Many people are missing the thesis statement on Pardon.
No court can go against Agong if he grants a Pardon.
The only reason for Pardon is miscarriage of justice.
Whether there was really miscarriage of justice is besides the point. The matter is nonjusticiable.
Having said that, the allegedly tainted court Rulings against Najib, based on allegedly highly personal and offensive remarks by the judge/s, are unsustainable in law.
The principles of natural justice come into play.
In mitigation, Najib has been in public service for most of his life. “Malu apa BossKu.”
S. 87(1) of the Court of Judicature Act 1964 says that if the criminal case originated in the High Court (i.e. the court of first instance ), the case can go on appeal all the way to the Federal Court and Review.
Only non-Malay think that Najib will be locked up for 12 years, and suffer further jail in default after failing to pay RM210m fine, and the wife will be in the cell next door.
When Najib returns as Prime Minister, Mahathir and Family will be dragged to justice for alleged money laundering. It was this fear that made Mahathir block Anwar Ibrahim from becoming Prime Minister.
It’s the guilty conscience that kills. Mahathir stays in a glasshouse and throws stones. In the latest outrage, he said that Najib will be the first convict to be Prime Minister. That’s contempt of the Istana.
Kerana mulut, badan binasa . . . it’s the mouth that brings misfortune.
Anwar had publicly sworn after he was sacked as Deputy Prime Minister, Deputy Umno President and Finance Minister in 1998, that he will drag Mahathir and Family to justice for alleged money laundering.
Najib once said that if Mahathir can be Prime Minister for 22 years, he can also serve for that many years.
Mahathir was in fact Prime Minister for 24 years i.e. including from Thurs 10 May 2018 to Mon 24 Feb 2020.
Najib was Prime Minister for nine years from 2009 to 2018. That means, he would want to serve another 15 years.
Penang lawyer Terence Yeoh, staying in Shah Alam, claims in FB that he will be having lunch today with a retired Federal Court judge.
He plans to bring up my “unconventional” views on the Najib case.
I advised him to ask CJ Richard Malanjum, noted for lecturing lawyers and the court on the spirit of the law.
The Pardon remains the issue.
Focus on the issue.
In jurisprudence and criminal law, miscarriage of justice is even more important than the commission of crimes.
Those who are interested can research the concept.
Having said that, suffice it to say, that if Agong says there has been miscarriage of justice, there has been miscarriage of justice. It can’t be said that Agong does not know. Agong knows even when he doesn’t know.
There’s no need for anyone to curry favour with the other side by degenerating into highly personal and offensive remarks and name-calling in FaceBook . . . “mediocrity”, “theGreat”, “unpopular Blog”.
My “M’sia not tanah Melayu” blog piece, for example, generated nearly 150K hits and still continues to draw attention. That’s not an exception.
The “If I was Agong” series generated over 60K hits each.
Others were dragged to Court for “humiliating and insulting Agong”.
The police didn’t come knocking on the door because the series was about me as Agong and the spirit of the law on the changing of the Guard, Emergency and Pandemic.
No one could rebut me.
Anyone is free to rebut my blog pieces. We need a free flow of thoughts.
No highly personal and offensive remarks and name-calling. We have to draw the line somewhere.
My blog is about what the online media does not allow.
The online media exercises self-censorship, imposes censorship and denies the right of reply. The social media will bury the online media after killing the print media.
The social media has a self-correcting mechanism.
Except on Pardon, all that I posted on law in your FB wasn’t from me. It was from the University of London. Other universities may not hold the same views.
When I first started reading law, I thought that I knew what the Discipline was all about.
Three months later, I read a lecture by a University of London Law Professor.
After reading the lecture, I realised that I knew nothing about law. I had to start all over again.
The Professor went through the same experience that I underwent.
The lecture was triggered by students asking, “Professor, how long should the answer be in law exams”.
“Any student who asks such a question”, said the Professor, “obviously knows nothing about law.”
The University of London declared that “it’s not possible for anyone to know law.”
Note it’s about law, not the law.
“The LLB is an academic programme. It has nothing to do with courtroom work.”
“To be a practising lawyer, you have to read law in other ways.”
The University mentioned the other ways viz. look for a mentor to learn about skills, attend court cases, read media reports on court cases, read the Constitution and case law, comment and analyse court cases and get them published.
“In law exams, we will first mark you for your English,” said the University. “Don’t ever read law if you have not mastered the English language. Go for English tuition before doing the LLB.”
“Law, ultimately, is the power of language, the English language.”
“Next, we will look for evidence of wide reading on law.”
“Finally, we will look for proof that the student can think like a lawyer.”
There are only two types of questions in law exams viz. essay type, and problems.
There are no right or wrong answers in law exams, but only the student’s answers.
The student will only do well if the examiner has been persuaded.
Najib, like Anwar Ibrahim, can seek Agong’s Pardon. He can probably even return as Prime Minister given his pedigree, among others.
‘Miscarriage of Justice’, based on ‘tainted’ rulings, merits Pardon.
Extract from FMT link below . . .
Najib was accused of abusing his power as the prime minister by giving government guarantees on SRC International’s RM4 billion loan from Retirement Fund Inc.
He was also charged with three counts of CBT and three money laundering charges in relation to RM42 million belonging to SRC International, a former unit of 1MDB.
High Court judge Mohd Nazlan Mohd Ghazali sentenced him to 12 years’ jail and fined him RM210 million after finding him guilty of the seven charges in July last year.
My COMMENT, as a legal scholar, before the Court of Appeal ruled:
The court cannot interfere in gov’t guarantees. Executive privileges cannot be questioned in a court of law.
re CBT, the court cannot circumvent the Doctrine of Separation of Powers.
No court can interfere in the prerogative and discretionary powers of gov’t and management unless abuse can be proven.
Generally, the court is reluctant to consider abuse charges, and rarely does so, and if at all, grudgingly.
RM42m isn’t a large enough amount to merit money laundering charges.
Money laundering has been defined in international law as having assets far in excess of what can be legitimately accumulated over a lifetime.
Such assets can be frozen, seized and forfeited by the state under civil action. Look at the DoJ cases on Malaysia.
Criminal suits will only be instituted if the civil action is challenged.
Najib’s case is criminal, not civil.
If the AG felt that money laundering was involved, he should have initiated civil action.
The Definition stands in the way.
My COMMENT, as a legal scholar, before the Court of Appeal ruled:
There were only two possibilities.
Firstly, the Court of Appeal can and may uphold the verdict of the High Court of Malaya on the grounds that it “sees no reason to interfere in the ruling by the lower court” i.e. Najib having failed to prove that there were errors in facts and errors in law in the High Court ruling.
Under the second possibility, also likely, the Court of Appeal can and may declare the High Court ruling a mistrial given the judge’s personal remarks and set aside the tainted verdict.
In that case, the superior court would either send the case back to the High Court to be heard before another judge or hear the case itself.
The High Court case was confusing and complicated. The judge, in the ruling, may have further confused and complicated the case.
Again, it has been alleged that the ruling was tainted by some of the judge’s comments and by not disregarding material which, based on the rule of law, should have been disregarded in fairness to the accused.
My COMMENT as a legal scholar after the Court of Appeal ruled:
Najib lost in the High Court the moment it decided that it had jurisdiction and did not rule against the abuse of power, CBT and money laundering charges.
There was allegedly misdirection.
The Doctrine of Separation of Powers wasn’t considered.
The High Court also didn’t consider that it should not interfere in the prerogative and discretionary powers of gov’t and management unless abuse of power can be proven.
If the High Court had confined itself to the issues in the charges, the question of abuse of power would not have arisen. A case is about facts, the issues and the law applicable. It’s immaterial who or what the judge believes.
In law, a line must be drawn somewhere, lest Pandora’s Box opens.
No court will allow the floodgates to open.
If Najib’s RM42m SRC International case isn’t a novel development in law, it may have created a dangerous precedent which would affect future Prime Ministers.
In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law, read with the letter of the law.
The letter of the law, by itself, isn’t law at all.
The court is only about law.
The court isn’t also about ethics, moral values, theology, sin, God, justice or truth.
Where’s the spirit of the law in Najib’s RM42m SRC International case?
The Federal Court in Appeal, or in Review, should be able to find the spirit of the law and declare it in the grounds of judgment. Opinion isn’t law. Only the court can declare law. Opinion even by the court isn’t law if it can’t be declared.
It was a fatal flaw in law for Najib to maintain in the High Court of Malaya that he believed, when he was spending the RM42m, that it was part of the RM2.6b donation reportedly from the Saudi King, now deceased. Dead men tell no tales.
The Saudi gov’t maintained discreet silence on the RM2.6b “donation”.
Jho Low, who allegedly told Najib about the RM2.6b “donation”, fled the country. This should not have worked against Najib.
SRC International MD/CEO Nik Faisal Ariff Kamil and several key persons, allegedly involved in the RM42m/RM2.6b issues, fled the country. This should not have worked against Najib.
AmBank’s former customer relationship manager Joanna Yu Ging Ping’s testimony worked against Najib although she was allegedly no angel. Her credibility can be questioned. It wasn’t clear whether AmBank sacked her, and if so, on what grounds.
The media reported her as saying that she isn’t working and that she can’t find a job.
In the Federal Court, Najib must focus on law, not the so-called truth. He should focus on the tainted remarks by the judge in the High Court and the Court of Appeal. The court can only consider what’s before it.
It’s not the done thing for the court, or lawyers, to be emotional in law.
The court is only about law.
The High Court should have disregarded “fairy tales” and the accused and the lawyer injuring themselves and instead focussed on the following issues:
the transfer of the RM42m to Najib’s personal account/s which wasn’t based on circumstantial evidence (not admissible in criminal cases);
what was the money spent on;
who spent the money;
did Najib derive personal benefit from the RM42m;
the absence of the SRC International MD/CEO Nik Faisal at the High Court trial;
the absence of other key suspects;
the absence of Jho Low, allegedly involved in the RM42m/RM2.6b issues.
Lawyer Shafee did tell the High Court that the transfer of RM42m to Najib’s personal account/s was worked out by Jho Low in cahoots with Nik Faisal. Of course, this was circumstantial evidence, and therefore inadmissible.
What’s the status of Interpol Red Alerts on Nik Faisal, Jho Low and other key suspects?
If there has been no progress at all, it was a fatal flaw in law on the part of the IGP.
The Federal Court can and may rule that it would be unsafe to convict Najib since the High Court did not focus on the case proper, gave a tainted ruling, and the Court of Appeal failed to note that.
In that case, the Federal Court can quash the Court of Appeal ruling on the grounds that it was tainted as well by the judge’s remarks. It’s not clear whether any purpose would be served by the Federal Court sending the case back to the High Court.
If there were five judges in the Court of Appeal, presiding on Najib’s case, we may have seen at least one dissenting judgment. Dissenting judgments are important as they are likely to focus on the spirit of the law.
The unanimous ruling in the Court of Appeal by the three judges, it can be argued, was based solely on the letter of the law. It isn’t law at all.
The court is about law.
Generally, the Court of Appeal upholds High Court rulings, and has been seen as even redundant since besides Appeal to the Federal Court, the top court can also Review its own decision.
When all else fails, Najib can Petition the Agong for Pardon on the grounds that there has been miscarriage of justice based on the rulings of the High Court and Court of Appeal being tainted.
The Agong, based on recommendations by the Pardons Board, found that there had been miscarriage of justice in Anwar Ibrahim’s Sodomy II trial. It was the Pakatan Harapan (PH) gov’t which presided over Anwar’s Pardon.
It’s not clear whether Anwar’s Pardon covered the corruption charges in Sodomy I.
The sodomy charges themselves, under Sodomy I, were dismissed by the superior court/s.
If Najib escapes jail, it’s unlikely that Rosmah the wife would be locked up. Public perceptions matter. However, the question of both freeing themselves through Pardon may not arise. So, given public perceptions, only one can seek Pardon although there’s no law against both petitioning the Agong.
The US President allegedly pardons every Tom, Dick and Harry even when there was no miscarriage of justice.
When family, relatives, friends and cronies are pardoned, they don’t come under political considerations but relationship with the President.
My COMMENT, as a legal scholar:
The court should not make unnecessary remarks.
Under the adversarial system of justice, it’s the parties in dispute on issues in conflict which decide on the outcome through the submissions.
The court merely rules based on the submissions. Any personal and offensive remarks would render the ruling unsustainable.
If a Task Force can be set up on Attorney General Tommy Thomas remarks on the judiciary in his Memoirs, “My Story: Justice in the Wilderness”, another Task Force should be set up on Chief Justice Richard Malanjum’s farewell address on lawyers and the court and the rule of law.
Malanjum clearly stated that he cautioned lawyers as well as the court numerous times that “the letter of the law isn’t the sum total of the rule of law”.
Tommy Thomas has alleged abuse of power in the appointment of judges, excessive interference by the executive in the judiciary, political and selective prosecution, and breach of oath of confidentiality.
The former AG is likely to challenge the appointment of former Sarawak attorney-general Fong Joo Chung as head of the Task Force.
All isn’t well with the legal fraternity, the court and the judiciary in Malaysia. There should be a Royal Commission of Inquiry (RCI) on the state of affairs.
The talent pool in law should be expanded, as in other countries, by having a Common Bar Examination and allowing non-law degree graduates to enter the profession through six months to 18 months law conversion courses.
Mahathir and Family should be dragged to justice, through civil action, for alleged money laundering. It’s an open secret that he stays in a glasshouse and throws stones.
Read further here . . .