The ‘conviction’ of former Premier Najib Razak on RM42m SRC International case could not have been ‘perfected in law’
It can be recalled that ex-Chief Justice Abdul Hamid questions Chief Justice Maimun’s appointment and argues that it may have been based on illegalities. This matter cannot be swept under the carpet. It should be explained by the stakeholders as well who were involved in convicting Najib on the RM42m SRC International case.
The ex-CJ cites, perhaps inadvertently, Attorney General Tommy Thomas’ memoirs, “My Story: Justice in the Wilderness” as proof. In that case, to reiterate, former Prime Minister Najib Abdul Razak wasn’t wrong when he wanted the CJ, Maimun, to recuse herself.
Read here: Patutkah DS Najib diberi pengampunan (Should Najib receive Pardon)
If CJ Maimun, examines the conscience, she would concede that she was not properly appointed, and for this reason and her husband’s allegedly hostile postings on FaceBook which would have probably influenced her, she should have recused herself on Mon 15 Aug 2022 when the Appeal began in the Federal Court on the RM42m SRC International case. She’s being presumptuous in asking critics to read before commenting on court cases. Many people do read before commenting. Here … here … and here.
Some questions follow in the social media for the CJ.
Again, CJ Maimun would concede, if she examines the conscience, that Najib was jailed on Wed 23 Aug 2022 without being convicted. It can be argued that there was no conviction because it could not be perfected in law. The Federal Court declared finality of closure prematurely when in fact there was no closure i.e. the conviction could not be perfected in law.
Manner of Conviction
In the rule of law, the basis of the Constitution, the manner in which a person was convicted comes first. Conviction comes next but only if it can be perfected in law viz. according to procedures — read practice directions and “amalan, tatacara dan prosedur Mahkamah” (practices, practices related to timeline on court procedures and court procedures) — in accordance with the rule of law.
Najib was unrepresented on Wed 23 Aug 2022 when he was jailed. Lawyer Hisyam Teh had already discharged himself shortly after the Appeal began in the Federal Court on Mon 15 Aug 2022. He was not given the extension of time, three to four months, that he requested.
The criminal justice system, under our adversarial system of justice, cannot jail a person who was unrepresented. The court must bend over backwards to be fair.
Najib Was Unrepresented
The CJ did not allow lawyer Hisyam Teh to discharge himself. That’s virtually a scam on paper to show that Najib was represented on Wed 23 Aug 2022 when he was taken away and jailed.
The Federal Court refused to allow the Debate to go on back and forth. If the Debate can go on back and forth, it should be allowed, in accordance with court procedures and the rule of law. The finality of closure will come when the Last Word prevails.
The Federal Court did not allow Najib to adduce fresh evidence mostly involving Judge Nazlan. It dismissed the Application as hearsay which had nothing to do with the RM42m and besides the five witnesses were covered by the Official Secrets Act 1972 (OSA). It was not about the RM42m but admissible hearsay on why Judge Nazlan stands recused. It can be argued that the OSA does not cover oral testimony — read cross examination with no written witness statement — in court. The Attorney General (AG) can’t go after the five witnesses for breach of the OSA for oral testimony allowed by the court. Read here .
The Prosecution had Submission in Federal Court Appeal. The Defence had no Submission, not even Oral. The CJ said that the 5-Person Panel didn’t read anything from Defence, saw no reason to do so, and may not do so. It fell back on the Submission from the Prosecution in the Federal Court Appeal, the Defence Submission in the court of appeal and the Rulings in the two courts i.e. High Court and court of appeal.
If the Najib Administration 2009 to 2018 stands indemnified, has immunity, implicit Pardon for “acts in office” under the Basic Features Doctrine of the Constitution, the High Court had no jurisdiction. In that case, Judge Nazlan should have struck out the case. The question of liberty to file afresh does not arise when the matter involves no judicial consideration and no judicial resolution.
If the High Court has jurisdiction, Judge Nazlan should have struck out the case on the grounds that the Prosecution could not produce two material witnesses viz. fugitive fund manager Jho Low and SRC CEO Nik Faisal Ariff Kamil. Nik Faisal managed Najib’s account/s which received the RM42m. We don’t know the 1MDB Story. It’s out there somewhere. Without the duo, who had roles in 1MDB, there’s no proper closure, making Najib’s conviction always open to speculation.
1MDB For Political Donation
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”. Link.
RM3.6b Frozen In Switzerland
Judge Nazlan also stands automatically recused based on “conflict of interest” issues. He was previously with MayBank and was in the know on the proposed formation of a strategic resources company — read SRC International — and the extension of loans to probably SRC related companies. In fact, the RM42m came from a SRC-related company, not SRC International as reported by the media.
SRC was about a RM4b loan from KWAP, the retirement fund. RM3.6b, as it emerged in court, was frozen in Switzerland pending clearance that it wasn’t related to illegalities i.e. money laundering activities. Therein, the matter lies.
The Pakatan Harapan (PH) government, installed on Thurs 10 May 2018, didn’t pursue the matter. The Perikatan Nasional (PN) government, which seized power by the backdoor on Sun 1 Mar 2020, didn’t pursue the matter. The Ismail Sabri government, which took power on Sat 21 Aug 2021, isn’t pursuing the matter.
House Arrest For Najib
Najib must be freed by the court, the Director-General of Prisons or placed by the DG under house arrest as a political detainee. The DG has discretion. The court has no jurisdiction on the DG’s discretion.
It’s said that the court can only consider what’s before it. The court cannot read minds.
The reality is that the court may disregard what’s before it and go off at a tangent from Submission. It may fall back on obiter dictum — opinions of a judge — and the letter of the law, by itself, as law — it’s not law at all but dictatorship — and act with impunity.
Najib’s QC Jonathan Laidlaw from England is a case in point. The High Court, with a straight face, denied him ad hoc admission on the grounds that he didn’t know Bahasa Kebangsaan (national language).
In fact, Order 92, Rule 1, of the Rules of the High Court 2012 on Bahasa Kebangsaan may be redundant.
The following case study explains better on Article 152 (Bahasa Kebangsaan).
An Applicant filed an Originating Summons (OS), not so long ago, at the High Court of Malaya on Order 92, Rule 1, of the Rules of the High Court 2012 (Bahasa Kebangsaan). She attached a certificate of urgency.
In certificate of urgency cases, the matter is heard within days. In the Applicant’s case, the OS has yet to be heard. There has been no response from the court.
No Locus Standi
Briefly, the matter arose because the other side insisted that she comply with the National Language Act 1963/67 under Article 152 and file cause papers in Bahasa Kebangsaan. It’s not the work of the other side to enforce the National Language Act in court. It has no locus standi.
The Applicant argued in the OS that the 20K word Bahasa Melayu — the national language based on the Johor Rhio Lingga version in popular usage — fell into official disuse by 1969 when the 40K word Bahasa Malaysia emerged. Bahasa Malaysia isn’t the national language.
Indonesia has declared that neither Bahasa Malaysia nor Bahasa Indonesia are Bahasa Melayu and vice versa.
Therein lies the matter.
The Chief Justice, Maimun, should direct the High Court of Malaya to respond on the OS regarding Order 92, Rule 1, of the Rules of the High Court 2012 (Bahasa Kebangsaan).
The OS proves that the High Court was wrong to deny Laidlaw ad hoc admission based on the Bahasa Kebangsaan criteria. – 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.