High Court Ruling against Rosmah noted ‘political contribution’ mentioned, did not explore status of contract . . . whether valid and/or fraudulent project!
It’s not clear, in keeping things in perspective, whether Rosmah Mansor’s lawyers visited the constitutionality of “disproportionate” punishments in statute cited against their Client in the RM1.25 billion solar hybrid power energy project in Sarawak. In all likelihood, they didn’t as there was nothing in the media. See here.
“It’s a bit of a mystery exactly on what skills lawyers bring to bear on cases in court,” cautions the law schools and this may be related to the solar project. Law, ultimately, is the power of language viz. the English language and best sums up constitutionality issues as well. There cannot be perfection in law without perfection in writing. Again, in keeping things in perspective, the “it’s not possible for anyone to know law” mantra permeates the content in law schools.
In jurisprudence, constitutional law and the rule of law — the basis of the Constitution — “disproportionate” punishments are unlawful. In law, the punishment must fit the crime i.e. culpae poenae par esto, otherwise injustice will reign. The more that a nation neglects this basic principle of justice, the more that injustice will reign in that nation. If there’s increase in corruption, for example, there’s no reason why the individual should suffer. The High Court, in meting out disproportionate punishment against Rosmah, held that the nation had moved beyond the Biblical “an eye for an eye, and a tooth for a tooth” maxim in the battle against corruption.
The Constitutional Court can visit the constitutionality issues on Rosmah — without mentioning her name — in the High Court Ruling.
This can be done separately by Originating Summons (OS) at the High Court for declaration on point/s of law and/or during the court on Rosmah’s conviction on the solar project.
The rule of law remains the basis of the Constitution. In interpreting the Constitution with reference to Rosmah’s conviction, the Federal Court sitting as the Constitutional Court, will visit the intention of the framers of the Constitution and the intention of Parliament on any amendments to the supreme law of the land on “disproportionate punishments”. The Constitution cannot go against itself. The High Court will refer the OS to the Federal Court. Malaysia does not have a Constitutional Court. The Federal Court can sit as the Constitutional Court.
It may be safer to file the OS and at the same time raise the constitutionality issue/s during the Appeal in the court of appeal. If Rosmah’s lawyers are still hesitating on the OS, it’s high time that they look at the Big Picture and shed their delusions and illusions, if any, on the rule of law. I stand corrected.
Disproportionate punishments are defects which can be cured by the Constitutional Court and/or Parliament. Retrospective legislation is unlawful. The Constitutional Court may provide relief for Rosmah in the court of appeal if declaration can be taken as remedy by way of “Advisory Opinion”. Generally, declarations provide no remedy.
When the court loses the way, only Parliament can cure the defect. Famous American lawyer Alan Dershowitz cautions that “Judges are the weakest link in our system of justice, and they are also the most protected.”
When Parliament goes against the Constitution, only the Constitutional Court can cure the defect.
Government Contracts Not Corruption
Corruption can be defined beyond statute as “the act of making everything one touches to go bad” viz. corruption isn’t confined to simple and giving. In law, bribery stands defined as deriving personal benefit based on corruption arising, if applicable, from abuse of power, and perhaps conflict of interest, and criminal breach of trust.
The MACC Act 2009 sees government contracts as not corruption. There’s no due diligence and no forensic accounting on the money trail even if the contracts are inflated i.e. twice, thrice or even up to ten times what it should cost the tax payer. The Hansard in Parliament shows the number of inflated government projects which entered the debate. These were reported by the media. Let’s not go there.
There appears to be a thin line at MACC between bribery and political donation. There’s no law in Malaysia on political donation.
Former Sabah Chief Minister Musa Aman, for example, was freed of 46 corruption charges on Mon 8 June 2020 after he claimed that the RM380m he collected — they were from timber contracts — was political donation.
The Ruling in the solar project notes that the term “political contributions” permeated the conversation.
Generally, when a contract ends up in court, the judge under contract law would look at whether it was valid in law i.e. not one-sided, for example. If a contract is invalid, the matter ends there in the civil court. The court has no jurisdiction.
If there has been cheating perpetuated in the invalid contract, it’s a matter for the police and the criminal court.
We are left no wiser by the High Court Ruling on whether the solar project in Sarawak was a fraudulent project. It was suspended court of appeal Judge Hamid Sultan Abu Backer who discovered that civil servants and companies were in cahoots with judges to defraud the government of millions through fraudulent contracts. See here.
No one in Sabah and Sarawak believes, based on the history since 1963, if it’s claimed that the Federal government approves billion ringgit projects in the Borneo Territories. The RM30b Pan Borneo Highway, initiated by Najib Abdul Razak as Prime Minister before GE14, was an exception. It was aborted by Mahathir Mohamad who succeeded him on Thurs 10 May 2018.
The RM1.25 billion solar hybrid power energy project in Sarawak reads as a complete surprise in the Borneo Territories.
Better Kill Me, Says Rosmah
Ad hoc Prosecutor Gopal Sri Ram, whose appointment by the Attorney General does not cover the solar power project, raged in court. “the maximum or a near maximum sentence should be imposed … corruption is a very serious offence.”
Upon hearing this, Rosmah remarked: “Might as well kill me.” See here.
After the verdict against her, according to the media, a tearful Rosmah said that she had never taken for herself a single sen in the solar project. Rizal Mansor, Rosmah’s former aide, allegedly collected the bribes and/or political contributions, but instead of bearing the brunt of his alleged misdemeanour, he became the witness for the prosecution.
“I must admit that I am very sad with what happened today,” she said, adding, “Nobody saw me taking the money, nobody saw me counting the money … but if that’s the conclusion, I leave it to God.”
Ironically, she doesn’t know the company involved in the solar project.
The Ruling shows Rosmah having conversations with the husband, Najib, but these were dismissed as hearsay by the court. Najib was not called as Witness although in law — read the Evidence Act 1950 — the hearsay was admissible evidence.
Instead, based on audio, the High Court held that Rosmah controlled the husband. Subject matter experts have concluded that after a woman gives birth to the first child, the husband in fact becomes “the first child” as the mothering instinct takes over in the family.
It’s not clear whether there was a line drawn between obiter dictum — opinions of a judge in court — and the High Court Ruling based on ratio decidendi i.e. the point in a case that establishes the judgment or the principle that the case establishes. Obiter dictum should not enter the Ruling at all. – 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.