Ex-Chief Justice Mistaken On Pardon for Najib

Mahathir wasn’t ‘wrong’ on Pardon for Anwar Ibrahim outside Pardons Board!

There are some liberating moments in former Chief Justice Abdul Hamid Mohamad’s take, in his Blog, on the much talked about Pardon for former Prime Minister Najib Razak and the Pardons Board.

Readers may want to visit the website and see for themselves that Najib wasn’t wrong when he wanted the CJ, Maimun, to recuse herself. See here . . . Patutkah DS Najib diberi pengampunan (Should Najib receive Pardon).

In fact, the ex-CJ questions the eligibility of the 5-Person Panel that presided over the Federal Court Appeal on the RM42m SRC International case. The ex-CJ also questions Maimun’s appointment as CJ and argues that it may have been based on illegalities. He cites, perhaps inadvertently, Attorney General Tommy Thomas’ memoirs, “My Story: Justice in the Wilderness” as proof.

Ex-Chief Justice Abdul Hamid Mohamad, in his take on Pardon, questions the eligibility of the 5-Person Panel that presided over the Federal Court Appeal on the RM42m SRC International case. - NMH filepic
Ex-Chief Justice Abdul Hamid Mohamad, in his take on Pardon, questions the eligibility of the 5-Person Panel that presided over the Federal Court Appeal on the RM42m SRC International case. – NMH filepic

Based on jurisprudence, constitutional law, and the rule of law (the basis of the Constitution), the former Chief Justice can’t think that Najib should not receive Immediate Pardon. More on that later . . .
See here.

The former Chief Justice’s take on corruption was also flawed. There’s no reason for the individual to be victimised, and saddled with disproportionate punishment, just because there’s increase in corruption in society. In Judeo-Christian traditions, which permeate secularism and the Constitution, justice for the collective cannot be at the expense of the individual. Western civilisation, based on individualism, treasures the freedom of the individual. If society needs freedom as well, it can’t be at the expense of the individual.

Gov’t Contracts Not Corruption

Under the MACC Act 2009, government contracts are not corruption although they may be inflated or even bogus. The Contract Act does not recognise bogus, i.e. fraudulent, contracts. The civil court has no jurisdiction on fraudulent contracts. If there has been cheating, it’s a matter for the police and the criminal court.

Corruption can be defined as the act of making everything one touches to go bad. This goes beyond the MACC Act 2009 which confines itself to simple giving and taking activities. Often, it’s the taker who gets dragged to court, while the giver becomes prosecution witness based on plea bargaining. There’s no plea bargaining in Malaysia under the adversarial system of justice. Plea bargaining happens in America, for example, as seen in courtroom drama on TV. It may happen in other jurisdictions too but not in the Commonwealth. There’s no place for plea bargaining in Malaysia’s criminal justice system.

Pardon via the Pardons Board

If we read the ex-CJ accurately, he thinks that all Pardon should go through the Pardons Board. Otherwise, he claims that its existence serves no purpose. This erroneously advocates a “one prescription fits all” approach.

Inmates, based on media coverage on the Pardons Board, can Apply for Pardon the day they are incarcerated. It’s highly unlikely the Pardons Board reads the 1st Petition. There may be no reason to do so. Inmates can lodge a 2nd Petition three years later. It’s more than likely that the Pardons Board would read the 2nd Petition. If it fails, the inmate can send in Petition for Pardon, thereafter, every two years until they succeed. Generally, probably all inmates are eligible for Pardon, provided they have served at least half of the two-thirds of the sentence. They may be placed on Parole before Pardon.

There are criminals and then there are criminals. Najib and Anwar are not two-bit criminals.

Anwar, to digress a little, has taken a holier than thou position on Najib. The media has reported him as saying that there are no parallels, no basis for comparison, between his Pardon and Najib’s Petition for Pardon. Then, he went on to say that he’s against corruption, implying that Najib was corrupt.

Anwar, in cahoots with Mahathir Mohamad, placed illegal immigrants on the electoral rolls in Sabah under Projek IC. The project saw illegal immigrants born outside Sabah being given late registration birth cert and Malay MyKad. See here. The corruption here is holistic i.e. non-compliance with the National Registration Act 1959/1963. There are also elements of sedition and treason.

Political Reasons

Najib and Anwar were imprisoned for political reasons i.e. Mahathir and those behind him — read Daim Zainuddin & Co — wanted their political rivals out of the way, permanently if possible, otherwise temporarily for “buying time”. Mahathir wants his family installed, permanently if possible, in power.

In short, the Prime Minister would be some sort of Super Agong, if the Mahathir family has its way. The Yang DiPertuan Agong and brother Rulers – the Sultans – should view this emerging insidious development as seditious activity and tantamount to treason, based on obstruction of justice, a heinous crime in the US, for example. If no court would consider conspiracy theories, the Agong can look into the matter in exercising discretion.

Najib and Anwar suffered miscarriage of justice and were incarcerated without conviction being perfected in law viz. without procedures being followed and in violation of the rule of law. If Agong says there has been miscarriage of justice, there has been miscarriage of justice, and that merits Immediate Pardon. The Pardons Board does not enter the picture on Immediate Pardon.

In the rule of law, the manner in which a person was convicted comes first. Conviction comes later. The conviction must be perfected in law. It isn’t enough for the judge to sign the conviction after recording in writing following pronouncement. That’s no proof that the conviction has been perfected in law. If conviction hasn’t been perfected in law, there has been no conviction. The court should release the person imprisoned.

Power of Language

If the court refuses to free the person who carries no conviction, he or she becomes a political prisoner. The court cannot fall back on the finality of closure approach in refusing to free a person who carries no conviction. If conviction has not been perfected in law, there has been no finality of closure. In jurisprudence, it’s not possible for anyone to know law. In fact, there are no right or wrong answers on law but only answers which can persuade the court before it declares finality of closure. Law, ultimately, is the power of language. It’s not possible for anyone to exercise power of language unless he or she has mastered it.

The Agong enters the picture. He has discretion based on reserve powers and/residual powers, arising from hereditary Rule. The Perak case law 2009 and the Federal Court’s majority Ruling, on 1 Sept 2020, on the Sabah Constitution refer.

The DG of Prisons also has prerogative and discretionary powers — they are not law — to release a person, who carries no conviction, from prison. The court has no jurisdiction.

The ex-CJ belabours in the “delusion” — for want of a better term — that Mahathir, Prime Minister for the second time from Thurs 10 May to 2018 to Mon 24 Feb 2020, was “wrong” in winning Pardon for Anwar Ibrahim without going through the Pardons Board. The “precedent” was a “mistake”, according to the ex-CJ. He pointed out that Anwar was being cited by Najib in Petition for Pardon. Pardon for Anwar did not open the floodgates, Pandora’s Box did not open, in law the line drawn somewhere did not shift. It remains unchanged.

Wrongdoing

Pardon, in the case of convictions not perfected in law, are not about wrongdoing. It’s about someone who has been wronged. It can also be about someone who may be wronged. In the US, for example, the President even grants Pardon to those who have not been dragged to court or there’s no risk of them facing charges. US President Trump granted Pardon to daughter Ivanka, and her husband Jared Kushner, two days before he stepped down on 20 Jan 2021 amidst allegations that there was no electoral integrity on 3 Nov 2020 in the US Presidential elections. Anyway, let’s not go there on electoral integrity.

If Pardon for Anwar was “mistake”, it can be challenged provided the court of law has jurisdiction on the matter. The Pardon isn’t justiciable i.e. not for judicial consideration and resolution. Indemnification, immunity and Pardon are not law but based on the Agong’s discretion and the Basic Features Doctrine — written or otherwise — in the Constitution.

Immunity, in the case of diplomats, is based on reciprocity of arrangements i.e. between arrangements.

The ex-CJ presided over a court of law. He has fallen back on that experience in pontificating sanctimoniously, by way of obiter dictum outside court and/or jurist (legal scholar) commentary and analysis, on the role and functions of the Pardons Board. He does not look at the big picture — i.e. everything being connected to everything else — and does not connect the dots.

Intention

It can be argued that the intention of Parliament and the framers of the Constitution on the Pardons Board could not possibly exclude special circumstances, exceptions, qualifiers, caveats, ifs and buts. It’s reality that life isn’t black and white but comes in various shades of grey.

In the rule of law, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law. The letter of the law, by itself, isn’t law at all. It’s dictatorship i.e. based on rule BY law and/or rule by Man.

In the rule of law, law rules, the greater emphasis being on the spirit of the law. It’s the work of lawyers to look for the law and point it out. The court finds the law and declares it. Only the court can declare law. Opinion isn’t law.

Parliament passes and/or makes laws but can’t declare them. If Parliament is unhappy with the laws the court declares, it can revisit the issue and amend and/or pass new laws which nullify the laws declared by the court. Again, the court can look at the intention of Parliament on the new laws and declare them. Parliament cannot go against the Constitution. The Constitution itself cannot go against itself. – 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 NMH.


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