Najib’s ‘light at end of tunnel’ in Federal Court Review . . .
Superior court can only concede previous court’s ‘shortcomings’ at the Appeal stage!
Commentary and Analysis . . . Interestingly, it’s telling that the Federal Court Review had a rethink on Thurs 19 Jan 2023 on the RM42m SRC International case.
Initially, based on virtually nothing, it rejected Shafee’s bid for three days extension of time needed for wrap up on the oral submission. There’s no law that allows rejection. The day wasn’t over yet when the court postponed the Review. It will now resume on Mon 20 Feb 2023 when Shafee will have the three days on concluding oral submission.
It can be argued, based on what transpired in Federal Court Review on Jan 19, that former Prime Minister Najib Abdul Razak can be freed from prison pending the UN Review on alleged “arbitrary detention”. It may not seem, if carefully considered, so much wishful thinking and living on hope for the Najib Family.
The thrust of Jan 19 was about court procedures allowing for extension of time on Tues 23 Aug 2022, when Najib was jailed, and the court being duty-bound on recording lawyer Hisyam Teh’s discharge. In retrospect Chief Justice Tengku Maimun Tuan Mat acted with impunity on both matters. She could not fall back on law and discretion doesn’t arise since it isn’t Applicable.
It was not immediately clear whether push will come to shove and Najib will win freedom from alleged “arbitrary detention”. The court can only consider what’s placed before it.
The Federal Court Review, in keeping on the safe side and thereby avoiding fatal flaws in law, can defer final determination on the RM42m SRC International case until the UN Review comes within the next few weeks. The UN Review sits three times a year.
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Options . .
The jury may still be out on whether New Appeals and Applications remain options between now and the UN Review.
The Federal Court Review saw no reason why Court of Appeal (CoA) judge Abu Bakar Jais should be dropped from the five-man Panel. It cited the vague “in the interest of justice” Article 122 (2) in the Federal Constitution which allows for co-opting from the CoA. CJ Maimun had no reason beyond discretion. Both reasons deny the court interpretation based on special circumstances.
Lawyer Shafee Abdullah prefers three-person Panel, under Section 74 of the Courts of Judicature Act 1964, but without judge Abu Bakar Jais. He wants the judge recused but didn’t address him directly via an Application. It’s pointless having too many persons in a Panel if dissenting judgments will not emerge.
There’s no reason why the Panel can’t be drawn exclusively from the Federal Court as other judges are available.
The issue isn’t that judge Abu Bakar Jais may be biased. The issue is that CJ Maimum allegedly went out on a limb and chose Abu Bakar Jais apparently for no rhyme or reason. If it’s about being “better safe than sorry”, it’s the Defence contention that the judge may have no business being on the Panel. Besides, it’s not a must that the judge must be on the Panel. Justice must not only be done but be seen to be done.
It would be pisang berbuah dua kali (banana planting fruiting twice) if the judge isn’t dropped from the Panel.
We can recall, based on what former Chief Justice Abdul Halim wrote in the Blog, that the Panel set up for the Federal Court Appeal had at least two serious issues viz. CJ Maimun refused to recuse herself although she wasn’t properly appointed and there were issues with the husband. He was hanging around the court, allegedly offering “advisory services”, after creating public unease in the social media with controversial comments before GE14 on Wed 9 May 2018. CJ Maimun, being “good Muslim wife”, could not be seen as going against the husband.
The Panel itself, argued the former CJ, wasn’t properly set up.
One way or another . . .
Najib, it can be argued again, will be released, one way or another, when the UN Review comes in.
The superior court isn’t about guilt or innocence. It’s about due process, court procedures and the greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law.
The letter of the law, by itself, isn’t law. It’s dictatorship. There’s no democracy, no legitimacy.
The best guess estimates don’t see the UN Review taking the position that Najib isn’ under “arbitrary detention”, or that Najib was under “arbitrary detention”. The UN Review wouldn’t go against M’sia or favour the country. If for nothing else, the UN Review can be read as compliant in favour of Najib. The Federal Court Review and Agong can duly take note or risk having mud on the face.
The UN Review, being Advisory Opinion, isn’t binding. Having said that, where there’s lacuna (gap) in local law, it can be cited as case law Applicable in M’sia. Case laws are always about principles in law.
In retrospect, based on court procedures seen on Jan 19, it must be reiterated that Najib was unrepresented on Tues 23 Aug 2022 when he was jailed. The conviction wasn’t perfected in law.
If true, there was no conviction and Najib remains under political detention. He should be placed under house arrest pending Immediate Pardon for miscarriage of justice arising from Tainted Ruling based on mistrial. This isn’t about what nine judges in three courts said. The court of law remains only about law, not Truth or related areas viz. ethics, moral values, theology, sin, God or justice (this isn’t about the principles of natural justice, one of the three criteria in law, the other two being common sense and universal values).
No lingering doubts . . .
In the rule of law, the manner in which an accused was convicted comes first. Conviction only follows if there has been compliance which ensures that it can be perfected in law i.e. no issues can be raised, there are no lingering doubts and there must be finality of closure.
The Client and the lawyer decide on discharge. The court merely records the discharge.
In lawyer Hisyam’s case, the court did not record the discharge. It didn’t even take note.
It did not advise him to put the discharge in writing. The discharge would have been recorded by the court’s audio system.
The court will not record the lawyer discharging himself or herself, but only in civil cases, if the Client objects on the grounds that commitments made had not been kept.
In criminal cases, commitments are not possible.