Federal Court May Not Deny Bid By Najib For New Trial

It’s open secret that Trial by Media since even before 2013 denied former Prime Minister Najib Abdul Razak the right to free and fair trial!

If the media reports on the Pekan seat are true, former Prime Minister Mahathir Mohamad has failed to eliminate the Razak Family from Malay politics. Malays prefer the politics of old families from the Archipelago. Although KeralaMari (from Kerala) Mahathir can claim some support among the Malays, it’s unlikely his non-Archipelago family would be accepted like the Razak family.

By considering his son Mohd Nizar for Pekan, former Prime Minister Najib Abdul Razak may be taking no chances with his Appeal in the Federal Court on the RM42m SRC International case although, when push comes to shove, he can Petition for Pardon based on miscarriage of justice.

Still, the Federal Court – although it rejected an Application to adjourn the RM42m SRC International Appeal set for Mon 15 Aug 2022 – cannot insist that Najib’s new defence legal team be ready to proceed with arguing the Application for a New Trial. See here.

The Federal Court cannot reject arguments for a New Trial based on the fact that Trial by Media from even before 2013 denied Najib a free and fair trial. The court failed to place a gag order on the media. This was a fatal flaw in law.

In arguing for a New Trial, the defence would need to be prepared, lest it be reduced to “clutching at straws”. That takes time, perhaps six weeks, and even as long as six months, to review the Trial by Media which has taken place from even before 2013. Witnesses from the media would have to be summoned, their Witness Statements filed, and cross-examination conducted. There may be examination in chief and re-examination as well.

Applications

Between the arguments for a New Trial and the Appeal, there can be any number of Applications for declarations on points of law although prima facie case was made out, disingenuously, against Najib in the High Court. It would be preferable if there’s one Application asking the Federal Court for declarations on 15 points, for example, on law. This would involve declarations on Article 153, the New Economic Policy (NEP), the quota system, and political donations as well.

Under Article 153, Malays, Orang Asal and Orang Asli have special position, by way of a reasonable proportion, but only in four specific areas including opportunities from the gov’t to do business.

The MACC has declared more than once that government contracts are not corruption. The MACC does not do due diligence on government contracts, forensic accounting on the money trail and money laundering related to government contracts. It leaves political donations to the IRB (Inland Revenue Board) and Bank Negara (central bank).

D-Day Mon 15 Aug

The question that would arise on Mon 15 Aug 2022 at the Federal Court may be on whether Najib’s new legal defence team would be ready on that day, not for the Appeal, but the bid for a New Trial.

The Federal Court, during case mention on Wed 10 Aug 2020 for case directions on case management, said that Najib’s Application for a New Trial would be heard first on Mon 15 Aug 2020. 

Again, the Federal Court will probably not hear the Appeal on Mon 15 Aug 2022.  It may be put off to a later date to be determined by the court. I stand corrected. See here.

Zaid Ibrahim and Najib

Partner, consultant and lawyer Zaid Ibrahim, according to media reports, said his firm had advised Najib to “abandon certain propositions previously put forward”, giving way to a reset in defence arguments.

“We are purely focused on constitutional principles, the rule of law, principles of natural justice and the specific legal and factual issues in the application for retrial and the appeal proper,” he said in a statement carried by the media. 

Zaid Ibrahim, it must be mentioned, has always been against Najib on all his cases. He may have suddenly “seen the light” on the rule of law.  There’s no place for emotions, prejudice, bias and hate in law. The bottomline: the court cannot put on blinkers and “belabour in the delusion”, for want of a better term, that the letter of the law — by itself — is law. It isn’t law at all. See here.

Likewise, DAP veteran leader Lim Kit Siang now wants to work with Najib. See here.

Spirit Of The Law

In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law. Again, in the rule of law, no one is above the law, everyone is equal under the law, there can be no discrimination, and where there are rights, there are remedies. Having said that, Declarations are not remedies but perhaps can be persuasive on cases.

The Federal Court must be persuaded to adopt a wide latitude in interpretation and Rule and/or Declare based on the rule of law. That calls for contributing to novel developments which can be declared as law. Therein lies brilliance in law which can only come from perfection in writing for perfection in law. Law ultimately, according to law schools, is the power of language.

It’s the work of lawyers to look for the law and point it out. The court finds the law and declares it.

If former Sabah Chief Minister Musa Aman’s 46 corruption charges can be dropped based on the unverified claim that the RM380m he collected was political donations — indeed coming directly from timber contracts — there’s no reason why Najib should be saddled with similar charges i.e. that he derived personal benefits based on bribery and corruption. Najib, as the charges raised in various criminal cases show, allegedly committed abuse of power based on conflict of interest and criminal breach of trust.

Errors In Facts, Errors In Law

The Application for a New Trial isn’t like the bid to set aside the High Court conviction on the SRC case, the latter remaining a separate issue. The Federal Court, based on the earlier takes in two courts, can, may and will reject arguments that the SRC case in the High Court was a mistrial and miscarriage of justice based on the allegedly tainted Ruling. See here.

Already, the Court of Appeal said on Tues 8 Dec 2021 that they saw no reason to interfere with the High Court conviction on 28 July 2020. The superior court saw no errors in facts and no errors in law.

High Court Judge Nazlan had large unexplained sum, RM1m+, in his personal account/s. MACC has probed the judge on the matter and sent the investigation papers to the Attorney General’s Chambers (AGC) and the Attorney General. 

It’s being argued that Judge Nazlan should have recused himself since he had earlier, and prior, knowledge on matters which concern the SRC case in the High Court.

The tainted Ruling arises since Judge Nazlan may not have Ruled on Submission. He may have been influenced by Obiter Dictum i.e. the judge’s opinions and comments which should have been excluded from the Ruling.

Judge Nazlan allegedly went off at a tangent and pontificated sanctimoniously on this and that and that and this, throwing in highly personal and offensive remarks as well, probably in an act of “revenge” at Najib and his lawyer, Shafee Abdullah. 

It’s a known fact that Judge Nazlan has no criminal court experience. He may have been transferred from the commercial court to the criminal court just for the SRC case. After the case, he was transferred back to the commercial court. He has since been elevated to the Court of Appeal.

It's being argued that Judge Nazlan should have recused himself since he had earlier, and prior, knowledge on matters which concern the SRC case in the High Court.
Judge Nazlan allegedly went off at a tangent and pontificated sanctimoniously on this and that, throwing in highly personal
and offensive remarks as well, probably in an act of “revenge” at Najib and his lawyer, Shafee

Counter-productive

Having said that, looking ahead, it would be counter-productive if Najib’s new legal defence team argues during the Federal Court Appeal that there were errors in facts and errors in law in the Court of Appeal upholding the High Court conviction. 

The Federal Court will hold, “as the charges stand”, that there are no errors in facts and no errors in law. It’s also about who the judge believes. High Court judge Nazlan did not believe Najib, saw no reason to give him the benefit of the doubt and ruled that a prima facie case had been made. The ruling may not have been based on the rule of law but the Trial by Media since from even before 2013. The media appears to have got to the judge and prevailed on him.

It would be indulging in wishful thinking and living on hope if the new defence team belabours in the delusion that the Federal Court can somehow be persuaded — based on Submission on tainted Ruling, mistrial and miscarriage — to set aside the High Court conviction and send the case back to the court of 1st instance to be heard before a new judge or hear the case itself. It may be difficult for the Apex Court to adopt such a wide latitude in interpretation. Old habits die hard. – New Malaysia Herald

About the writerLongtime 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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