If there’s Commonwealth recognition, the case can be made to get Najib out of jail!
Former Prime Minister Najib Abdul Razak may have been sent to jail on Wed 23 Aug 2022 on the RM42m SRC International case. Still, it would be premature to argue whether he was involved in wrongdoing or otherwise, i.e. on political donation, Article 153 and related matters, and thereby committed abuse of power. In law, there’s a thin line between abuse of power and prerogative and discretionary powers. See here.
Article 153 accords Special Position, by way of a reasonable proportion, for Malay, Orang Asal and Orang Asli in four specific areas viz. intake into the civil service, intake into training institutions owned by the government and training opportunities, government scholarships, and opportunities from the government to do business. Under the Malaysian Anti-Corruption Commission (MACC) Act, government contracts are not corruption.
There’s no law in Malaysia on political donation, no law against it, and no law discouraging it. It’s an open secret that the government gives out contracts to source political donations for parties in power. For example, according to media reports, RM3b of the money spent on the vaccination programme allegedly went as political donation. If true, an abuse of power case can be made out here.
Former Sabah Chief Minister Musa Aman, facing 46 corruption charges in court, claimed that the RM380m he collected — it was from timber contracts — was a political donation. He was freed. The Inland Revenue Board (IRB) did not go after Musa for taxes on the RM380m. MACC and Bank Negara did not file civil action on money laundering activities and freeze, seize and forfeit the RM380m.
No Law On Najib Jailing
The question that arises was whether there was a law behind Najib’s jailing. If not, he may be a political prisoner and should be placed under house arrest pending Pardon. The Director General of Prison has the prerogative and discretionary powers on house arrest.
It’s obvious that someone or some people wanted Najib out of the way, permanently if possible, otherwise temporarily. They see the reform-minded Najib as a menace. Besides progressive legislation, Najib started the process of giving greater administrative powers by devolution to Sabah and Sarawak. He conceded that the Federal government had been non-compliant with the Malaysia Agreement 1963 (MA’63).
We can recall that Opposition Leader Anwar Ibrahim, who preached reforms, suffered the same fate masterminded by Mahathir Mohamad, not once but twice. Anwar, being hardcore, has moved on with Pardon. He lives to fight another day. He sees himself as the Prime Minister-in-Waiting. And Waiting. And Waiting …
If push comes to shove on taking the cue from Umno President Ahmad Zahid Hamidi, the take by Commonwealth jurisdictions on Najib’s plight may help him leave jail and continue his sentence under house arrest. It’s highly unlikely that Commonwealth jurisdictions, subscribing to the rule of law, would be unanimously against Najib. It cannot be ruled out that dissenting opinion would be in the majority. Can refer here, here, here and here.
The SRC Ruling, which does not mention the rule of law, leaks all over. It has so many loopholes that it cannot be considered perfection in writing for perfection in law. For example, the oft-cited RM42m did not come from SRC International but from a company to which Maybank gave a loan. High Court Judge Nazlan was with Maybank at that time and was in the know. Instead of being a witness in the SRC case, he presided over it at the High Court. He should have recused himself.
The internationalisation of Najib’s plight depends on how Commonwealth jurisdictions and the Commonwealth Secretary-General respond. It’s not about embarrassing the nation.
Najib’s plight can also be taken up by the International Bar Association.
Then, the matter can be taken up with the UN Secretary-General and UN Security Council.
The UN Secretary-General would refer to the International Court of Justice and International Criminal Court for Advisory Opinion.
If Pardon was about the SRC conviction, the first attempt may not succeed but Agong has discretion. Agong has reserve powers and/or residual powers as hereditary ruler. The second attempt for Pardon, if the first fails, can only be submitted three years later and thereafter every two years. See here and here.
It may be a novel development if Pardon was sought for the years 2009 to 2018 — read “for acts in office” — when Najib was prime minister. The SRC case, and other cases which Najib faces, would cease to exist. The court would have no jurisdiction over the cases and Pardon. The Pardon would be nonjusticiable i.e. not for judicial consideration and resolution. Again, the court has no jurisdiction.
Pardon, indemnification and immunity are not law. Pardon, mentioned in the Constitution as part of the role and functions of the Agong, is not law. If it was law, Pardon can be challenged.
The prime minister and Parliament may stand indemnified, and have implicit Pardon, “for acts in office” under the Basic Features Doctrine — whether written or otherwise — in the Constitution. The Basic Features Doctrine cannot be amended. It cannot be done away.
It’s clear from what transpired at the Federal Court in the week beginning Mon 15 Aug 2020 that the Chief Justice (CJ), Tengku Maimun, may have acted with impunity and fallen back on the letter of the law, by itself, as law. It’s not law at all. There’s no democracy and no legitimacy. It’s dictatorship.
There was no attempt to visit the constitutionality issues, including the Basic Features Doctrine, on the SRC conviction.
It’s a matter of public record that the 5-Person Federal Court Panel on the SRC case unanimously rejected Najib’s Application to adduce fresh evidence after denying the admission of QC Jonathan Laidlaw. The Panel also rejected the Application by the new defence team to adjourn the case by three to four months. It would have been enough to seek input from retired Federal Court judges in Commonwealth jurisdictions. The new defence lawyer, Hisyam Teh, was denied discharge from the case. It was the moment of truth when the CJ refused to recuse herself despite incriminating disclosures by her husband on FaceBook. It did not look good when the husband deleted the errant posts in his FB timeline. No one else could have done it.
The CJ conceded in court that the Panel didn’t read Defence Submission, may not do so and sees no reason to do so. Indeed, the Ruling on the SRC conviction was on the Internet before the CJ read it in court.
All these happenings in court were a violation of the rule of law, the basis of the Constitution.
Conviction Is Not First Priority
In the rule of law, it’s not the conviction that comes first. The manner in which a person is convicted takes precedence. The jury may no longer be out on whether Najib was convicted by law. It could not be when he was sent to jail by a court acting with impunity in violation of the rule of law. Again, the letter of the law, by itself, isn’t law at all. This point has been made earlier and needs reiterating in Federal Court Review.
If conviction can’t be perfected in law, there has been no conviction. This point can be stressed in the ApplicatÃ¬on for Federal Court Review of the SRC case. If the Federal Court finds the Application was not Review, but another bite at the cherry, it will declare that it has no jurisdiction and strike out the Application. See here. – 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 is 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.