No one has examined the constitutional impact of charging a PM for acts in office for which he is indemnified!
If the Federal Court upholds the court of appeal on the High Court conviction, without giving the Defence a hearing, it would be a violation of the rule of law. The court of appeal saw no reason to interfere in the High Court Ruling on the grounds that there were no errors in facts and no errors in law.
Former Prime Minister Najib Abdul Razak can file Originating Summons at the High Court for declaration on a point of law on the Federal Court Ruling on the court of appeal on SRC without the Defence being heard. The High Court would refer to the Federal Court. There’s no constitutional court in Malaysia. The Federal Court can sit as the constitutional court.
Declaration would not be remedy. It may be Advisory Opinion for cases in court.
The Federal Court said in the 20-Page Ruling that it would visit Judge Nazlan’s take on the abuse of power, among other charges in the SRC case. The Apex Court can ask the Defence to make an Oral Submission on only one point: abuse of power. The Federal Court, based on the Oral Submission, can set aside the court of appeal take on the High Court Ruling, and declare the High Court conviction a mistrial on the grounds that there was no prima facie case.
The charges, if defective, may have been based on a fatal flaw in law.
The High Court Ruled that a prima facie case had been made out. The court probably fell back on the Raja Azlan Shah case law on abuse of power on the prerogative and discretionary powers of government and management and read it in isolation. The High Court was oblivious to the Doctrine of Separation of Powers, the Cabinet System based on the consensus principle and collective responsibility, the concept of organisational structures is based on checks and balances arising from compartmentalisation i.e. no one person knows everything, and due diligence and forensic accounting on the money trail.
There are related areas like Article 153, the New Economic Policy (1970 to 1990), quota system, Article 160(2) on Definition of Malay, and political donations and civil action on money laundering.
Najib remains the only person charged in the RM42m SRC International case. It seems that no one aided and abetted him on the RM42m and that no one was involved in a conspiracy. Even if Najib had “overarching control”, he could not have acted alone.
How Discharge Works
Although anything may be possible in court, it’s only Najib who can discharge lead lawyer Hisyam Teh. The court merely records the discharge. The entire defence team goes once the lead lawyer withdraws from the case and informs the court that he has discharged himself.
In law, the Discharge in fact works in two ways. The Client can discharge the lawyer. Alternatively, the lawyer can discharge himself or herself. The Court allows and records the discharge. What the CJ was saying is that the court won’t record the discharge. In law, she can’t say that the discharge isn’t allowed especially in criminal cases. In civil cases, discharge may not be possible until commitments made by the lawyer who has taken fees are fulfilled.
Najib’s Hopeless Situation
The 20-Page Ruling tells the new lawyers what lies ahead for them. It may be a hopeless situation. The Federal Court Ruling on the Motion for a new Trial may already have been written before the Defence was heard.
Patently, the new lawyers have no choice but withdraw from the SRC case. After all, they only just took up the case. After today’s hearing, Najib issued a four-page media statement saying, among other things, that his right to life and liberty is at stake.
They had expected the Federal Court to bend over backwards and be fair to ensure the rule of law is upheld. Instead, the Federal Court appears to have read only what the Prosecutor submitted. The court implied that it sees no reason to read Defence Submission or even read them at all. There’s no point being in court if judges don’t read.
SRC may be no exception. There has been widespread speculation for years that judges don’t read. The court clerks may read. Judges may be just listening to examination in chief, cross-examination, reexamination, oral submission and then Ruling. That’s tantamount to a miscarriage of justice and merits Pardon.
One judge told me out of the blue, “I read your case”. Why should he tell me that he read my case? He’s supposed to read my case. His statement implied that judges don’t read.
Finality of Closure
The Federal Court said there was finality of closure in the High Court on Judge Nazlan. Although only the court can bring closure, finality of closure comes after Federal Court Review, not after High Court. If there was finality of closure after the High Court, why did the case go to the court of appeal and is now in the Federal Court?
Unfortunately, the Umno statement on the new Trial did not mention the finality of closure. See here
If a case can go back and forth, it should be allowed to do so. Otherwise, it would be a violation of the rule of law. It’s tantamount to a miscarriage of justice which merits Pardon.
SRC Case In The Social Media
The following FB post in an Australian lawyer’s Timeline discusses Najib’s SRC case from different angles. The Klang-born lawyer blogs as Gopal Raj Kumar (not his real name). Coincidentally, he is a relative of mine too.
I am posting unedited.
Mansor bin Puteh: Can’t Hearsay evidence can be resubmitted if documents are verified to be true copies… Was it meant to be a good suggestion?
Gopal Raj Kumar: Mansor Bin Puteh, Hearsay can be admitted into evidence providing that the maker of the hearsay statement and his evidence is available for examination and cross examination. There is admissible hearsay and inadmissible hearsay. Much depends on the quality and relevance of that evidence it purports to be.
Mansor bin Puteh: Gopal Raj Kumar, so the judgment did not spoil the show after all!
Gopal Raj Kumar: Mansor Bin Puteh, The judgment was flawed because the processes that led to the judgment was flawed at inception.
There are many issues which should have been re examined and reviewed for a lack of understanding, or then evidence itself and how the discretion of the judge ought to have been applied in these matters.
More importantly the fact that if Najib was implicated in the commission of the crimes he was charged with, they could not have safely convicted him because evidence of a conspiracy involving, Jho Low (undisputed) and Zeti Aziz was cause enough for the court to re open or to dismiss the case and call for a retrial.
When three people are accused of assaulting a man killing him, one of them is caught, the other two abscond, you can’t convict the man you’ve arrested. Why? There is no evidence as to who caused the fatal blow that killed him. The other two like Jho Low, Zeti and in fact even Goldman Sachs were all culpable.
Till all the facts have been established beyond reasonable doubt (and the benefit of the doubt belongs to the defendant – in this case, Najib) the case cannot be established.
He can be charged with other forms of misfeasance like negligently participating in a scheme or schemes which cause the national treasury to lose money but not on the charges he faced. There is sufficient doubt about his guilt on those charges.
Moreover no one has examined closely the constitutional impacts of charging a PM for acts in office for which he is indemnified. To put it crudely, if he has to be charged for what he did in office, Mahathir can and must be charged and tried for losing MYR30 billion in FOREX failures, in the Petronas scandal and in the Bank Bumi and Tin scandals which caused Malaysia tens of billions of dollars.
If I was asked to defend Mahathir in such a situation, the first thing that would come to mind in his defence would be the indemnities he and parliament are entitled to for what they did in office. That’s why those indemnities are there.
Mansor bin Puteh: Gopal Raj Kumar, I mean the documents implicating Nazlan was deemed hearsay. Surely documents cannot be hearsay as they are legit.
Gopal Raj Kumar: Mansor Bin Puteh, It is not hearsay if the maker of the statement in the document can attest to the veracity of the statement and document being correct. Otherwise if the document (say like a Picasso) is found by an expert to be his work it is admissible even though Picasso is not around to attest to the authenticity of his art. So yes in short you are correct. We live in strange times.
Lanunsabah: The case is flawed even at the beginning … The case was registered as SRC AMLA case against Najib but the money was not from SRC and the company that deposited the money never claimed back the money.
The company’s directors were never asked why they deposited the money in the first place. The worst thing is that the whole conviction was based on hearsay without the person produced in court. The presiding Yang Arif came up with his own conclusion without looking at all the witnesses statements and cross examinations.
The main culprits were never brought to court but they convicted the person that they accused of. The AG must be held responsible for all of this prosecution and persecution.
Gopal Raj Kumar: Lanunsabah, I think you understand the flaws better than most.
Lynda Wong: Lanunsabah, No need for prosecution witnesses when their testifying has no merits in the judgement as script already written beforehand.
In a separate, and related development, the social media has reported that a police report has been lodged against the CJ on her husband’s alleged involvement as a “fixer” in court cases. Apparently, he was in court two days ago when the CJ and panel of judges rejected Najib’s motions.
If true, the CJ should recuse herself. The CJ can and may refuse. Then, Agong would have to come in after the Judicial Ethics Committee meets on the CJ.
Here’s the link to the FB post: Zamani Ibrahim
Here’s another FB post which helps keeps things in perspective: Nabeel Naqie Six
A five-member Federal Court bench led by Chief Justice Tengku Maimun Tuan Mat is hearing the Appeal by Najib. Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, and judges Nallini Pathmanathan, Mary Lim and Mohamad Zabidin Diah make up the Panel.
Najib’s legal team includes lawyers Zaid Ibrahim, Liew Teck Huat and Ruben Mathiavarnam. Hisyam Teh Poh Teik is lead lawyer.
Lawyer V Sithambaram, who is prosecuting under a special licence issued by the attorney-general, is assisted by Donald Joseph Franklin, Sulaiman Kho Kheng Fuei and Mohd Ashrof Adrin Kamil. – NMH
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.