Najib’s ‘New SRC Evidence’ May Put Appeal On Backburner

There’s a case for miscarriage of justice arising from an allegedly ‘tainted’ SRC conviction based on the mistrial

Former Prime Minister Najib Abdul Razak’s plight in court, facing numerous cases, including the SRC case, may be resolved if Malaysia adopts the Pardons Protocol observed by the US President for lawmakers and those in public service.

Najib’s cases all fall within the “technical offences” category, for want of a better term. The cases were brought to court under broad and highly subjective charges, all framed as “abuse of power, conflict of interest, and criminal breach of trust”.

It has been alleged that the cases smack politically-motivated selective prosecution and selective persecution.

Najib is being held solely responsible for multitude of sins. There are no character witnesses from the Cabinet in court. This may be a fatal flaw in the law. If so, it would be unsafe to convict Najib.

Patently, there are various internal checks and balances in government and the Cabinet System based on the consensus principle, i.e. no voice against, and the collective responsibility concept.

No court will go against the prerogative and discretionary powers of government and management unless abuse can be proven.

Generally, the court does not consider abuse cases, and if so, only very rarely and grudgingly.

No Proof

There’s no proof that the Najib Administration (2009 to 2018) degenerated like the Mahathir Administration — July 1981 to Oct 2003 and Thurs 10 May 2018 to 1 Sun Mar 2020 — into Prime Ministerial Dictatorship.

Mahathir, so far, has not been taken to court for anything. Critics have accused him of sedition, treason, bribery, corruption and money laundering. All his children, based on publicly listed holdings, are multimillionaires.

Mahathir stays in a glasshouse and throws stones at all and sundry, especially at Najib.

Razak, Najib’s father, gave Mahathir a place in politics. Tunku Abdul Rahman expelled Mahathir from Umno in the wake of the Fri 13 May 1969 public disturbances in Kuala Lumpur.

Mahathir, who has roots in Kerala in southwest India, holds a Malay MyKad since his family was in Malaya — according to him — before Merdeka on 31 Aug 1957. He considers the document as proof that he’s of the Malay race (implying genes and DNA as well).

He claimed during one press conference that he has only spoonfuls of blood (Indian), “otherwise, I am Malay”. The press conference was held after he attacked India for allegedly “occupying Kashmir” by doing away with its autonomy.

Definition

The Definition of Malay in Article 160(2) isn’t about race but a form of identity based on professing Islam and, among others, habitually speaking the Malay language and birth or domicile in Singapore or Malaya before Merdeka.

There’s case law on the Definition.

Read. Petmal Oil (Malaysia) Sdn Bhd v. Che Mariah Mohd Tahir (Trading As Delta Mec Enterprise) [1994] 3 CLJ 638.

Customary Practices

Based purely on customary practices, the American head of state cum head of government routinely grants Pardon. They cover acts of omission and commission, overt and covert.

The beneficiaries merit Pardon even when they had not been charged and/or probably were unlikely to be charged. Pardon does not imply guilt. It’s purely pre-emptive on the miscarriage of justice. It’s a strike back against witchhunts instigated by whistleblower accounts. See here and here.

No court will go against Agong on Pardon. The matter is nonjusticiable i.e. it cannot be taken to court. The court of law is only about law. Pardon isn’t about the law but prerogative and discretionary powers.

The question of the Agong abusing his powers on Pardon does not arise. The court has no jurisdiction. There’s the Special Court in the Constitution for the Agong and Rulers.

This is about other matters where the Agong or brother Ruler steps down.

SRC Conviction

It appears, based on a press conference and press statement by defence lawyer Shafee Abdullah on Tues 7 June 2022, that Najib may have issues with the manner in which the RM42m SRC International case was handled in the High Court. The court ruled on 28 July 2020. See here and here.

If true, the press statement implies that the proceedings on the Appeal in the Federal Court may be put on the backburner while the application to adduce fresh evidence, among others, is resolved.

In any case, the fresh evidence if allowed has to be in the written submission and written submission in reply before the Federal Court rules on the appeal. After appeal, there’s the review process in the Federal Court.

Both sides can ask for a review. The review isn’t the chance for another bite at the cherry. The court has no jurisdiction if the review is a euphemism for another appeal i.e. appeal disguised as Review.

Discovery Application

It’s not clear whether the Najib defence team will file any Discovery Application on the MACC’s investigation into Judge Nazlan who presided on the SRC case. The MACC papers, according to media reports, are with the Attorney General (AG).

It’s highly unlikely the AG would take the matter to court since the judiciary has its own internal mechanism, the Judicial Ethics Committee. So far, there has been no Internal Inquiry on Judge Nazlan.

The prognosis may not be good on the matter.

We know from the Roger Ng case in New York that the court would have to decide on whether fresh evidence is relevant and whether the prosecution, in allegedly withholding evidence, affected #Justice4Najib.

In the Roger Ng case, which did not implicate Najib on 1MDB, the court did not rule mistrial. It declared that the new evidence, withheld by the prosecution and voluntarily disclosed by them at the 11th hour, was not relevant and did not render the case eligible to be classified as a mistrial.

The case has gone for appeal on the grounds that “Roger Ng has been made a scapegoat”.

Many Applications

Since the Court of Appeal upheld the High Court conviction on 08 Dec last year, Najib has filed many applications to adduce fresh evidence. The media has reported that all these efforts were rejected by the court and eventually fizzled out.

It’s highly unlikely that the Federal Court, QC or no QC, would overturn the SRC conviction even if there are novel developments which can, on paper, be declared as law.

At best, the Federal Court would set aside the High Court conviction, rule mistrial, and send the case back to the High Court to be heard before a new judge.

Alternatively, the Federal Court can hear the case. If push comes to shove, the AG is unlikely to take the mistrial ruling for Review in the Federal Court or for a new trial.

Judicial Review

The judicial review process gives the best clue on how the court in Malaysia has a tendency to put on blinkers in literally circumventing the rule of law, the basis of the Constitution. It’s rare that the court adopts a wide latitude in interpretation. See here.

As alleged by Chief Justice Richard Malanjum in his farewell address not so long ago, the legal fraternity and the court in Malaysia have a tendency to fall back on the delusion that the letter of the law, by itself, is the law.

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 at all.

It’s an open secret that it’s almost impossible for the man in the street in Malaysia to win judicial review cases.

Unlike in England, the court in Malaysia does not go into the merits of judicial review applications if the gov’t has complied with its own procedures.

The Edge, in a rare outcome, won its judicial review case before GE14. The Home Ministry failed to comply with its own procedures.

Unfair Procedures

The court in Malaysia does not consider, in judicial review cases, whether gov’t procedures were unfair.

Again, except for cases originating from the Industrial Court, it’s difficult to win judicial review cases in Malaysia.

The Herald, the Catholic Weekly, won its judicial review case on Allah. The High Court — the judge was Buddhist — visited the merits of the Application.

The Court of Appeal set aside the High Court ruling on the grounds that the Home Ministry had complied with its own procedures.

The Federal Court upheld the Court of Appeal ruling. In rubbing salt on open wounds, the Federal Court cited an irrelevant principle in law from the Supreme Court of India.

Cases from the Commonwealth can be cited, as advisory, if there’s a lacuna (gap) in local law.

The Federal Court declared that it was not integral in the practice of Christianity in the Borneo Territories to use Allah in Malay print, implying “Christian God”. It cited the “integral” principle in the Indian case law.

The Supreme Court of India declared that it was not integral in the Ananda Marg Faith — a variation of Hinduism — to “dance in the streets of Calcutta”.

Integral In Borneo

The use of Allah in Malay print has been integral in the practice of Christianity in the Borneo Territories since the advent of western colonisation 500 years ago in the Archipelago.

The Herald submitted 300 Pages on the history of Allah in Christianity and among the Arab people including Christian.

The court cannot get into theology, ethics, moral values, sin, God, justice or truth. The court is only about the rule of law, the basis of the Constitution.

After the Herald case, the court avoided Allah cases like the plague. It declined to rule on the Jill Ireland case from Sarawak on Allah.

Instead, it advised the Federal gov’t and Home Ministry to settle the matter out of court. Otherwise, the court cautioned that it would have to rule on the matter.

The Home Ministry, being incorrigible and recalcitrant, refused to settle the matter out of court.

The High Court ruled in favour of Jill Ireland on the Allah case but, on a disingenuous note, added that the ruling in the Herald case stays. – 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 and do not necessarily reflect the stand of the New Malaysia Herald.

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