Pardon for Najib explained . . .
Based on fatal flaws in law, unsafe to convict former Prime Minister.
My COMMENT on the above link in FMT . . .
At the very outset, it must be stated, that Opinion isn’t law.
Only the court can declare law.
Parliament makes laws but cannot declare them.
If not for the Opposition, Parliament would be the pits . . .
Act 342, proposed for Amendment aklegedly at the instigation of Abdul Hadi Awang and PAS, is a case in point.
In law, disproportionate punishments are unlawful.
The punishment must fit the crime.
Disproportionate punishments are a feature of Islam which isn’t law at all but based on the concept of sin.
Sin, unless it can be criminalised, isn’t law.
No Parliament can take away the judicial power of the court or codify law in such a way that it leaves no room for interpretation.
That’s inherent in the basic features doctrine, implied if not written, in the Constitution.
The Doctrine of Separation of Powers preside.
The Judiciary is not another gov’t dept subject to the Executive. The Federal Court would soon be ruling on the matter. It’s highly unlikely the court would go against itself unless, in a moment insanity, it rules based on the letter of the law only.
Tribunals . . .
Only the Tribunals are not courts of law but subject to judicial review. The Tribunals, on paper, don’t allow lawyers to appear unless points of law are involved. In reality, the Tribunals are party to illegalities i.e. often allowing points of law to be used as a fig leaf.
Points of law can only come from the High Court. No lawyer, allowed to be present in Tribunals, go to the High Court for declarations on points of law. Parliament looks the other way.
The court can decline to hear cases involving codified law. Example sec 39B of the Dangerous Drugs Act which metes out the mandatory death sentence “for possession of prohibited drugs above a certain amount”.
Or a law which metes out mandatory jail and whipping for those who employ illegal immigrants.
The court in Malaysia isn’t like that in communist Singapore but belabours in other ways in the delusion that the letter of the law is the sum total of the rule of law.
The court . . .
The court is only about law, not truth. That’s a principle in jurisprudence (theories, principles and maxims in law).
The court isn’t about ethics, moral values, theology, sin, God or justice.
Those are principles in jurisprudence.
If it’s true that Najib used RM42m for his “personal benefit and political purposes”, and not for corporate social responsibilities, no evidence was produced in court on his personal involvement to the extent of RM42m.
In fact, evidence was produced in court on who received monies from Najib and for what purpose. It was not for his personal benefit and political purposes.
It’s clear that Najib did not use the RM42m in toto for his personal benefit and political purposes.
Based on this fact alone, the issue of personal benefit and political purposes to the extent of RM42m, does not arise in law.
The RM42m charge relating to personal benefit and political purposes is flawed.
It’s unsustainable and falls apart. The related charges also cannot stand.
If it’s true that Najib used some of the RM42m for his personal benefit and political purposes, the matter was not in court.
The only matters in court are the charges.
Unsafe in law . . .
It would be unsafe in law to convict Najib on the RM42m. The main charge is a fatal flaw in law.
What does four judges bla bla bla mean? It means nothing.
It was Chief Justice Richard Malanjum who cautioned the legal fraternity and court, based on his personal experience with them, that the “letter of the law” by itself isn’t 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 rule of law isn’t a legal term, it’s political.
The Constitution isn’t law but as the ultimate political document, setting out the governing institutions of state, it has force of law and hence emerges as the supreme law of the land.
Force of law and law aren’t the same.
Force of law is similar to Adat — customary practices — international law (customary international practices on human rights), customary and industry practices and even a Company’s own internal procedures and practices which don’t violate law, and administrative laws (not law at all but subject to judicial review).
The spirit of the law is always read with the letter of the law.
Based on what Malanjum said, it can be implied that the legal fraternity and the court are often unable to go beyond the letter of the law.
Communist China . . .
In that case, we have the same legal system that exists in China i.e. the law of the jungle based on making up stories as we go along, rule BY law and rule BY Man.
Where’s the spirit of the law in Najib’s case?
Circumstantial evidence is inadmissible in criminal cases.
The Test of the Burden of Proof in criminal cases is “beyond reasonable doubt”.
Lawyer Shafee, being a letter of the law type like other lawyers in Malaysia and communist Singapore and even the court, failed to Defend Najib. In fact, many of his syiok sendiri utterances in court seriously damaged his Client.
Therein lies miscarriage of justice which merits Pardon.
The High Court and Court of Appeal Rulings remain tainted by highly personal and offensive remarks by the four bla bla bla judges. Read the Rulings.
Tainted Rulings merit Pardon for miscarriage of justice.
The two Rulings also went beyond the Submissions in court and even at a tangent.
These are errors in law.
They merit Pardon based on miscarriage of justice.
Rulings should be based on decisions made, through Submissions, by the parties in dispute on issues in conflict.
Trial by Media . . .
Elsewhere, on a separate but related matter on miscarriage of justice, the jury may no longer be out on “prejudice and bias, selective prosecution, selective persecution, and Trial by Media” on the Najib case.
We don’t have to wonder what happened to the RM4b. The matter wasn’t in court.
Only KWAP may know what happened to the RM4b. They are not telling. The entire Board and Management should be sacked immediately.
A Royal Commission of Inquiry (RCI) should be set up on the RM4b.
Abuse of power is a legal minefield.
No court will go into the prerogative and discretionary powers of gov’t and management (it covers private sector as well) unless “abuse can be proven”.
There’s case law from Raja Azlan that states that “prerogative and discretionary powers are not unfettered if abuse can be proven”.
Abuse of power cases cannot be heard if the court cannot go into the prerogative and discretionary powers of gov’t and management.
The court, generally, avoids abuse of power cases like the plague, and rarely, if at all, considers such cases, and that too grudgingly.
In matters involving Executive privileges, the court cannot go into abuse of power cases since the Doctrine of Separation of Powers stand in the way.
Besides, no court will go into the prerogative and discretionary powers of gov’t and management.
FOOTNOTE . . .
Najib can also settle the RM42m case by returning the money to SRC International.
The High Court judge noted that Najib didn’t return the money.
Read here . . .
BREAKING NEWS! . . . Pardon fallback position for Najib Appeal in Federal Court Review . . .
Federal Court may not find spirit of the law, read with the letter of the law.
Read here . . .
Kamarudin Abu Bakar in FaceBook . . .
Amazing piece of sophistry.
Joe Fernandez replied . . .
Kamarudin Abu Bakar, In law, those who accuse must prove it.
In today’s society, lawyers are the true modern Sophists — arguers for hire. And the court is their battleground where they try to outshine each other in a dazzling show of Sophistry!
An attorney is even legally obligated to argue as persuasively as they can for their client’s best interests, irrespective of his or her innocence!