “Indian Muslim”. Lee Kuan Yew, according to these reports, gave a copy of Mahathir’s student registration to the late Johor Sultan.
Mahathir’s Identity Crisis
Apparently, Mahathir decided against looking down on the Malay — the norm among Indian Muslim — when the Federal Constitution included Article 153 on 31 Aug 1957 i.e. Merdeka (independence) Day. The Article gave Muslim in Singapore and Malaya, defined by Merdeka, a special position by way of a reasonable proportion in four specific areas. Do look up the four specific areas.
Mahathir saw the benefits in denying being “Indian Muslim” in an independent Malaya and became Umno President in 1981 and Prime Minister. Still, he has never failed to publicly insult and humiliate the Malay. He even bragged in 1969 about his “superior” (Indian) genes in “The Malay Dilemma” a mixture of racism, xenophobia, pseudoscience and “rotten” — read anti-Chinese — politics. – 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.
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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