Many lawyers are saying in FB that Najib will be denied leave by the Federal Court to Appeal on the RM42m SRC International case.
They argue that “there are no errors in facts and no errors in law” in the High Court and Court of Appeal Rulings on the Submissions — it’s about looking for the law and pointing it out — by both sides.
A case is about facts, issues arising, and law applicable.
The letter of the law, by itself, isn’t the sum total of the rule of law.
CJ Richard Malanjum warned lawyers and the court, in a farewell address not so long ago, on the letter of the law.
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.
The RM42m charge cannot stand since Najib did not derive personal benefit from the money.
The court has the names of those who derived benefit from the RM42m which was transferred from SRC International, either directly or indirectly, to Najib’s personal account/s.
If there’s proof that Najib derived personal benefit from even a small sum of the RM42m, it should be reflected in the RM42m charge, RM42m should be removed.
That wasn’t done.
So, the RM42m charge cannot stand.
If the RM42m charge cannot stand, the related charges can’t stand.
Since the RM42m charge cannot stand, the RM210m fine is null and void.
If the RM210m fine is null and void, the 12 year jail sentence is unlawful and must be quashed.
Where’s the spirit of the law?
The court is only about law, not truth.
Witnesses swear to tell the truth, the whole truth, nothing but the truth and mostly lie all the time. There’s law on perjury — lying under Oath — but it’s seldom enforced except perhaps in murder cases.
The court isn’t about ethics, moral values, theology, sin, God or justice (the principles of natural justice remains separate from being dragged to justice i.e. the court).
The story . . .
The story allegedly has Mahathir Mohamad’s fingerprints all over it and presumably the court cases as well against Najib. The former Prime Minister may have simply fallen back on “elegant silence” as the plot/s thickened against him.
The writer and Najib should lodge police reports based on the contents of the book.
If the police don’t take any action, they can lodge a complaint at the Magistrate’s court.
The Magistrate has investigative and interrogative powers on police reports. This is an inquisitorial approach in the system of justice.
Otherwise, with the exception of the Coroner’s Court, Malaysia follows the adversarial system of justice in the Commonwealth. Again, the Coroner’s Court is also based on the inquisitorial system of justice.
Alternatively, the gov’t can set up a Royal Commission of Inquiry (RCI) on the contents of the book, “Final Reckoning: An Insider’s View of the Fall of Malaysia’s Barisan Nasional Government” by Romen Bose.
Already, the gov’t has set up a Task Force on the Judiciary based on Attorney General Tommy Thomas’ book, “My Story: Justice in the Wilderness.”
Miscarriage of justice . . .
The contents of the Bose book remain separate from the widespread public perception that there has been miscarriage of justice in the RM42m SRC International case. It merits Pardon if the Federal Court in Appeal, and Review, do not overturn the conviction by the High Court. The Court of Appeal unanimously upheld the High Court Ruling.
It’s unusual that there was no dissenting judgment in the Court of Appeal. The Ruling may have been based on the “delusion” that the letter of the law is the sum total of the rule of law.
Where’s the spirit of the law on the Najib case?
Many people think that the court is about truth since witnesses swear to tell the truth, the whole truth, and nothing but the truth. Most people lie all the time in court. The law against perjury is rarely enforced.
The court isn’t about truth but law.
The court is also not about ethics, moral values, theology, sin, God or justice (the principles of natural justice remain separate from being dragged to justice or court).
A case is about facts, the issues arising and the law applicable, both written and the spirit behind it. Who or what the judge, or judges, believe is immaterial.
Contrary to popular belief, judges don’t decide court cases. They Rule on decisions taken, through submissions, by the parties in dispute on issues in conflict.
The judge cannot add or subtract or cherry pick. He or she can disregard irrelevant material or where the accused has unnecessarily injured himself or herself or where the lawyer has injured the Client.
The judge cannot investigate or interrogate.
The judge is a referee in the courtroom. He or she isn’t supposed to make snide remarks, insult, humiliate, lecture, threaten, or advise except where a litigant is Acting in Person in a civil case. The accused in criminal cases are not allowed to represent themselves.
Copy pasting . . .
While all judgments are based on the judge copy pasting both sides and Ruling on the material before the court, it must include the dots being connected beyond reasonable doubt. It’s easier said than done.
In law, the losing party has a right to know why he or she lost in court. It must be in the grounds of judgment to facilitate Appeal.
In Najib’s case, how did the court circumvent the Doctrine of Separation of Powers and the prerogative and discretionary powers of gov’t and management and establish Jurisdiction?
All this must be explained in the grounds of judgment.
Technical “offences”, if any, in gov’t isn’t a court matter even if abuse can be “proven”. They should be resolved within gov’t. The Executive is equal to but separate from the legislature and judiciary. If there’s a “loophole” (lacuna) somewhere, Parliament should plug it and codify the law.
It’s a matter of public concern and public interest that no Royal Commission of Inquiry (RCI) was set up on the so-called 1MDB “Scandal” and related “scandals” flogged by the media. The media escaped scrutiny after creating disorientation, confusion and chaos in gov’t on various “scandals”. The media, an unthinking animal, can be manipulated.
The intelligence services, both domestic and foreign, and the deep state may have been involved with the media.
Implied if not written . . .
The Doctrine of Separation of Powers remains inherent in the basic features doctrine, read as implied if not written, in governing the Constitution.
We saw the police recently summoning Sepanggar MP Azis Jamman for a speech he made in Parliament. It doesn’t matter what he said. The MP should not have been summoned by police.
Are they going to charge the MP with allegedly advocating secession and Independence for Sabah? Pandora’s Box will open.
No court can allow the floodgates to open.
Article 63 — Privileges of Parliament — musn’t be read to exclude anything even if they exclude something. The Doctrine of Separation of Powers and the basic features doctrine prevail on the work of Parliament.
Malaysia isn’t a police state.
Away from that little digression on the Sepanggar MP, the Rulings on Najib already remain allegedly tainted by highly personal and offensive remarks, and virtually name calling, by the judge in the High Court and the judges in the Court of Appeal.
Tainted Rulings are unsustainable in law.
The principles of natural justice come into play.
Thesis statement . . .
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 miscarriage of justice, or otherwise, remains besides the point. The matter is nonjusticiable.
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.
In mitigation, Najib has been in public service for most of his life. “Malu apa BossKu.” (My Boss, no need to be ashamed).
Appeal . . .
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.
It would be extremely unusual if there’s no dissenting judgment in the Federal Court as well. Dissenting judgments can only be based on the spirit of the law, read with the letter of the law.
Again, 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.
Najib would be repeating the same mistakes if the burden of the Appeal in the Federal Court falls on lawyer Shafee Abdullah.
Shafee should have worked with a QC both on jurisdiction and the merits of the Defence in other areas.
Lawyers in Malaysia, lacking in brilliance, are not noted for contributing to novel developments in law for the court to declare them in landmark Rulings. The talent pool in the legal fraternity in Malaysia, unlike in England for example, has not been extended to include non-law degree holders.
The law in Malaysia is a failed system long overdue for serious reforms. Corruption is the act of making anything one touches to go bad. Corruption isn’t just about deriving personal benefits from giving and taking situations.
No legal scholars . . .
Tommy Thomas pointed out that there are no jurists (legal scholars) in Malaysia. Jurists, although holding no law degree or not formally trained in law, comment and analyse court cases and the law. They are scholars who research everything to death.
The media refers to this lawyer and that lawyer, including Tommy Thomas, as constitutional experts. In fact, there isn’t even one constitutional expert in Malaysia. There’s no money in the field.
Anyone in Malaysia, lawyer or no lawyer, can file an ex-parte Originating Summons (OS) for Declaration on a point of law. The onus is on the Attorney General to intervene and Apply for the ex-parte to be made inter-parte. The court, on its own, can also do that.
Najib, taking an unconventional approach in Appeal, should hand over the submissions in court from both sides and the two Rulings to a Panel of retired Commonwealth judges and retired Inspector General of Police.
They, being subject matter experts, would be better able to assist Najib and Shafee on the Appeal. The QCs should also be brought in. Better safe than sorry. Otherwise, history will repeat itself.
RM210m fine . . .
Many people 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.
It will never happen. The gov’t should not dream that it will collect the RM210m fine.
When Najib returns as Prime Minister, Mahathir and Family will no doubt be dragged to justice for alleged money laundering. Apparently, it was this fear that made a petrified Mahathir block Anwar Ibrahim by hook or crook 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. He was Prime Minister from 1981 to 2003.
Najib was Prime Minister for nine years from 2009 to 2018.
Read further here . . .