Malaysia, lacking in brilliant lawyers like QC, sees no novel developments in court!
The Bar Council of Malaya, based on its own statement on QC Jonathan Laidlaw, has shot itself in both feet, for want of a better term in looking for the law on the matter.
According to the media, the application for QC will be heard at the High Court of Malaya on Wed 6 July 2022 before Justice Ahmad Kamal Md Shahid. It’s difficult to see how the court will find law on the QC and deny him appearance even if the Prosecution can provide further and better particulars on the issue in conflict. See here . . .
The RM42m SRC International appeal will be heard over 10 days from August 15 to August 19, and from August 22 to August 26.
These dates can be vacated if there’s Application by the Defence on any specific matter. The proceedings in court will be stayed until all Applications are resolved. Applications, if denied, merit Appeal twice.
The QC, Jonathan Laidlaw, does not have to focus on proving that former Prime Minister Najib Abdul Razak was innocent. It’s sufficient for him to prove, given the Test of the Burden of Proof in criminal cases, that Najib was the victim of a tainted Ruling.
The QC probably would not be able to pull off a miracle and persuade the Federal Court to overturn Najib’s conviction on the SRC case. Too much water has flowed under the bridge. The Federal Court, by its very nature, cannot go off at a tangent no matter what the odds, or the nature of the case in the lower courts. The High Court Ruling hangs like the proverbial albatross around the Federal Court’s neck. It’s unlikely that the Federal Court would declare law on the albatross phenomenon. See here . . .
Still, there’s a narrow window of opportunity in Appeal for the QC to prevent an unanimous Ruling against Najib. This would be a major victory in court paving the way for Pardon based on miscarriage of justice. The dissenting Ruling, if for Najib, provides material for Federal Court Review.
If the Federal Court, in push coming to shove, eventually closes the door against Najib, the matter can only go before the Agong for Pardon. The Pardon is nonjusticiable (cannot be heard in court).
At best, the QC can persuade the Federal Court to set aside the High Court Ruling on the grounds of mistrial. The Ruling was allegedly tainted. The jury may still be out on whether the Federal Court would send the case back to the High Court to be heard before a new judge or hear the case itself.
Big Holes In Bar’s Statement
The court in Sabah and Sarawak and the superior courts are in English. This point favours the QC. In any case, Order 92, Rule 1 of the Rules of the High Court on the national language — Article 152 — may be redundant. The 20K word Bahasa Kebangsaan (national language) — Johor Rhio Lingga version of Bahasa Melayu — has no longer been in official use since the 40K word Bahasa Malaysia emerged by the 13 May 1969 disturbances in Kuala Lumpur.
In law, the Constitution in English is the valid version. Law, ultimately, is the power of language, according to the University of London (UOL). The power of language arises from the vocabulary count, one million in the case of English, a billion if extended words are included. Again, the QC stands on strong grounds here.
Shafee Applied For The QC
There’s another big hole in the Bar Council statement’s claim that lawyer Shafee Abdullah was the most qualified to represent Najib in court. It’s Shafee himself who filed the Application on QC Laidlaw in court. Besides, it was Shafee who led the Defence in the High Court and Court of Appeal on the SRC case. He leads Najib’s legal team in the Federal Court. Najib has the right to find a way out of the Court of Appeal seeing no reason to interfere with the Ruling by the High Court on the SRC case.
It can’t be argued that both court adopted a wide latitude in interpretation on the SRC case. There’s no evidence of it in the Ruling. The court did not bend over backwards to be fair. The principles of natural justice comes into play. Justice must not only be done but be seen to be done. The Ruling which went off at a tangent from Submission, and was probably influenced by the Obiter Dictum of High Court Judge Nazlan and Trial by Media from even before GE14 on Wed 9 May 2018, gave no benefit of the doubt to Najib, the sole accused.
Also, in mitigation, the court failed to note that the Najib Administration (2009 to 2018) did not degenerate like the Mahathir Administration (1981 to 2003 and 2018 to 2020) into Prime Ministerial Dictatorship. Najib did not risk abuse of power, conflict of interest and criminal breach of trust. There was collective responsibility under the Cabinet System based on the principle of consensus viz. no voice against.
It would be more accurate to argue that both court put on blinkers and circumvented the Doctrine of Separation of Powers, the Principles that govern the Cabinet System and the prerogative and discretionary powers of government and management. The court glossed over the fact that there was no forensic accounting on the SRC case as with the Roger Ng case in New York on funds allegedly originating from 1MDB.
The court did not go into whether 1MDB was set up for political donations. In Malaysia, the law on political donations may be work in progress. There’s no law against political donations. Political donations, if brought to court as proof of personal benefits based on bribery and corruption, isn’t about the rule of law. There may be a case for the Inland Revenue Board (IRB) to go after political donations above RM5K if not reported, and if there has been alleged tax evasion as with the RM380m Musa Aman case. Tax avoidance is legal.
In law, it may not be possible to argue that political donations prove money laundering activities. If political donations are used for corporate social responsibilities (CSR), the IRB can make a determination on the matter. It’s not a matter for the court.
Of course, there’s the “unless factor” in the Raja Azlan case law on abuse of power, conflict of interest and criminal breach of trust.
The QC should be better able to prove that the Raja Azlan case law, based on jurisprudence and constitutional law and the rule of law, was bad law. It does not exist, and if it exists, it ceases to exist, as if it never existed. The Federal court can declare the law on a matter where local lawyers didn’t even try.
Abuse of power is a legal minefield. The QC can only run the gauntlet on the phenomenon through jurisprudence, constitutional law, and the rule of law. Najib’s cases, all criminal, are not about theft of money. The Attorney General’s disingenuous construction in court was driven by the suspicion that Najib was party to illegalities i.e. facilitating money laundering activities.
If true, the questions that arise in law are on whether it was about political donations or acquiring assets far beyond what can be legitimately accumulated over a lifetime. This comes back to the Definition of money laundering in international law. It has Application in national law.
Bar Found Wanting
It cannot be denied that both Chief Justice Richard Malanjum — see Farewell Address — and Attorney General Tommy Thomas — see Memoirs — found the Bar in Malaysia including in the Borneo Territories, the Attorney General’s Chambers (AGC) in Putrajaya, Sabah and Sarawak, local lawyers, the legal fraternity, the court, and the judiciary wanting on the rule of law, the basis of the Constitution.
This comes back to lawyers in Malaysia taking the easy way out and belabouring in the delusion that the letter of the law, by itself, is law. It isn’t law at all as pointed out by Malanjum in his Farewell Address. It further proves why the QC should argue the SRC Appeal in Federal Court.
Again, law schools have been telling governments in Malaysia and elsewhere in the Commonwealth for years that the course content in the LLB degree programme isn’t about law practice. The degree, only suitable for teaching, doesn’t address the lack of courtroom skills among law graduates admitted to the High Court. See here .
According to the University of London, “it’s a bit of a mystery exactly what skills LLB graduates bring to bear on cases in court”.
The Bar Council should work with the government on removing the black sheep from the profession, taking another looking at the admission to the High Court to practise law and law education being the biggest elephant in the room i.e. on courtroom skills. Then, there’s the case for law reform and restoring public confidence on everything related to the court in Malaysia.
Instead, in taking a dog in the manger approach, the Bar Council appears determined to prevent the introduction of skills in the courtroom. Najib should ask for further and better particulars on the matter. The Bar should not belatedly fear that the QC will make lawyers in Malaya, Sabah and Sarawak “look bad” in the public eye. It’s an open secret that the legal profession is the pits, not only in Malaysia but also in Australia, among other places, and in “hanging” Singapore where the government has never changed hands since 1959.
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 writer and do not necessarily reflect the stand of the New Malaysia Herald.