Ex-PM Najib, as ‘political prisoner’, should be under house arrest
The Federal Court did not allow lawyer Hisyam Teh, after he was not given an extension of time, to discharge himself from the Appeal which began on Mon 15 Aug 2022. The court, allegedly acting with impunity, wanted a lawyer to remain on record to facilitate sentencing. No doubt it wanted to show that former Prime Minister Najib Abdul Razak had legal representation on the RM42m SRC International case. This bulldozing, for want of a better term, may have been highly irregular and unethical.
If so, the matter should be brought before the Judicial Ethics Committee. The 5-Person Federal Court Panel can be sacked by Agong.
The court has practice directions and the oft-cited “Amalan, Tatacara dan Prosedur Mahkamah” (practices, work ethics related to procedures, and court procedures) which probably was being observed in the breach.
No one can be sentenced in criminal cases if he or she was unrepresented. It can be argued that Najib was unrepresented on Wed 23 Aug 2022 when he was sent to jail by the Federal Court.
The Attorney General (AG) and courts may be inconsistent in withdrawing cases and on sentencing, perhaps because of what the parties in dispute on issues in conflict place before the court and/or send to the Attorney General’s Chambers (AGC). See here.
The Sabah Water Dept case on money laundering aside, former Sabah Chief Minister Musa Aman was freed of 46 corruption charges after he claimed the RM380m he collected — it was allegedly from timber contracts — was a political donation. AG and the Court, based on silence in the media, did not verify the claim.
There’s no proof that the Inland Revenue Dept (IRB) went after Musa for taxes due on the RM380m. MACC (Malaysian Anti Corruption Commission) and Bank Negara did not file any civil action, under money laundering laws, to freeze, seize and forfeit the RM380m.
The parties in dispute on issues in conflict cannot persuade the court if they have no courtroom skills. Lawyers with courtroom skills break down cases scientifically into the tiniest details and pursue them methodically, cross-examine, look for the law and point it out. The court will find the law and declare it.
Law, ultimately, is the power of language. No court in the world or the other side can challenge anyone who has mastered the English language, for example, and thereby can demonstrate brilliance in cross-examination and Submission. Also, it’s not possible for anyone to know the law, according to law schools running academic programmes, i.e. there are no right or wrong answers in law but only answers which can help persuade the court and bring closure.
If the Debate can go back and forth, it will go back and forth, until closure. The last man left standing will prevail. In the SRC case, the Federal Court did not allow the Debate to go back and forth. It rushed to judgment. It was a case of hurried justice burying justice. See here.
The court rules based on what’s placed before it. Often, it includes obiter dictum – opinion of a judge in court – in Ruling. This should not happen in the rule of law. Again, contrary to public perceptions, the court does not decide. The decisions are taken in Submission by parties in dispute on issues in conflict. The court Rules on the decisions.
On Wed 23 Aug 2020, there were no decisions by the defence team. The Chief Justice (CJ) in fact told the defence team that they didn’t read anything from them, may not do so, and sees no reason to do so.
There was no Written Submission and no Oral Submission in the Federal Court by the defence team as they weren’t given time. The 5-Person Panel fell back on the High Court and Court of Appeal Rulings, Submission in the Court of Appeal, and Submission by Prosecution in the Federal Court to send Najib to jail.
There was no due process in the Federal Court. The defence wasn’t given the right to be heard, the right to reply and the right of rebuttal.
Questions arise on whether it was possible for Najib’s conviction to be perfected in law i.e. proper procedures being followed. In the rule of law, the manner in which an accused was convicted comes first. The conviction cannot take precedence over the rule of law. It must comply with the basis of the Constitution.
Nothing in the Penal Code allows for retrospective prosecution for “acts in office” of a previous gov’t. The Doctrine of Separation of Powers, the fallback position, presides. If the judiciary interferes in executive matters, the government can act through the AG. The AG is part of the government, not part of the judiciary.
Prime Minister Ismail Sabri could have directed AG Idrus Harun to withdraw the Prosecution in the Federal Court on the SRC case. Since he didn’t do that, Umno can sack him summarily for anti-party activities. Ismail Sabri can’t remain Prime Minister partyless. The Agong will advise him to resign. If he refuses to do so, the Agong can appoint a new Prime Minister, by falling back on his reserve and residual powers. In that case, Ismail Sabri stands automatically sacked.
The next PM — not Ismail Sabri — can direct the AG to withdraw political cases in court. Under Article 145, he can withdraw cases based on letters of representation, or otherwise. The PM can direct the AG not to oppose Najib’s Federal Court Review on the SRC case. See here.
The Basic Features Doctrine — whether written or otherwise — in the Constitution holds that the Prime Minister stands indemnified, has immunity and an implicit Pardon for “acts in office”. The jury may no longer be out on the issue. The court has no jurisdiction. “Acts in office” are nonjusticiable i.e. not for judicial consideration and resolution. Indemnification, immunity and implicit Pardon and Pardon are not law. The court of law is only about law.
Petition For Pardon
If Najib Petitions for Immediate Pardon for his tenure in office — read ‘acts in office’ — from 2009 to 2018 as prime minister, the three SRC Rulings will become academic and cease to exist as if they never existed. No court will go against Agong on Pardon. If Agong says there has been a miscarriage of justice, there has been a miscarriage of justice, and that merits Pardon. Miscarriage of justice merits immediate Pardon. There’s a miscarriage of justice if the manner in which a person was convicted wasn’t based on the rule of law. Conviction doesn’t take precedence over the rule of law. See here.
Immediate Pardon is about not leaving the wronged behind bars. Immediate Pardon isn’t for those who did wrong, but for those who were wronged and those who may be wrong. Agong can issue immediate Pardon for Najib and right the wrong done i.e. miscarriage of justice. Pardon isn’t law but it is the Agong’s discretion. Those who did wrong may be pardoned after they serve some of the sentence.
Agong has residual powers and/or reserve powers as mentioned in the Perak case law 2009 and the 1st Sept 2020 Federal Court majority Ruling on Sabah. He has discretion arising from the hereditary rule. The Federal Court held that the Sabah Governor, not being sultan, has discretion only mentioned in the Sabah Constitution.
If the nature of human relationships needs to be regulated, it can be done by the rule of law or other approaches. Except for out-of-court settlements, the court of law cannot take other approaches. The court cannot act with impunity and fall back on the letter of the law, by itself, as law. It’s not law at all but dictatorship.
In the rule of law, there’s a greater emphasis on the spirit of the law, albeit read with the letter of the law.
There are also other areas which demonstrate why Najib’s conviction could not have been perfected in law. If so, there was no conviction.
The Federal Court rejected as hearsay fresh evidence which could have proven that High Court Judge Nazlan was in a “conflict of interest” situation when he presided over the SRC case. He should have recused himself. The hearsay, being admissible, would have rendered SRC in the High Court a mistrial. The Federal Court would have to set aside the High Court Ruling. It can send the case back to the High Court to be heard before a new judge or hear it in the Federal Court.
The onus is on Agong to advise the Chief Justice, Tengku Mainun, to drag Judge Nazlan before the Judicial Ethics Committee before sacking him. Once Judge Nazlan was sacked, the SRC Ruling will cease to exist as if it never existed. Najib would be freed. If Judge Nazlan had ruled that the High Court has no jurisdiction in the SRC case, the matter of recusal would not arise.
The Federal Court also rejected an Application by Najib’s new defence team for an extension of time, three to four months, for the SRC Appeal in the Federal Court. The Apex court, in a demonstration of irrationality, disproportionality and unreasonableness, would not consider extension by even a day. It was a gross violation of the rule of law. It’s clear that where there are rights, there are remedies.
Prison Data Bank
Already, according to media reports, Najib’s name isn’t in the prison data bank. Obviously, this prevents challenges. If the conviction was not perfected in law, it cannot be in the prison data bank.
The Director General of Prison may have demanded proof from the Federal Court that Najib’s conviction was perfected in law. In the absence of immediate proof, he may have left out Najib’s name from the prison data bank. The matter is nonjusticiable. The DG has the prerogative and discretionary powers. Such powers are not law and therefore cannot be challenged in a court of law.
The DG, given the fact that Najib’s name cannot be in the prison data bank, can make a determination that he’s a political prisoner and thereby place him under house arrest. The court has no jurisdiction. Again, the DG has the prerogative and discretionary powers.
The Home Minister has no say. If the Home Minister prevents the DG from placing Najib under house arrest, the former prime minister can appeal to the DG and the Home Minister and finally drag both to the High Court. The High Court might say it has no jurisdiction. That necessitates further appeals to the court of appeal and Federal Court on abuse of power. The “bad” Raja Azlan Shah case law on abuse of power can be cited. Even bad law and/or invalid and unlawful law is valid until ruled otherwise by the court.
Najib, as a political prisoner, may spend most of his time either in a hospital — locally or abroad — unless he’s placed under house arrest.
According to media reports, he has already been admitted to the hospital. Admission of prisoners to hospitals comes under the prerogative and discretionary powers of the DG of Prisons. These powers are not law. The court has no jurisdiction. The court of law is only about law.
Mahathir wanted Najib out of the way, permanently if possible, otherwise temporarily. His idea may not be about letting Najib suffer and rot in jail but about putting the Mahathir family in power. DAP seems willing to go along. Mahathir has been building up public perceptions against Najib in the media from even before GE13 in 2013. It was Trial by Media. – 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.