Najib Needs ‘Perfect’ Appeal in Federal Court On SRC Case

Appeal hinges on key initiatives including from sacked AG Apandi Ali.

Former Prime Minister Najib Abdul Razak, besides engaging QCs from the Commonwealth, can further perfect his Appeal in the Federal Court on the RM42m SRC International case.

Under the adversarial system of justice in the Commonwealth, the court can only consider what’s placed before it. If there are Applications — and there can be any number of them without abusing the process of court — these have to be disposed first.

In law, the proceedings in the Federal Court on the case will be stayed until at least two new important Applications and letter of representation are considered.

Najib should embark on the three key initiatives based on the government compensating sacked Attorney General Apandi Ali. The jury may still be out on whether Apandi was inadvertently “paid off” to keep him out of Najib’s case. I stand corrected.

Najib’s successor Mahathir Mohamad, for one, has taken issue with the financial settlement but for different reasons. Mahathir was prepared to testify in court that Apandi “deserved to be sacked”. He implied the question of compensation does not arise. Hence, many questions can be asked. See here . …

Discovery Application

Firstly, Najib should file a Discovery Application for the full details on the government’s settlement with Apandi. The Federal Court can determine whether AG Idrus Harun can claim that the settlement was privileged communication. There may have been elements — read illegalities — which affected the SRC case. It wasn’t immediately clear whether Apandi signed a confidentiality and non-disclosure agreement with the AG on the settlement. See here . . .

Secondly, Najib can file an ex-parte Originating Motion (OS), based on Article 145 of the Federal Constitution on the role and functions of the Attorney General.

The focus remains on the widely divergent positions taken by Apandi Ali and his successor Attorney General Tommy Thomas on allegations against Najib. It smells of a sinister political conspiracy, for want of a better term, hatched for selective prosecution and selective persecution of a Prime Minister who may not have departed too much from what his predecessors had done. It has created a dangerous precedence based on subjectivity, the truth being stranger than fiction.

Prime Ministerial Dictatorship

Apandi Ali, a former Court of Appeal judge, saw no evidence of a Prime Ministerial dictatorship under the Najib Administration, unlike during the Mahathir years.

The Cabinet System under Najib adhered to the two binding Principles viz. Consensus (no voice against) and collective responsibility.

Apandi knew that no court would interfere with prerogative and discretionary powers of government and management unless abuse could be proven.

If abuse of power existed, the entire Cabinet risked being dragged to court under the principle of collective responsibility. Apandi found no abuses. There were adequate checks and balances in place.

The Doctrine of Separation of Powers doesn’t enter the picture where there are illegalities.

Apandi, as widely seen in media coverage before GE14, in fact openly showed charts on money trails. He declared there was no case against Najib.

In law, the AG was right.

The proverbial smoking gun if any, which could have implicated Najib, was missing. Fugitive fundmanager Jho Low’s paw marks were all over the place but he didn’t appear to be the mastermind. The big story emerged when Jho Low’s father, Larry Low, fled the country with his wife. Terence Geh, Casey Tang, Jasmine Loo and Eric Tan, all known associates of Jho Low at 1MDB and related companies, fled the country.

Weakest Attorney General

Thomas, politically already the weakest Attorney General since Merdeka in 1957 and clearly acting under duress, dragged Najib to court after GE14 on the same allegations dismissed by Apandi. It’s not known whether there were further and better particulars on the allegations between the time Apandi was unceremoniously dumped and Thomas replaced him under somewhat dubious circumstances.

There were no reports of the Agong granting Apandi an audience before Thomas came in. It’s rather unusual the Agong did not have the opportunity to advise Apandi to make way for an Attorney General chosen by the new government.

It could be argued of course that Apandi was automatically sacked when the Agong appointed Thomas.

It can also be equally argued that, briefly, there were two AG but only one office.

Letter of Representation

The story so far, and more, can be in an Affidavit in Support (AiS) by Apandi. The OS, Discovery Application and AiS can be attached to the letter of representation by Najib to the AG.

Deja Vu!

We can recall that it was an Affidavit in Support by sacked AG Gani Patail that freed former Sabah Chief Minister Musa Aman from 46 corruption charges. The AiS was attached to the letter of representation. Thomas took the letter to court and recommended DNAA (discharge not amounting to acquittal). The court ruled DNA (discharge and acquittal).

Musa even conceded in court that he collected RM380m in political donations. There was no indication that he reported the donation to the Inland Revenue Board (IRB). By law, since the amount was more than the RM5K by law, Musa had to inform the IRB, name the donors, and pay taxes.

The IRB could have gone after Musa for failing to file tax returns and for tax evasion. Bank Negara could have taken civil action to freeze, seize and forfeit the RM380m under money laundering laws.

Abuse of Power

Najib has been charged with abuse of power, conflict of interest and criminal breach of trust.

In fact, the system allegedly created by Mahathir during the years when he was Prime Minister, from 1981 to 2003, reeks of rampant abuse of power, conflict of interest and criminal breach of trust. All this can be in Apandi’s AiS and Najib’s letter of representation.

The system, allegedly based on deviations and distortions of Article 153, the New Economic Policy (NEP 1970 to 1990) and the quota system, saw those in public office routinely awarding family, relatives, cronies and “nominees”. It’s a familiar tale that hogs the social media.

There’s ample material here in the lifestyles maintained for initiating multiple money laundering cases. It doesn’t happen. MACC (Malaysian Anti Corruption Commission) and Bank Negara look the other way. Ironically, MACC looked the other way on Azam Baki, its own Chief who was found with an extraordinary amount of unexplained wealth.

The rot in government can be traced to one of the four special positions in Article 153. It speaks of a reasonable proportion of business opportunities from the government for Orang Asal in Sabah and Sarawak, and Orang Asli and Malay in Malaya.

Rags To Riches

Mahathir’s own family became multibillionaires, a first in world history, a rags to riches story. It only began when Mahathir became Prime Minister. All hell would break loose if this happened in other countries.

In a contradiction in terms, Mahathir stays in a glasshouse and throws stones, especially at Najib. In law, Mahathir and family do not have a clean bill of health on money laundering.

Other leaders in government have jumped on the bandwagon and emulated Mahathir. It’s a story that continues. It’s an open secret known the world over. Najib himself conceded more than once in the media that “we all learnt — on making money — from Mahathir. He was the Guru”.

There are no co-accused with Najib. That’s a fatal flaw in law.

In “All the President’s Men”, the movie on the WaterGate Scandal, Richard Nixon was given a Pardon by his successor Gerald Ford. His resignation was preceded by so many officials in the Nixon Administration being paraded in public before the media, taken to court, fined and jailed.

Mohd Nazlan

High Court Mohd Nazlan, under probe by the MACC, noted that Najib didn’t return the RM42m. He did not elaborate. The judge could have ordered Najib to deposit the money in court and allowed SRC International to claim the amount.

The judge may have realised that SRC claiming the money was easier said than done.

The money was released, reportedly for corporate social responsibility (CSR) activities, after it went through internal checks and balances based on compartmentalisation i.e. on a need to know basis, no one person knowing everything and no one acting unilaterally.

SRC did not hold any Internal Inquiry on the RM42m. No heads rolled.

No one from SRC was co-accused with Najib.

SRC CEO Nik Faizal Ariff Kamil, who fled the country, and fellow Director Suboh Mohd Yassin signed the release of the RM42m for Najib’s three accounts at AmBank in Jalan Raja Chulan in Kuala Lumpur. The accounts were managed by Nik Faisal, according to AmBank Branch Manager Uma Devi in court on 24 April 2019. – 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.