DAP’s Kit Siang Should Push For RCI On 1MDB

The public has the right to know the entire story of 1MDB’s ‘failure’ & DAP’s say on it

DAP’s Lim Kit Siang should be at the forefront in pushing for the Royal Commission of Inquiry (RCI) on the 1MDB Story. An RCI on the RM3.5b SRC funds frozen in Switzerland would be quicker while that on Judge Nazlan can be completed in 14 days i.e. before GE15.

The public has the right to know the entire story on the Finance Ministry-owned financial vehicles.

The RCI can even focus on the larger story viz. the 2009 to 2018 Najib Administration. In that case, the RCI may find that former Prime Minister Najib Abdul Razak stands indemnified, has immunity, and an implicit Pardon under the Basic Features Doctrine — whether written or otherwise — in the Constitution.

If true, wrongdoing does not arise in Najib’s Administration. The court has no jurisdiction. RCI will demonstrate that Najib does not belong in jail for even a day. RCI isn’t court of law, does not punish, or recommend punishments, but has great moral authority in speaking truth to power and helping find finality of closure based on reconciliation.

The nation, healed, can put the past behind — read 2009 to 2018 — and move forward on living with the virus in the post-pandemic years and rebuilding the economy battered by disruptions in the global supply chain and international logistics and rethink on globalisation.

Pardon, whether implicit, Immediate or for wrongdoers, isn’t law. The Agong has discretion. The matter is nonjusticiable viz. not for judicial consideration and resolution.

Constitutional Supremacy

The Constitution, it must be noted, isn’t law but has the force of law, is based on the ultimate political documents which set forth the governing institutions of state — the Federation of Malaya Agreement 1948, the Federation of Malaya Independence Act 1957, and the Malaysia Agreement 1963 (MA’63).

If the Constitution is the supreme law of the land, it’s because Malaysia is governed by Constitutional Supremacy, not Parliamentary Sovereignty. The Doctrine of Separation of Powers decides.

Conventions, the working of the Constitution, isn’t law. No court will go into conventions. It has no jurisdiction. The court of law is only about law.

Najib’s plight and fate can only be decided on the basis of whether there’s law or no law from 2009 to 2018. No court has been willing to visit these years in administration.

Instead, the former prime minister has been made the scapegoat and jailed by the Federal Court, although unrepresented, on Wed 23 Aug 2022.

The conviction could not be perfected in law. It means there was no conviction. Najib remains in jail as a political prisoner. He can send a letter of representation to the Director-General of Prisons. He can plead to be released or alternatively, placed under house arrest pending Immediate Pardon from the Agong. The Federal Court in Review can free him, on the basis that there was no conviction. Let’s keep our fingers crossed.

DAP’s Anti-Najib Narrative

Now, in the absence of RCI, stories on 1MDB are being told from the middle or from angles which suit the convenience of the narrator.

Instead, Kit Siang is challenging Umno leaders to condemn 1MDB as a financial scandal.

That’s like putting the cart before the horse. Earlier, Kit Siang held out the prospect of working with Najib, in taking the cue from the “Malu Apa BosKu” #JusticeForNajib, if he condemns 1MDB as a financial scandal. Kit Siang doesn’t ask Mahathir Mohamad to condemn his administration from 1981 to 2003 and 2018 to 2020 as nothing but dictatorship.

The Singapore Straits Times held “That, in turn, gave well-positioned Umno leaders, particularly the president, the power to control the patronage process through the creation of political slush funds disguised as businesses, such as 1MDB, that funded the party’s activities nationwide“.

Mahathir Family In Power

The crux of the matter on Najib may be Mahathir, in cahoots with the Opposition including Kit Siang and certain media, eroding public confidence in the IPO (initial public offering) announced by 1MDB.

The abortion of the IPO in the midst of public controversy may have virtually struck a mortal blow.

Even without the IPO, media reports show that 1MDB’s assets exceeded liabilities by several billion ringgit but the public confidence was no longer there. Public perceptions were against the ruling BN (Barisan Nasional) government. The rest is history.

The court has no jurisdiction over Privileged Communication. Yet, Mahathir and those in cahoots with him — read The Sarawak Report and western intelligence agencies — were somehow able to virtually hack into 1MDB’s privileged communication in email, probably distort them, and flood the social media with them. The privileged communication even found its way to the Dept of Justice (DoJ) in the US. Media reports revealed that one MACC Chief, in cahoots with Mahathir, provided the DoJ with “incriminating evidence” against the Najib administration.

In jurisprudence, no court would enter into the prerogative and discretionary powers of government and management. Of course, there’s the Raja Azlan Shah case law on abuse of power. In fact, this is a “bad law” which can only be read in isolation.

It falls apart if read with other laws, the Constitution and on indemnification and implicit Pardon, immunity, and the Agong’s discretion on Immediate Pardon for those wronged and Pardon for wrongdoers.

Open Secret

It’s an open secret that Mahathir, from even GE13 in 2013, manipulated the media — an unthinking animal — to build up public perceptions against Najib just as it was done earlier against Anwar Ibrahim. He wanted his family installed in power. That meant getting Najib out of the way, permanently if possible, otherwise temporarily for the Mahathir family. They needed to “buy time” against their political rivals.

No court will go into conspiracy theories but an RCI would want to hear them, lest there are elements of obstruction of justice, a heinous crime in other jurisdictions.

In Malaysia, the court would dismiss obstruction of justice as conspiracy theory and declare it has no jurisdiction. In Sodomy 1, for example, Anwar screamed “political conspiracy” until he was hoarse. Judge Augustine Paul advised him to focus on the charges.

In Sodomy 2, I advised Anwar that his best bet was to delay the case for as long as possible. It took nearly nine years before he was convicted. Anwar was “fixed”, given the manner in which the charges were framed.

Federal Court With Impunity

In Najib’s RM42m SRC International case, the Federal Court did not allow the debate to go back and forth for the finality of closure. Instead, the court did not pay even lip service to the rule of law but acted with impunity. It fell back on the letter of the law, by itself, as law. It’s not law at all but dictatorship.

In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law.

The RCI will find that the manner in which a person was convicted comes first in the rule of law. Conviction comes later if there has been compliance with procedures and the rule of law.

Otherwise, there has been no conviction. 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 a conviction has not been perfected in law, there has been no finality of closure.

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. — 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 NMH.

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