BREAKING NEWS! . . . Samy Vellu, in immortal words, ‘thwarted’ by the civil service . . .

Perfection in writing for perfection in law . . . Law, ultimately, is the power of language i.e. the English language. Very few people can master the English language. The mastery of the English language begins from within by a student acting on his own.

Samy Vellu, in immortal words, ‘thwarted’ by the civil service . . .

The longest serving MIC President tried to help all, with or without gov’t, but failed ‘spectacularly’!

Commentary and Analysis . . . One of my last stories on Samy Vellu was on his intention to resign as MIC President not long after GE12 on 8 Mar 2008. It was exclusive!

Link . . .

https://www.malaysiakini.com/news/113630

We were on the phone when he suddenly asked, “Do you think that I should quit?”

He probably sensed that he had lost the moral high ground and was becoming a national embarassment in his own way. The tables had been turned and there was no reason that anyone should listen to him.

I replied: “It’s perhaps time that you quit. Don’t make it a long goodbye like in Mahathir’s case. Keep all the socio-economic activities and educational initiatives that you started as MIC President. Don’t leave them with the party. They clutter the politics.”

In a moment of true confession, he claimed that the various activities and initiatives did not belong to MIC. I mentioned that in the malaysiakini story on his intended resignation.

Link . . .

It was Samy who told the media after losing Sungai Siput parliamentary seat on 8 Mar 2008, that he had been “thwarted in his efforts by the civil service”. Interestingly, based on personal testimonies, it was Samy and Daim Zainuddin who were the architects of the Privatisation and Malaysia Incorporated policies.

Samy may have been party to illegalities when Mahathir announced several initiatives expressed in slogan-mongering on huge billboards . . . “clean, efficient and trustworthy government”, “leadership by example”, “Buy British Last”, “Look East Policy”, continuation of the New Economic Policy (1970 to 1990), Bangsa Malaysia and Vision 2020.

Indian forgotten . . .

Three days before GE12, Mahathir Mohamad told the media, “In all his years in the Cabinet, Samy Vellu never opened his mouth and mentioned the word Indian”. It was Mahathir, to cite an example, who withdrew the recognition of medical degrees awarded by the Crimea State Medical University (CSMU), formerly in Ukraine, now in Russia. Ninety per cent of the Malaysian students in CSMU were Indian.

The MIC Chief told the media, “I don’t want to say anything. Mahathir is a great man. He will always be my leader.”

Interestingly, Samy thrived on bad news and probably never corrected the media on anything. No one can remember him suing anyone for defamation. Mahathir, until he decided to sue Umno President Zahid Hamidi recently, was noted for taking the same approach.

Samy called in great alarm after malaysiakini carried the resignation story. He wanted it withdrawn. “The phone has been ringing off the hook,” he said. “People are abusing me because the activities and initiatives won’t be with the party.”

I advised him that malaysiakini would not withdraw the story. If there were inaccuracies, I said, the online news portal would run a correction below the story.

Malaysiakini Editor in Chief Steven Gan gave Samy and his press secretary the same message.

Shortly thereafter, Samy may have been involved in the ouster of G. Planivel, his successor. Planivel demanded publicly that Samy hand over all the socio-economic activities and educational initiatives to the party.

It was grave strategic error when MIC became involved in so many ventures, outside politics, and degenerated into a welfare body. It should not be doing the government’s work. Indian, based on personal testimonies, were told to take up their complaints with MIC whenever they approached the government for assistance.

Many jokes . . .

There are many jokes about Samy making the rounds. However, he was unique for a Tamil, Hindu and Indian.

He was unusually honest, punctual, brimming with confidence, and had incredible energy. I don’t know about the politics. I believe, to the best of my knowledge, that the longest serving MIC President did try to help all, with or without government, but failed “spectacularly”.

Meeting Samy . . .

After Samy became MIC President, I can still remember the number of times that we met. I may still have fingers to spare.

There was a breakfast meeting at the Holiday Inn in Kuching, a chance meeting at KL Plaza after he had scalp surgery in Australia, followed by open house for Deepavali, twice at his office, a brief encounter at the Shangri La Tanjung Resort in Kota Kinabalu and at the VIP Lounge of the Airport — KKIA — and Magellan Sutera Harbour Resort in KK.

It was at Shangri La that I raised the issue of Indian in Malaya not having even one ethnic seat in any legislature. In law, that was tantamount to disenfranchisement. I suggested that the number of Indian voters in seats, whether parliamentary or state, be capped at 20 per cent. At that time, there were many seats with 40 per cent Indian voters. “Forty per cent is a waste of votes,” I argued. “20 per cent is enough to make Indian the kingmakers in as many seats as possible.”

Samy saw the light. “The time has come for the idea,” he said. “We will work on it.”

It was a double-edged sword based on issues and no longer dictated by race, language and religion. If the ruling Barisan Nasional (BN) coalition did not adhere to its concept — power sharing and not majoritarian decision making — the Opposition would benefit.

Last moments . . .

We know about Samy’s last moments from this link https://www.malaymail.com/news/malaysia/2022/09/15/samy-vellus-son-says-father-met-a-lot-people-towards-his-last-moments-was-in-jovial-mood/28428
where the son, Vell Paari, gave some glimpses and revealed snippets.

We don’t know the cause of death. The doctor-patient relationship, confidential under the Hippocratic Oath, may not include cause of death. The cause of death remains privileged communication between doctor and patient’s family. They have not revealed anything.

Conflicting reports say that post-mortem or autopsy results may not reveal cause of death but only toxicity (poisoning) levels in the body. Toxicity beyond a certain level, deemed unsafe, can cause death. It’s known that constipation, health supplements — read multivitamins and mineral salts — taken over 15 years, and herbal preparations can all increase toxicity and cause death. The truth is stranger than fiction.

Medical literature shows that nocturnal deaths, usually around 3am, are common. The deceased might wake up at around that time to take a leak. Life is fragile. One minute here, next minute gone.

Of course there may be contributory causes, secondary, like fibrosis (hardening of cells) of the lungs or cardiac muscles. It was reported at one time that Samy used to visit temples in India, seeking a cure for asthmatic condition. If Samy went peacefully, he could not have had an asthmatic attack.

If Samy, 86 years old on Mar 8 this year, had not gone back to bed at around 3.15am or 3.20am, probably he would still be around. Samy, who skipped office for three days, reported feeling tired the night before at 10pm. Therein might lie problems on cardiac issues. They are incurable but a pacemaker might help if there’s no fibrosis. I stand corrected. It appears that his demise was confirmed after 6am. The media reports said 7am and even 7.30am.

The former MIC President woke up at around 2.45am on Thurs 15 Sept 2020 to visit the gents. It’s known that many people go if they suddenly wake up from bed or suddenly lie down. The blood pressure drops, the oxygen level comes down and deprives the brain, the pulse rate may be at a bare minimum. Doctors advise turning to one side slowly, and rising up gradually after a few minutes and sitting on the bed for a while. Then, get up on the feet again but slowly, to avoid triggering low blood pressure. The advice remains the same for getting back to bed. R.I.P. Samy Vellu . . .

Link . . .

Last meeting . . .

The last time that I met the ex-MIC President was also by chance as usual, at the entrance of Mid-Valley in Kuala Lumpur from the Gardens side. It was just after GE14 on Wed 9 May 2018. He recognised me immediately although our chance encounters over the years were few and far between. After that chance encounter, to digress a little, I had another chance encounter. Lim Kok Wing, LimKokWing University of Creative Technology Founder, was outside the Robinsons Store. I hadn’t seen him since the Wings Creative days. LKW said, “Come write for us” and dashed off. I told him about running into Samy. “Oh Tun,” he said. “How is he?”

Samy felt reassured when I said that Prime Minister Mahathir Mohamad would probably allow him to remain as Malaysia’s Special Envoy on Infrastructure to India and South Asia for at least six months if not longer. The PM was noted for being loyal if those he knew stayed true to him.

Mahathir had told other envoys, politically appointed by the previous BN (Barisan Nasional) government, to resign within two weeks.

Bernard Dompok for example, Ambassador to the Vatican, appealed against the directive. He wanted to remain in his post for much longer “as he had some unfinished work with the Vatican”. Mahathir, taking offence, demanded that Dompok step down immediately. The PM, unlike Samy who had an elephant’s memory, didn’t appear to remember that Dompok had helped to bring down the Pairin government in 1994.

It’s said that a man’s life is over when he can’t remember. Mahathir was one of those forgetful persons in the nation’s politics but yet somehow manages to cling on for dear life. It’s true that he suffers from periodic bouts of amnesia driven by delusions and paranoia. Luckily, he could fall back on Samy and Daim Zainuddin on politics and the economy. Mahathir was only close to the duo. Mustapha Harun in Sabah — Governor and later Chief Minister — confided that Mahathir has no friends “because he’s not a human being”.

Mahathir’s confidence . . .

Apparently, as related by Samy, he gained Mahathir’s confidence by being among the very few people who visited him when he was detained, for a time after 13 May 1969, under the draconian Internal Security Act 1960 (ISA) which provided for incarceration without trial. Prime Minister Najib Abdul Razak repealed the ISA in 2011.

Deputy Prime Minister Musa Hitam publicly complained in 1986 that Samy was more powerful than him. Samy reportedly told him that he had no power as DPM and literally advised him to take a hike. Musa resigned as DPM and Umno Deputy President. He was persuaded by the Umno Supreme Council to return as Deputy President.

It was Asean Review Publisher, Khairuddin, who suggested that I interview newly-elected MIC Deputy President Samy. At that time, in 1977, the English language media almost never reported on local Indian politics except for election results. We may have been the first to cover local Indian politics beyond election results. The New Straits Times soon followed. I didn’t know Samy but soon gathered some information from Tamil journalists and the National Union of Plantation Workers (NUPW) . . . Printer V. Krishnan formerly of the Tamil Murasu and Kanniah Arumugam who was the Press Officer at NUPW. He contributes to the Tamil Press.

We met at Samy’s office at Wong Kin Men Associates, an architectural practice, in Wisma Central, along Jalan Ampang in Kuala Lumpur. The walls were plastered with perspectives of temples. Samy was in the thick of things, trying to wrest control of temples in Malaya. The temples were a rich source of political donation.

Apparently, the interview in Asean Review upset MIC President V. Manickavasagam. Samy gave the details over lunch at the Bangles, along Jalan T.A.R. in Kuala Lumpur. The Bangles was owned by the family of the late Athi Nahappan, who was Samy’s predecessor as MIC Deputy President. Samy said that he doesn’t plan to fight back. “Manicka does not have much time left,” whispered Samy.

After Manicka’s passage, Samy confirmed rumours that the MIC Chief had gone “while doing it with his mistress, his former secretary”. There were also rumours, probably true, that Manicka had converted.

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BREAKING NEWS! . . . M’sia Day’22 no mention of Najib’s compliance on MA’63 . . .

Perfection in writing for perfection in law . . . Law, ultimately, is the power of language i.e. the English language. Very few people can master the English language. The mastery of the English language begins from within by a student acting on his own.

M’sia Day’22 no mention of Najib’s compliance on MA’63 . . .

Ex-PM Najib Abdul Razak began devolution of powers by way of transfer of greater administrative authority to Sabah and S’wak by administration!

Commentary and Analysis . . . It cannot be denied that Najib Abdul Razak, as Prime Minister before GE14 on Wed 9 May 2018, was the first head of government to recognise Malaysia Day 16 Sept 1963 as public holiday and initiate compliance with the Malaysia Agreement 1963 (MA’63). Yet, incarcerated since Wed 23 Aug 2022, he remains virtually forgotten this year as Malaysia Day was observed in a lowkey manner. Sabah and Sarawak have so far not stripped him of titles and Awards.

Najib also did away with draconian laws, introduced progressive legislation, pushed for various reforms and gave cash handouts to the people as advised by the World Bank and IMF. He set up 1MDB to channel political donation for party financing and activities. It’s not known whether some of the RM5b raised through bonds became political donation.

MA’63 remains a never-ending story.

The British, MA’63 or no MA’63, transfered the Administration of Sabah and Sarawak — the Borneo Territories — to the Malayan central government on 16 Sept 1963. The Malayan central government became the Malaysian Federal government. Ironically, as evident from Article 160(2), Malaysia isn’t Federation but Equal Partnership of Sabah, Sarawak and Malaya under MA’63. We can skip Singapore which left Malaysia on 9 Aug 1965.

The British saw Malaysia as a microcosm of the British Empire in general and British India in particular. British India occupied a large part of the Indian subcontinent but did not include 500 Princely States. The British also separated Afghanistan, Tibet, Xinjiang, Nepal, Sikkim, Bhutan, Myanmar, Sri Lanka, Maldives, Seychelles, Mauritius and Penang from India. The Andaman and Nicobar Islands in the Andaman Sea, not far from Langkawi and Thailand, remained part of India.

Najib’s reversal of the British transfer of the Administration of the Borneo Territories to Malaya, for want of a better term — albeit partial — came to a grinding halt after GE14 when the ruling Barisan Nasional (BN) coalition fell from power after an uninterrupted 61 years which provided great political stability. All hell virtually broke loose after that as political and economic instability continues to reign.

Mahathir damaged MA’63 . . .

Mahathir Mohamad, who succeeded Najib on Thurs 10 May 2018, aborted the devolution of administrative powers. He also scrapped the RM30b Pan Borneo Highway initiated by Najib. Locals refer to the project as Pain Borneo Highway i.e. a reference to the muddy timber tracks, through jungle, which was taken over by the Pan Borneo Highway.

Mahathir formed the Cabinet Committee on MA’63. No one knows what the Committee discussed. Muhyiddin Yassin ousted Mahathir, as Prime Minister, by forming the backdoor Federal government on Sun 1 Mar 2020. He scrapped the Committee and placed it under the Official Secrets Act 1972 (OSA).

There was hue and cry in the Borneo Territories on the Committee being placed under the OSA. Muhyiddin, taken aback by the strong reaction on the other side of the South China Sea, announced the virtually scam Council on Malaysia Agreement 1963. Therein the matter lies. Nothing was heard from the Council until it announced that, in principle, the Federal government under Ismail Sabri was agreeable that veto powers in the Malaysian Parliament, held by Sabah, Sarawak and Singapore before 1965, would be returned to the Borneo Territories. Sabah and Sarawak would hold a collective 35 per cent of the seats in Parliament.

Link . . .

https://www.malaymail.com/news/malaysia/2022/09/16/abang-johari-sarawak-sabahs-voices-finally-being-heard/28606

Link . . .

https://www.thestar.com.my/news/nation/2022/09/18/sabah-sarawak039s-quest-for-more-parliament-seats-could-see-only-one-beneficiary-says-sim

Too many promises . . .

The people in Sabah and Sarawak are not keeping their fingers crossed. They don’t expect the Federal government’s compliance on the 35 per cent of seats in Parliament. Much water has passed under the bridge since 16 Sept 1963. The Federal government has made too many promises especially on the eve of elections. None have been kept.

Sabah and Sarawak don’t speak the same language on MA’63, and with good reasons. The government in Sarawak, proxy rulers, has not changed since 1966 when emergency was declared and Stephen Kalong Ningkan ousted as Chief Minister. Penghulu Tawi Sli was briefly Chief Minister. No Orang Asal has been Chief Minister since Tawi Sli. The people have lost their sovereignty to a small group in power. Election results cannot be perfected in law. There’s no legitimacy. Let’s not go there. That’s another story for another day.

It’s an open secret, that unlike Sabah, the Sarawak government pays lipservice to MA’63. The Sarawak Malay (Orang Laut or Kirieng) and Melanau (Orang Sungai) appear quite comfortable with the status quo since 1966. They fear that the Federal government’s compliance on MA’63 may see big changes (read Orang Asal as Chief Minister and perhaps as Governor too) in Sarawak.

In Sabah, the people seek greater autonomy. They want the Federal government to confine itself to Internal Security, Defence, Foreign Affairs and the Malaysian Common Market. Singapore, when push came to shove, left the merger with the Federation after it was kept out of the Malaysian Common Market.

Sabahan, especially the young Orang Asal, want Sabah restructured as six states — Labuan, West Coast, Interior, Kudat, Sandakan and Tawau — and a regional Parliament and regional Federal government. The states would be headed by a Chief Minister and the regional Federal government by a 1st Minister as in Scotland, Wales and Northern Ireland. In Australia and Sarawak, the 1st Minister is known as Premier.

Writing on the wall . . .

It’s said that if anything has a beginning, it will have an end.

It’s unlikely that Malaysia, as it stands, will last another half century in the Borneo Territories. The writing is on the wall.

If the Federal government has been non-compliant on MA’63, it’s because of the lack of political will in Putrajaya. There’s also no leadership in the Borneo Territories on MA’63.

Change is in the air. The young are restive and want the old leaders like Jeffrey Kitingan, long in politics, to make way for them or be pushed out. That would be the day.

Putrajaya can no longer call the shots in Sabah, perhaps in Sarawak as well, especially since the politics in Malaya has been split down the middle since 2008. Since Mahathir resigned on Mon 24 Feb 2020, no one has been able to become Prime Minister in Putrajaya without the support of Sabah and Sarawak and/or at least one Borneo Territory.

That’s the pressure point which will force local leaders to bring change on the relationship with the other side of the South China Sea.

Sovereignty . . .

Already, fearing loss of sovereignty, Sabahans are demanding that the PTI (pendatang tanpa izin or illegal immigrants) be removed from the electoral rolls. The Sabah MIC Chief Peer Mohd’s case in the Magistrate’s Court on Thurs 22 Sept 2022 may be the tip of the iceberg.

Link . . .

If the National Registration Dept (NRD) says that “MyKad Peer Mohd ada dalam sistem” (Peer Mohd’s MyKad is in the system) questions will arise.

Does Peer Mohd hold Malay MyKad when the document is meant only for S’pore and Malaya under Article 160(2) and governed by the Merdeka, 31 Aug 1957, cutoff point to be classified as Malay?

Does Peer Mohd hold citizenship by naturalisation or by operation of law?

If citizenship by naturalisation, did he enter Sabah with valid travel papers and Entry Permit?

How long did he stay in Sabah before being given citizenship by naturalisation?

If he holds citizenship by operation of law, how was he given the document when he’s not descended from a citizen?

Does Peer Mohd hold a late registration birth cert? How was he given this document when he was not born in Sabah?

The PTI phenomenon was explored by the 2012/2013 Sabah Royal Commission of Inquiry (RCI) on illegal immigrants. There’s a case for Amnesty by Parliament on the PTI and stateless in Sabah. The Orang Asal are against Amnesty including for the stateless if they are not local.

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BREAKING NEWS! . . . CJ stirs ‘hornets’ nest’ on Najib in jail, should explain SRC conviction . . .

Perfection in writing for perfection in law . . . Law, ultimately, is the power of language i.e. the English language. Very few people can master the English language. The mastery of the English language begins from within by a student acting on his own.

CJ stirs ‘hornets’ nest’ on Najib in jail, should explain SRC conviction . . .

Najib’s ‘conviction’ on RM42m SRC International case could not have been ‘perfected in law’!

Commentary and Analysis . . .
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 stake holders as well who were involved in convicting former Prime Minister Najib Abdul Razak 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, Mainun, to recuse herself.
See here . . . Patutkah DS Najib diberi pengampunan (Should Najib receive Pardon)
. . . http://www.tunabdulhamid.my/

Link . . .

Link . . .

https://www.thestar.com.my/news/nation/2022/09/14/zaid-questions-bar-council039s-039pressure-filled-statement039-over-najib-pardon#.YyGSWIKB4BM.facebook

Link . . .

Link . . .

https://fb.watch/fxXh9rcve4/

The ex-CJ also questions the eligibility of the 5-Person Panel that presided over the Federal Court Appeal on the RM42m SRC International case.

Link . . .

https://asklegal.my/p/judge-hamid-affidavit-corruption-appeal-court-judiciary-karpal.html

If the 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 in 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.

Link . . .

Link . . .

https://www.dailyexpress.com.my/news/199075/cj-tells-critics-of-judiciary-to-read-judgments-before-attacking-decisions/

and Link . . .

and Link . . .

https://www.theedgemarkets.com/article/najibs-src-trial-simple-and-straightforward-case-abuse-power-cbt-and-money-laundering-%E2%80%94-apex

Some questions follow in the social media for the CJ.

Link . . .

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 prematuredly 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.

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.

Link . . .

https://www.malaymail.com/news/malaysia/2022/09/13/igp-1mdb-documents-statements-relating-to-probe-on-husband-of-ex-bank-negara-governor-need-to-undergo-process-by-agc/28100

Submission . . .

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 . . .
https://www.malaymail.com/news/malaysia/2022/09/09/report-umno-no-longer-the-sole-bet-for-political-donors-as-party-loses-dominance/27311

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 . . .

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.

Reading minds . . .

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 Orginating 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.

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.

Link . . .

SPECIAL NOTE TO READER . . .

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BREAKING NEWS! . . . Kit Siang should push for RCI on 1MDB Story . . .

Perfection in writing for Perfection in law . . .

https://www.newmalaysiaherald.com/2022/09/10/daps-kit-siang-should-push-for-rci-on-1mdb/

Kit Siang should push for RCI on 1MDB Story . . .

The public have the right to know the entire story on 1MDB’s ‘failure’!

Commentary and Analysis . . . DAP elder statesman Lim Kit Siang should be in the forefront in pushing for Royal Commission of Inquiry (RCI) on the 1MDB Story. An RCI on the RM3.5b SRC funds frozen in Switzerland would be quicker while that on Judge Nazlan can be completed in 14 days i.e. before GE15. See here . . . https://en.m.wikipedia.org/wiki/1Malaysia_Development_Berhad_scandal


The public have the right to know the entire story on the Finance Ministry-owned financial vehicles. See here . . .
https://www.newmalaysiaherald.com/2022/09/07/five-rci-on-najib-for-closure-speaking-truth-to-power/

The RCI can even focus on the larger story viz. the 2009 to 2018 Najib Administration. In that case, the RCI may find that former Prime Minister Najib Abdul Razak stands indemnified, has immunity, and implicit Pardon under the Basic Features Doctrine — whether written or otherwise — in the Constitution. See here . . .

If true, wrongdoing does not arise on the Najib Administration. The court has no jurisdiction. RCI will demonstrate that Najib does not belong in jail for even a day. RCI isn’t court of law, does not punish, or recommend punishments, but has great moral authority in speaking truth to power and helping find finality of closure based on Reconcilation. See here . . .

The nation, healed, can put the past behind — read 2009 to 2018 — and move forward on living with the virus in the post-pandemic years and rebuilding the economy battered by disruptions in the global supply chain and international logistics and rethink on globalisation.

Pardon, whether implicit, Immediate or for wrongdoers, isn’t law. The Agong has discretion. The matter is nonjusticiable viz. not for judicial consideration and resolution. See here . . .

Constitutional Supremacy . . .

The Constitution, it must be noted, isn’t law but has force of law, being based on the ultimate political documents which sets forth the governing institutions of state . . . the Federation of Malaya Agreement 1948, the Federation of Malaya Independence Act 1957, and the Malaysia Agreement 1963 (MA’63). If the Constitution is the supreme law of the land, it’s because Malaysia is governed by Constitutional Supremacy, not Parliamentary Sovereignty. The Doctrine of Separation of Powers decides.

Conventions, the working of the Constitution, isn’t law. No court will go into conventions. It has no jurisdiction. The court of law is only about law.

Najib’s plight and fate can only be decided on the basis of whether there’s law or no law on 2009 to 2018. No court has been willing to visit these years in Administration.

Instead, the former Prime Minister has been made the scapegoat and jailed by the Federal Court, although unrepresented, on Wed 23 Aug 2022. See here . . .
https://www.newmalaysiaherald.com/2022/08/25/najib-qc-laidlaw-can-appeal-for-high-court-admission-as-commonwealth-citizen/

The conviction could not be perfected in law. It means there was no conviction. Najib remains in jail as political prisoner. He can send a letter of representation to the Director-General of Prisons. He can plead to be released or alternatively, placed under house arrest pending Immediate Pardon from the Agong. The Federal Court in Review can free him, on the basis that there was no conviction. Let’s keep our fingers crossed. See here . . .

Anti-Najib Narrative . . .

Now, in the absence of RCI, stories on 1MDB are being told from the middle or from angles which suit the convenience of the narrator. See here . . .
https://newswav.com/A2209_HwfLJZ?s=A_Y6KZ2QG

and here . . .

https://www.therakyatpost.com/news/2022/09/09/no-country-has-reported-jho-lows-whereabouts-to-interpol-says-igp/

Instead, Lim is challenging Umno leaders to condemn 1MDB as a financial scandal. See here . . .
https://www.theedgemarkets.com/article/kit-siang-five-reasons-why-zahid-should-step-down-umno-president

That’s like putting the cart before the horse. Earlier, Lim held out the prospect of working with Najib, in taking the cue from the “Malu apa BosKu” #JusticeForNajib, if he condemns 1MDB as a financial scandal. Lim doesn’t ask Mahathir Mohamad to condemn his Administration from 1981 to 2003 and 2018 to 2020 as nothing but dictatorship.

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”. See here . . .
https://www.malaymail.com/news/malaysia/2022/09/09/report-umno-no-longer-the-sole-bet-for-political-donors-as-party-loses-dominance/27311

and here . . .

Mahathir family in power . . .

The crux of the matter on Najib may be Mahathir, in cahoots with the Opposition including Lim and certain media, eroding public confidence in the IPO (initial public offering) announced by 1MDB. The abortion of the IPO in the midst of public controversy may have virtually struck a mortal blow. Even without the IPO, media reports show that 1MDB’s assets exceeded liabilities by several billion ringgit but the public confidence was no longer there. Public perceptions were against the ruling BN (Barisan Nasional) government. The rest is history.

The court has no jurisdiction on Privileged Communication. Yet, Mahathir and those in cahoots with him — read The Sarawak Report and western intelligence agencies — were somehow able to virtually hack into 1MDB’s privileged communication in email, probably distort them, and flood the social media with them. The privileged communication even found their way to the Dept of Justice (DoJ) in the US. Media reports revealed that one MACC Chief, in cahoots with Mahathir, provided the DoJ with “incriminating evidence” against the Najib Administration.

In jurisprudence, no court would enter into the prerogative and discretionary powers of government and management. Of course, there’s the Raja Azlan Shah case law on abuse of power. In fact, this is “bad law” which can only be read in isolation. It falls apart if read with other laws, the Constitution and on indemnification and implicit Pardon, immunity, and the Agong’s discretion on Immediate Pardon for those wronged and Pardon for wrongdoers.

Open Secret . . .

It’s an open secret that Mahathir, from even GE13 in 2013, manipulated the media — an unthinking animal — to build up public perceptions against Najib just as it was done earlier against Anwar Ibrahim. He wanted his family installed in power. That meant getting Najib out of the way, permanently if possible, otherwise temporarily for the Mahathir family. They needed to “buy time” against their political rivals. See here . . .

https://www.firstpost.com/opinion-news-expert-views-news-analysis-firstpost-viewpoint/malaysia-under-siege-a-despots-continued-machination-11197681.html

and here . . .

No court will go into conspiracy theories but an RCI would want to hear them, lest there are elements of obstruction of justice, a heinous crime in other jurisdictions. In Malaysia, the court would dismiss obstruction of justice as conspiracy theory and declare it has no jurisdiction. In Sodomy 1, for example Anwar screamed “political conspiracy” until he was hoarse. Judge Augustine Paul advised him to focus on the charges. In Sodomy 2, I advised Anwar that his best bet was to delay the case for as long as possible. It took nearly nine years before he was convicted. Anwar was “fixed”, given the manner in which the charges were framed.

Federal Court with impunity . . .

In Najib’s RM42m SRC International case, the Federal Court did not allow the Debate to go back and forth for finality of closure. Instead, the court did not pay even lip service to the rule of law, but acted with impunity. It fell back on the letter of the law, by itself, as law. It’s not law at all but dictatorship.

In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law.

The RCI will find that the manner in which a person was convicted comes first in the rule of law. Conviction comes later if there has been compliance with procedures and the rule of law.

Otherwise, there has been no conviction. If the court refuses to free the person who carries no conviction, he or she becomes a political prisoner. The court cannot fall back on the finality of closure approach in refusing to free a person who carries no conviction. If conviction has not been perfected in law, there has been no finality of closure. See here . . .

and here . . .

and here . . .

The court has practice directions and the oft-cited “amalan, tatacara dan prosedur Mahkamah” (practices, work ethics related to procedures, and court procedures) which probably was being observed in the breach.

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BREAKING NEWS! . . . Bar Council not seen as upholding the rule of law . . .

Perfection in writing for perfection in law . . .

Bar Council not seen as upholding the rule of law . . .

Bar Council will lose credibility, public confidence, if it takes extreme positions, loses independence!

Commentary and Analysis . . . The Bar Council’s role and functions are about the 20K Malaysian Bar, certainly not put itself in a position where it invites the kind of letter of demand (LoD) mentioned in the following link. See here . . .
https://www.theedgemarkets.com/article/zaid-ibrahims-law-firm-threatens-sue-malaysian-bar-president-defamation

If we take the cue from the LoD, the Bar Council has published a statement which was allegedly false and malicious, and that the allegedly false and scurrilous imputations allegedly constitute grave and serious libel. See here . . .
Phttps://www.theedgemarkets.com/article/malaysian-bar-abuse-process-brings-disrepute-our-justice-system

There were real issues with the RM42m SRC International case in the Federal Court.

If the Debate goes back and forth, whether in court or outside, there are no prizes for guessing who will prevail. Obviously, it will be the one still standing.

In the SRC case, the Federal Court did not allow the Debate to go back and forth. It was violation of the rule of law.

The SRC Ruling, being unanimous, was another violation of the rule of law. There must be dissenting judgment/s. Dissenting judgment/s facilitate Appeal and Review.

Anyone can be “fixed” considering the way the charges were framed. That’s why all nine judges in three courts said the same thing. Obiter Dictum is just the Opinion of the judge. It’s not part of the Ruling.

The RM42m was not from SRC International although the case reads SRC. The money trail shows the RM42m came from a loan which MayBank gave to another Company which may or may not have been linked to SRC International.

Judge Nazlan was with MayBank at that time and was in the know. He should have been a witness in the SRC case. Instead, he presided over the case in the High Court. He should have recused himself.

Judge Nazlan should be brought before the Judicial Ethics Committee and sacked by the Agong. Former Prime Minister Najib Abdul Razak’s conviction on the RM42m SRC International case will cease to exist as if it never existed at all. The court has no jurisdiction.

Let’s not ask which country follows the rule of law. We should focus on which Supreme Court follows the rule of law.

Politically motivated . . .

Senior Sarawak lawyer Patrick Anek Uren posted the following, for what it’s worth, in my TimeLine in FaceBook on Tues 30 Aug 2020:

“I tend to concur Najib’s case is ‘political’ by the various missing pieces that should have been brought in but were left out.”

“Zeti and her husband and a Minister N.Y. were left out. They were the doorkeepers. The going out and coming in of money had to be through the door they kept guard over. They should know it’s the right or wrong money is coming in. And they should stop it if it is the same wrong money having previously gone out and now coming in through the same door.”

“And on the charge of money laundering, Najib should not be charged alone. He should be charged together with those doorkeepers. And to single him out to be charged only makes it looked as if his charges were politically motivated.” See here . . .
https://m.facebook.com/story.php?story_fbid=pfbid02VpFMEgn7AucNZEqMnWHdgfM7xhhwoceK6nP96VnYXbhp77yQe3KY9fXZftybxiebl&id=522048619

Disciplinary action . . .

We can be forgiven for thinking that the catalyst for the LoD was the Bar Council threatening disciplinary action against Najib’s lawyers on the SRC case.

The Bar Council may have added insult to injury when it imported language into the statement that was probably unbecoming of a professional body that takes its mandate from the legal fraternity.

It’s not the work of the Bar Council to protect the court system or defend the judiciary even if they were under attack from all sides. See here . . .
https://www.malaymail.com/news/what-you-think/2022/08/28/no-one-shall-undermine-public-confidence-in-the-judiciary-hafiz-hassan/25257

Some examples from the statement suffice. They demonstrate why senior lawyer Zaid Ibrahim was so upset with the Bar Council: agast, abused, disrepute, frantic acts, defiance, sudden discharge, undermine, unscrupulous strategies, perversion, abuse, tactics, purported injustice, self-inflicted, crafty schemes, purported victimisation, highly mischievous, vicious and unwarranted attacks, threats, wholly condemns, irresponsible parties, and unsavoury pressure.

If the Bar Council wants to take disciplinary action against Najib’s lawyers, it should just go ahead. Instead, it raved and ranted in the statement, became hysterical, and virtually ran amok like fanatics at a public march . . . eyes rolling with the whites showing, beating on the chest, tearing at the hair, crying, screaming, wailing and moaning as if possessed by any number of demons.

Legal profession . . .

Opinion isn’t law. Only the court can declare law. The Bar Council’s take on the Legal Profession (Practice and Etiquette) Rules 1978, as the barometer “for the conduct of lawyers in the country and underlying paramount duty of lawyers as officers of the court”, is a matter for the court in seeking closure.

Patently, the issues in conflict between senior lawyer Zaid Ibrahim and the Bar Council may be a matter for the court. It has nothing to do with Zaid Ibrahim’s legal firm and the Bar Council.

Finding dignity . . .

There’s a case for the Bar Council finding it’s dignity again. It must resist the temptation to borrow the Attorney General’s hat “when it’s perturbed by politicians’ comments and when attacks are made on the administration of justice, whether seditious or bordering on contempt of court”. See here . . .
https://www.freemalaysiatoday.com/category/opinion/2022/08/30/bar-council-should-ignore-politicians-and-focus-on-lawyers-discipline/

and here . . .

https://www.nst.com.my/news/nation/2022/08/826339/bar-council-umnos-loud-stand-against-federal-court-decision-attack

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BREAKING NEWS! . . . It’s surprising people didn’t take to the streets on Judge Nazlan . . .

Perfection in writing for perfection in law . . .

It’s surprising people didn’t take to the streets on Judge Nazlan . . .

The great majority may not be familiar with Judge Nazlan and Najib’s RM42m SRC International case!

Commentary and Analysis . . . Democracy, according to spiritualist, mystic and yogi SadhGuru, only works if the people participate. Democracy, he cautions in You Tube videos, isn’t about voting once every five years and going home and sleeping.

For those unfamiliar, SadhGuru runs the Isha Yoga Centre worldwide and mostly shuttles between India and America. He gets invited to world meets on everything and anything. He claims that he sat down on a rock outside town one day for no reason in particular except that he had four hours to kill between business meets. He was enlightened and opened his eyes from meditation. He appears to be able to answer any question put on anything. He’s known for falling back on the reality that nothing exists.

SadhGuru urged the people to form Movements on issues and take to the streets if government closes the door to dialogue and/or the court denies them hearing. Street movements, he pointed out, will have an impact on election results.

Patently, the concept of government was “evil” — and by extension the court since the latter isn’t about ethics, moral values, theology, sin, God, justice or truth but only about the rule of law — and on paper they (government and court) can do anything they want unless restrained by the people taking to the streets. Ironically, when government runs amok, in law the court was expected to restrain it.

Surprising . . .

It’s surprising that so far no one has taken to the streets on the Federal Court allegedly giving the short end of the stick to former Prime Minister Najib Abdul Razak on the RM42m SRC International case in Appeal. The short end of the stick was a violation of the rule of law, the basis of the Constitution. The Federal Court cannot belabour in the delusion that the letter of the law, by itself, is law. It isn’t law at all.

In 2018 in retrospect, on Dec 8, wikipedia wrote that the Anti-ICERD (International Convention on the Elimination of All Forms of Racial Discrimination) Rally or Himpunan Aman Bantah ICERD (bahasa) Rally of thousands was held at Dataran Merdeka, Kuala Lumpur, by various Opposition political parties and NGO.

The Rally, estimated by police at 50K, by organisers at 500K and by the Opposition at 1m, was held despite the Prime Minister’s Office announcing earlier on Nov 23 that it was withdrawing from the ratification of the Convention. The Convention, even if ratified, wasn’t law in Malaysia unless applied in national law.

The issue in the Convention wasn’t the Special Position by way of reasonable proportion in the Federal Constitution — note it’s not the Malaysia Constitution — but it’s controversial observance in the breach by government paying lip service to the rule of law and acting with impunity. The RM42m SRC International case on abuse of power comes to mind on the AG acting with impunity.

Najib’s losing battles . . .

Najib, away from the Rally on the Convention, has been fighting losing battles in court, beginning with the SRC case. See here . . .

https://www.newmalaysiaherald.com/2022/08/18/najib-my-right-to-counsel-and-fair-hearing-merely-illusory/

and here . . .

and here . . .

Najib can lodge Petition for Pardon with Istana Negara and Agong for the years, 2009 to 2018, when he was Prime Minister.

He should not mention court cases in an early Petition. It would be premature to mention the tainted High Court Ruling, mistrial and miscarriage of justice. These areas can be mentioned in a late Petition i.e. if push comes to shove and Najib has to count even one day behind bars after Federal Court Review. See here . . .

Pardon isn’t for wrongdoers. It’s for those who have been wronged and those who may be wronged. In the US, Pardon was granted even before someone was brought to court or may never even be brought to court. President Trump, for example, pardoned his daughter Ivanka and her husband Jared Kushner just before leaving office. It’s unlikely they would have been dragged to court on anything. It was about Executive Privilege. No one in America screamed that the Pardons were nepotism.

Agong may be in the same position as the US President and other heads of state on Pardon, among other things, especially given the fact that no novel developments in law take place in Malaysia and therefore there are no related declarations on law. I have written previously, more than once, that Agong should Pardon the Prime Minister, Bank Negara Governor, the Chief Secretary to the government and Cabinet Secretary, and heads of government depts when they leave office. That would prevent the AG from abusing his powers and/or framing charges in a way to “fix” them. The AG can’t be allowed to run amok in court.

It can be argued that perhaps by ommision and commission, that perhaps overtly and covertly, mistakes were made in the High Court and court of appeal. Let’s not go there. However, it’s time to separate the men from the boys on the Way Forward, for finality of closure.

Movement on the streets . . .

If there’s Movement which takes to the streets on the way the Federal Court may be presiding on the SRC case, it would be on Judge Nazlan emerging as the elephant in the room.

The Federal Court sees no elephant, only hearsay, no conflict of interest, and Ruled the the Witnesses on new evidence were about privileged communication covered by the Official Secrets Act 1972. The unanimous Ruling was a violation of the rule of law. It’s inconceivable that there was no dissenting judgment.

The OSA isn’t the stumbling block. Privileged communication remains only under OSA, not during cross examination in court. The AG cannot sue the court on OSA and Witnesses being party to alleged illegalities. The Witnesses can be cross examined on a willing questioner and willing answerer basis. There’s no need for Witness Statement and Affidavit in Support lest they violate the OSA.

The Apex Court held that Judge Nazlan’s involvement in SRC – described as strategic resources and not SRC — before the SRC case was publically known, covered by the media from early days, and should have been raised by Defence in the High Court. It implied that it was too late now when there had been finality of closure on Judge Nazlan not recusing himself since Defence didn’t raise the issue back then, and can’t do so now in the Federal Court. The Apex Court didn’t describe Defence efforts as “litigation by ambush”.

The Defence probably didn’t realise the full impact of Judge Nazlan being in “conflict of interest” on the SRC case until, according to the media, anonymous packages with allegedly incriminating evidence landed on Najib’s doorsteps. The former Prime Minister then connected the dots on admissible hearsay, albeit too late according to the Federal Court in looking the other way on Judge Nazlan, by Ruling that the new evidence had nothing to do with the main RM42m charge and was therefore irrelevant. See here . . .

https://www.dropbox.com/s/rox5fjrphk8bnfx/doc-20220819-wa0148.?dl=0

and here . . .

https://www.dropbox.com/s/te46qj0ft1nortc/DOC-20220819-WA0149.?dl=0

The Federal Court did not differentiate between admissible hearsay and inadmissible hearsay and the fact that the new evidence wasn’t about the RM42m. The Apex Court, with a straight face, Ruled that Judge Nazlan wasn’t caught in a conflict of interest situation and that Najib’s Application on the matter was hearsay. It’s not hearsay if there’s corrobative evidence under the Evidence Act 1950.

The Federal Court may be looking at the SRC case through the wrong end of the municipal drainpipe by falling back on bundle of authorities on case law and technicalities to deny hearing Applications. It’s the merits of the case in court that matters.

Abuse of power . . .

The Federal Court wants Defence to focus on rebutting Judge Nazlan’s take in the High Court Ruling on abuse of power. Judge Nazlan didn’t completely define abuse of power with reference to the SRC case.

The Federal Court, based on Oral Submission by Defence, can and may Rule mistrial in the High Court, and set aside the High Court and court of appeal Rulings, and send the SRC case back to the High Court to be heard before a new Judge or hear the case itself.

The Apex Court, in dismissing the Application on Judge Nazlan as conflict of interest, said that it would look at the High Court take on abuse of power and that the Defence still has a chance.

It’s unusual that the Federal Court said this. It’s advising the Defence on the Way Forward when it was degenerating into the politics of distraction, disruption and obstructionism. It’s not surprising the Prosecution saw no reason to protest and was prepared to be in cahoots with the Federal Court as party to illegalities i.e. denying Defence hearing on Judge Nazlan.

Judge Nazlan in obiter dictum — it cannot be part of the Ruling — alleged that Najib had “overarching control” in SRC and was the “shadow director”. Even if true, Najib could not have acted alone.

After saying that “Najib did not return the RM42m”, Judge Nazlan did not suspend Ruling. That was violation of the principles of natural justice i.e. one of the three criteria in law, the other two being common sense and universal values. Judge Nazlan could have asked Najib to deposit the RM42m in court, i.e. if he still has the money with him, and allowed SRC International to prove that they are eligible to claim and entitled to hold the money.

Shadow director may exist in the Companies Act. However, the Act cannot violate the Doctrine of Separation of Powers and tread on Executive Privilege and the constitutional reality that the Prime Minister and Parliament stand indemnified for acts in office.

The High Court Ruled that a prima facie case had been made out. The court probably fell back on the Raja Azlan Shah case law on abuse of power on the prerogative and discretionary powers of government and management and read it in isolation.

Najib has already gone after the Attorney General, separately, for abuse of power on the way he framed the SRC charges i.e. mixing fiction with fantasy. He can only strengthen his case even further now against the AG in the wake of the Federal Court defending Judge Nazlan on not recusing himself in the High Court. It was a breach of ethics on the part of Judge Nazlan and abuse of power by the AG.

There’s case law by the Federal Court on the AG abusing his powers in the Asian Arbitration case. There was immunity against prosecution. Prosecution can proceed if immunity could be waived. However, it couldn’t be done. If the Director of Asian Arbitration had waived immunity, paving the way for prosecution, it would have been a different matter altogether. Except perhaps in Japan, no Director would suddenly be stricken by conscience and embark on kamikaze and/or commit hara kiri after true confession.

Najib has immunity from prosecution . . .

In the SRC case, and all other cases against Najib, he did not waive “immunity from prosecution”. His immunity can only be waived by himself. No court can remove the immunity. It’s nonjusticiable i.e. not for judicial consideration and resolution.

The Prime Minister and Parliament stands indemnified for acts in office. This indemnification cannot be waived by the Prime Minister and Parliament. Again, no court can remove the indemnification. It’s nonjusticiable.

We don’t even have to go into the Doctrine of Separation of Powers and a whole host of other mitigating factors on immunity and indemnification . . . the Cabinet System based on the consensus principle and collective responsibility, the prerogative and discretionary powers of government and management, organisational systems and structures being inherently based on compartmentalisation — i.e. no one person knows everything — which ensures checks and balances for transparency and accountability of the system and structure.

Rule of Law . . .

If there’s Movement on the streets on Judge Nazlan, the people should demand that the Federal Court uphold the rule of law.

CJ, based on a police report reported by the media, should be asked to recuse herself. She can and may refuse. Then, Agong would have to come in.

If one million people take to the streets on Judge Nazlan, the Federal Court, AG and MACC will quickly come to their senses.

The people need to familiarise themselves with the crux of the SRC case. It’s not about the charges.

Judge Nazlan will have to be brought before the Judicial Ethics Committee.

Again, Agong will enter the picture.

The people must not gather in the streets in support of Najib. In law, the Bebas (Free) Najib movement in the streets cannot free him. The Movement will only make Najib look bad in the eyes of the people. Najib can only be freed by the court. Many people tried the Bebas Movement for Anwar Ibrahim and Harun Idris. They failed. The duo went to jail anyway.

The people can only gather in the streets against Judge Nazlan.

If the nature of human relationships needs to be regulated, it can only be done by the rule of law or by out of court settlement, Pardon, immunity, indemnification or by Movement in the streets.

In the rule of law, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law.

The letter of the law, by itself, isn’t law.

The letter of the law, by itself, is black and white. Again, it isn’t law.

The spirit of the law comes in various shades of grey. There are exceptions, qualifiers, caveats, ifs and buts, and special circumstances.

Opinion isn’t law. Only the court can declare law.

SPECIAL NOTE TO READER . . .

Dear Reader, if you like this Article, please consider sponsoring our Blog. That will help underwrite the cost of running it. We help keep the Issues alive.

Even RM5 every four months will be a big help.

Banking details are as follows:

Country: Malaysia

Bank: MayBank
Account No: 160148889580
Account Type: Savings
Corporate Name: Rosaline Kotter

Thank you

Don’t forget to Like the Article and Follow the Blog. Share the Article with at least two Friends. Tks

BREAKING NEWS! . . . Najib’s new defence team had reasons to withdraw, file discharge . . .

Perfection in writing for perfection in law . . .

Najib’s new defence team had reasons to withdraw, file discharge . . .

No one has examined the constitutional impact of charging a PM for acts in office for which he is indemnified!

Commentary and Analysis . . . All the media reports on Najib’s new defence team withdrawing from the RM42m SRC International case have come true.
See here . . .
https://www.newmalaysiaherald.com/2022/08/18/najibs-defence-team-barred-from-discharging-self-by-federal-court/

and here . . .

The new lawyers may be taking the cue from the 20-Page badly-written Federal Court Ruling on the Motion for new Trial. The court system can be saved if the rule of law prevails. See here . . .
https://www.newmalaysiaherald.com/2022/08/17/najib-bid-for-new-trial-smothered-by-technicalities-osa72/

and here . . .

https://www.dropbox.com/s/mnq5qkbvypop6ca/broad%20grounds%20-%20dato%20sri%20najib%20%28motions%29_220816_134425.pdf?dl=0

If the Federal Court upholds the court of appeal on the High Court conviction, without giving the Defence a hearing, it would be a violation of the rule of law. The court of appeal saw no reason to interfere in the High Court Ruling on the grounds that there were no errors in facts and no errors in law.

Former Prime Minister Najib Abdul Razak can file Originating Summons at the High Court for declaration on a point of law on the Federal Court Ruling on the court of appeal on SRC without the Defence being heard. The High Court would refer to the Federal Court. There’s no constitutional court in Malaysia. The Federal Court can sit as the constitutional court.

Declaration would not be remedy. It may be Advisory Opinion for cases in court.

The Federal Court said in the 20-Page Ruling that it would visit Judge Nazlan’s take on abuse of power, among other charges in the SRC case. The Apex Court can ask the Defence to make an Oral Submission on only one point: abuse of power. The Federal Court, based on the Oral Submission, can set aside the court of appeal take on the High Court Ruling, and declare the High Court conviction a mistrial on the grounds that there was no prima facie case.

The charges, if defective, may have been based on a fatal flaw in law.

The High Court Ruled that a prima facie case had been made out. The court probably fell back on the Raja Azlan Shah case law on abuse of power on the prerogative and discretionary powers of government and management and read it in isolation. The High Court was oblivious to the Doctrine of Separation of Powers, the Cabinet System based on the consensus principle and collective responsibility, the concept of organisational structures being based on checks and balances arising from compartmentalisation i.e. no one person knows everything, and due diligence and forensic accounting on the money trail.

There are related areas like Article 153, the New Economic Policy (1970 to 1990), quota system, Article 160(2) on Definition of Malay, and political donations and civil action on money laundering.

Najib remains the only person charged on the RM42m SRC International case. It seems that no one aided and abetted him on the RM42m and that no one was involved in a conspiracy. Even if Najib had “overarching control”, he could not have acted alone.

How Discharge works . . .

Although anything may be possible in court, it’s only Najib who can discharge lead lawyer Hisyam Teh. The court merely records the discharge. The entire defence team goes once the lead lawyer withdraws from the case and informs the court that he has discharged himself.

In law, the Discharge in fact works in two ways. The Client can discharge the lawyer. Alternatively, the lawyer can discharge himself or herself. The Court allows and records the discharge. What the CJ was saying is that the court won’t record the discharge. In law, she can’t say that the discharge isn’t allowed especially in criminal cases. In civil cases, discharge may not be possible until commitments made by the lawyer who has taken fees are fulfilled.

Hopeless situation . . .

The 20-Page Ruling tells the new lawyers what lies ahead for them. It may be a hopeless situation. The Federal Court Ruling on the Motion for new Trial may already have been written before the Defence was heard.

Patently, the new lawyers have no choice but withdraw from the SRC case. After all, they only just took up the case.

They had expected the Federal Court to bend over backwards and be fair to ensure the rule of law is upheld. Instead, the Federal Court appears to have read only what the Prosecutor submitted. The court implied that it sees no reason to read Defence Submission or even read them at all. There’s no point being in court if judges don’t read.

SRC may be no exception. There has been widespread speculation for years that judges don’t read. The court clerks may read. Judges may be just listening to examination in chief, cross examination, reexamination, oral submission and then Ruling. That’s tantamount to miscarriage of justice and merits Pardon.

One judge told me out of the blue, “I read your case”. Why should he tell me that he read my case? He’s supposed to read my case. His statement implied that judges don’t read.

Finality of closure . . .

The Federal Court said there was finality of closure in the High Court on Judge Nazlan. Although only the court can bring closure, finality of closure comes after Federal Court Review, not after High Court. If there was finality of closure after the High Court, why did the case go to the court of appeal and is now in the Federal Court?

It’s unfortunate that the Umno statement on the new Trial did not mention finality of closure. See here . . . https://www.newmalaysiaherald.com/2022/08/17/ruling-in-najibs-case-can-tarnish-judicial-integrity-says-zahid/

If a case can go back and forth, it should be allowed to do so. Otherwise, it would be a violation of the rule of law. It’s tantamount to miscarriage of justice which merits Pardon.

SRC case in the social media . . .

The following FB post in an Australian lawyer’s Timeline discusses Najib’s SRC case from different angles. The Klang-born lawyer blogs as Gopal Raj Kumar (not real name). He’s a 2nd cousin on my mother’s side.

I am posting unedited.

https://m.facebook.com/story.php?story_fbid=pfbid02qSySU7PU8AyJnZi9siM9D3R4338JWnHabVKi9sQiT2z93qpxWcDsmNrxzttUfR58l&id=100002331003663

Mansor bin Puteh:

Can’t Hearsay evidence can be resubmitted if documents are verified to be true copies… Was it meant to be a good suggestion?

Gopal Raj Kumar:

Mansor Bin Puteh, Hearsay can be admitted into evidence providing that the maker of the hearsay statement and his evidence is available for examination and cross examination. There is admissible hearsay and inadmissible hearsay. Much depends on the quality and relevance of that evidence it purports to be.

Mansor bin Puteh:

Gopal Raj Kumar, so the judgment did not spoil the show after all!

Gopal Raj Kumar:

Mansor Bin Puteh, The judgment was flawed because the processes that led to the judgment was flawed at inception.

There are many issues which should have been re examined and reviewed for a lack of understanding, or then evidence itself and how the discretion of the judge ought to have been applied in these matters.

More importantly the fact that if Najib was implicated in the commission of the crimes he was charged with, they could not have safely convicted him because evidence of a conspiracy involving, Jho Low (undisputed) and Zeti Azahar was cause enough for the court to re open or to dismiss the case and call for a retrial.

When three people are accused of assaulting a man killing him, one of the is caught, the other two abscond, you cant convict the man you’ve arrested. Why? there is no evidence as to who caused the fatal blow that killed him. The other two like Jho Low, Zeti and in fact even Goldman Sachs were all culpable.

Till all the facts have been established beyond reasonable doubt (and the benefit of the doubt belongs to the defendant -in this case Najib) the case cannot be established.

He can be charged with other forms of misfeasance like negligently participating in a scheme or schemes which cause the national treasury to lose money but not on the charges he faced. There is sufficient doubt about his guilt on those charges.

Moreover no one has examined closely the constitutional impacts of charging a PM for acts in office for which he is indemnified. To put it crudely, if he has to be charged for what he did in office, Mahathir can and must be charged and tried for losing MYR30 billion in FOREX failures, in the Petronas scandal and in the Bank Bumi and Tin scandals which caused Malaysia tens of billions of dollars.

If I was asked to defend Mahathir in such a situation, the first thing that would come to mind in his defence would be the indemnities he and parliament are entitled to for what they did in office. Thats why those indemnities are there.

A solitary loud mouth who posed as their lawyer (not Shafee) gave them awfully bad advise. But they were not alone. A host of money grubbers and carpet baggers were in tow hearing them and then gossiping about what they knew to Najib’s opponents.

Mansor bin Puteh:

Gopal Raj Kumar, i mean the documents implicating nazlan was deemed hearsay. Surely documents cannot be hearsay as they are legit.

Gopal Raj Kumar:

Mansor Bin Puteh, It is not hearsay of the maker of the statement in the document can attest to the veracity of the statement and document being correct. Otherwise if the document (say like a Picasso) is found by an expert to be his work it is admissible even though Picasso is not around to attest to the authenticity of his art. So yes in short you are correct. we live in strange times.

Lanunsabah:

The case is flawed even at thef beginning… The case was registered as SRC AMLA case against Najib but the money was not from SRC and the company that deposited the money never claimed back the money.

The company’s directors was never asked why they deposited the money in the first place. The worst thing is that the whole conviction was based on hearsay without the person produced in court. The presiding Yang Arif came up with his own conclusion without looking at all the witnesses statements and cross examinations.

The main culprits was never brought to the court but they convicted the person that they accused of. The AG must be held responsible for all of this prosecution and persecution.

Gopal Raj Kumar:

Lanunsabah, I think you understand the flaws better than most.

Lynda Wong:

Lanunsabah, No need for prosecution witnesses when their testifying has no merits in the judgement as script already written beforehand.

My Comment . . .

In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law.

The letter of the law, by itself, isn’t law at all.

The spirit of the law isn’t black and white.

There are exceptions, qualifiers, caveats, ifs and buts and special circumstances in the rule of law.

According to the law schools, “it’s not possible for anyone to know law”.

The University of London tells students that “law, ultimately, is the power of language”.

Police report . . .

In a separate, and related development, the social media has reported that a police report has been lodged against the CJ on her husband’s alleged involvement as a “fixer” in court cases. Apparently, he was in court two days ago when the CJ and panel of judges rejected Najib’s motions.

If true, the CJ should recuse herself. The CJ can and may refuse. Then, Agong would have to come in after the Judicial Ethics Committee meets on the CJ.

Here’s the link to the FB post: https://www.facebook.com/zamani.ibrahim.9/posts/pfbid02QpiyarbzkLT1cM34tunEbQGvXUoVcCLao9oNTd7JxYKFdhXiYyS3HLCiv1hrX2e4l

Here’s another FB post which helps keeps things in perspective: https://www.facebook.com/100080293126676/posts/pfbid0ikQWniDi6b53RBbFdex5BMXRvVKv12hWuJ2vEoRzR6VTuf3ipVAunU52PQrobykGl/?d=n

A five-member Federal Court bench led by Chief Justice Tengku Maimun Tuan Mat is hearing the Appeal by Najib. Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, and judges Nallini Pathmanathan, Mary Lim and Mohamad Zabidin Diah make up the Panel.

Najib’s legal team includes lawyers Zaid Ibrahim, Liew Teck Huat and Ruben Mathiavarnam. Hisyam Teh Poh Teik is lead lawyer.

Lawyer V Sithambaram, who is prosecuting under a special licence issued by the attorney-general, is assisted by Donald Joseph Franklin, Sulaiman Kho Kheng Fuei and Mohd Ashrof Adrin Kamil.

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BREAKING NEWS! . . . Najib’s bid for New Trial smothered by technicalities, OSA’72 . . .

Perfection in writing for perfection in law . . .

Najib’s bid for New Trial smothered by technicalities, OSA’72 . . .

New Trial main issue in 20-Page badly written Federal Court Ruling released in great hurry!

Commentary and Analysis . . . In the end, when push came to shove, the Federal Court may have put on blinkers, notwithstanding the many case laws it cited on blinking, breathing and the like on lacuna (gap). It fell back on discretions — no matter how they were exercised, judiciously or otherwise — technicalities and the Official Secrets Act 1972 (OSA) to deny former Prime Minister Najib Abdul Razak’s well-timed bid for a new Trial.

The Apex Court said the new evidence on Judge Nazlan was nothing new, that it had been reported earlier in the media, that it should have been brought to court earlier, that it was irrelevant, it had nothing to do with the RM42m and in any case there must be finality of closure — read High Court — and therefore it was too late.

The Federal Court Ruled that it did not have to look at this and that from the Defence and allowing anything to be filed means nothing. It could have said that it looked at the matters filed but could not take them into consideration for various reasons. Obviously, the Federal Court has selective reading habits. It’s pointless filing anything if judges don’t read. See here . . .

https://www.dropbox.com/s/mnq5qkbvypop6ca/broad%20grounds%20-%20dato%20sri%20najib%20%28motions%29_220816_134425.pdf?dl=0

It was cold comfort that the Federal Court, out of the blue, said that it would look at aspects of Judge Nazlan’s High Court Ruling on the RM42m SRC International case. It cited abuse of power, among others.

Let’s not place too much hope on such assurances which may be more about smoothing ruffled feathers in Defence.

Charges framed . . .

Based on the charges, as framed, the Federal Court can only concur with the Court of Appeal that there were no errors in facts and no errors in law in the High Court Ruling against Najib. It may no longer be possible for Najib to clear his name through the court.

That was how Anwar Ibrahim lost Sodomy 1 and Sodomy 2. He petitioned for Pardon.

Anwar had no hope in the way the charges were framed. The Attorney General’s Chambers (AGC) is good at this. They fall back on the letter of the law, by itself, as law. It isn’t law at all.

The Defence in the Najib cases must be brilliant on the rule of law to persuade the Federal Court. There are not too many brilliant lawyers around given the lack of reforms in law education. No brilliant lawyer may have made their way in the judiciary. They don’t sit on the Bench. Former Attorney General Tommy Thomas, for example, went into exile in Canada in protest against Mahathir Mohamad. He only came back just before GE14 in 2018 and became Mahathir’s AG. Hypocrisy knows no bounds in the local legal fraternity.

Herald case . . .

We can recall, to digress a little, that it was the Federal Court that Ruled against the Herald, the Catholic weekly, on Allah being used to refer to the “Christian God”. It implied that Allah was the “Muslim God”. The Federal Court, finding lacuna in local law, cited the principle in law from the Ananda Marg case in India. The principle was not applicable. It was not law in Malaysia but Advisory Opinion which had no merit. The Federal Court went ahead anyway. It Ruled against the Catholic Church and became a laughing stock worldwide.

In jurisprudence, the court cannot get into theology. The court is also not about ethics, moral values, sin, God, justice or truth. The court is only about the rule of law.

Civil court . . .

Still, to digress a little again, we find the civil court in Malaysia pointing at the syariah court on this and that. That’s not within the jurisdiction of the civil court. The civil court should keep a discreet silence on the syariah court. There’s no dual legal system in Malaysia. Syariah isn’t law but based on a person’s willingness to accept it. It would be unconstitutional to impose syariah on anyone. There’s case law on this from the Supreme Court of India.

Fallback position . . .

Najib should adopt Petition for Pardon as the fallback position based on miscarriage of justice. If the Agong decides there has been miscarriage of justice, there has been miscarriage of justice. The matter is nonjusticiable. No court will go against Agong.

The Pardon isn’t for those who did wrong but for those who were wronged.

Privileged communication . . .

The Federal Court was caught between the Prosecution harping on alleged hearsay by Najib in the Motion for a new Trial and the Witnesses being privileged communication covered by the OSA. The Federal Court disingenously said that it was not known what the Witnesses would say and whether they would support Najib. Ironically, it said in the same breath that, in any case, it was under official secrets as argued by the Prosecution.

The Witnesses could have made a real difference and paved the way for a new Trial. That was the bonus point. The real contribution would have come from the elephant in the room.

It’s hard to believe that the Federal Court, in citing case law on this and that, ignored the elephant in the room: the related SRC situation involving Judge Nazlan existed before the RM42m SRC case. It necessitated, therefore, that Nazlan recuse himself. It’s not a must that he preside over the case. Since Judge Nazlan didn’t recuse himself, Najib deserves a new Trial.

The merits of a case need not run the gauntlet on case law. The case speaks for itself. Again, foreign case laws are not law in Malaysia. They are not binding. At best, they are Advisory Opinion.

There’s also the little matter of Judge Nazlan having no criminal court experience and having unexplained sums, million plus, in his personal account/s. He was transferred from the commercial court to the criminal court just for the SRC case. After the case, he was transferred back to the commercial court. Shortly thereafter, he was elevated to the Court of Appeal. All this must make suspicious reading. Other judges only made it to the superior courts not long before they were compulsorily retired.

Of course, no judge can be forced to recuse from a case. If a judge refuses to recuse himself or herself, the court must find other ways to ensure that common sense, universal values and the principles of natural justice were upheld. Justice must not only be done but be seen to be done.

Expecting too much . . .

It was no doubt expecting too much for the Federal Court to adopt a wide latitude in interpretation — “we are in Malaysia” — and take the road less travelled. It could have happened if members of the Bench had contributed to novel developments in law and/or declared such developments as law.

The unkindest cut of all was that the Ruling was unanimous. There had been expectations that there would be at least two dissenting judgments. That would have facilitated the Appeal on the Motion.

Ad Hoc Prosecutor V. Sithambaram’s virtually “childish” retort, “So what if Nazlan had worked for the bank”, ignores the fact that the judge did not disclose his involvement with SRC International when the RM42m case began. The issue isn’t about the judge working with Maybank. The issue is that Judge Nazlan was with Maybank which handled SRC as a Client and he was involved. He should not have presided over the RM42m SRC case. See here . . .

The Prosecution and the Federal Court belaboured the point that Judge Nazlan’s involvement with SRC before he heard the case has nothing to do with the RM42m which was allegedly misappropriated. That’s not the Narrative from the Defence.

It was no surprise that the Federal Court and the Prosecution were speaking the same language on the Motion to adduce fresh evidence which would allow a new Trial.

Long way to go . . .

We may have a long way to go on the rule of law, the basis of the Constitution. Malaysian lawyers and the court generally fall back on the letter of the law, by itself, as law. It isn’t law at all.

In the rule of law, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law.

The social media has been left wondering why the Federal Court Ruling on the Motion by Najib didn’t take too long. It was handed down not long after Defence Counsel Hisyam Teh summed up in court on Tues 16 Aug. The Ruling, which should have been considered at least over two weeks, may have been largely written after the Prosecution summed up on Mon 15 Aug. The jury may still be out on whether the rush to judgment was non-compliant with the oft-cited “amalan, tatacara dan prosedur Mahkamah” (practices, timeline related to procedures and procedures of the Court).

It was bad news all the way when the Federal Court took the maxim, “justice delayed is justice denied”, out of context. It rejected an Application on adjourning the main Appeal by three to four months. There have been calls in the court of public opinion that the main Appeal, given Najib’s change of lawyers, merits adjournment by six weeks to six months.

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BREAKING NEWS! . . . RM42m ‘misappropriation’ in SRC case lacks perspective . . .

Perfection in writing for perfection in law . . .

RM42m ‘misappropriation’ in SRC case lacks perspective . . .

High Court Judge Nazlan may not have come to equity on RM42m SRC case with ‘clean hands’!

Commentary and Analysis . . . The Federal Court may be persuaded against “putting on blinkers” and Ruling that new evidence offered by former Prime Minister Najib Abdul Razak on the SRC International case may not be relevant to the main RM42m “misappropriation” charge.

In law, according to subject matter experts, misappropriation is the unauthorized use of another’s name, likeness, identity, property, discoveries, inventions, etc without that person’s permission, resulting in harm to that person. More on that later.

The jury may still be out on whether misappropriation, based on the money trail, fully satisfies the term “beyond reasonable doubt” i.e. the Test of the Burden of Proof in criminal cases.

The RM42m may not be the main issue in the SRC case. The case cannot be simplistically reduced in court to the proverbial Milo stealer’s plight. The Milo stealer — like the sardine stealer and the single mother who stole Infant Formula — was fined and jailed as soon as he or she left the supermarket with the suspect good/s. The Milo thief was not offered plea bargaining — an alien concept — based on “precedent” set by the Attorney General’s Chambers (AGC) and the court. The plea bargaining formula from memory on recent history goes: “I stole 10 chickens, I offer to return 4 chickens. I will keep, without prejudice, the other 6 chickens.”

The AGC expresses no objection on the chicken thief’s “temerity in law”, ostensibly covered by money laundering laws, and the court goes along without batting an eye on the “saya tak tahu” (I don’t know) syndrome. The chicken thief, like former Sabah Chief Minister Musa Aman, laughed all the way to the bank. It may be politically motivated out of court settlement which benefits the accused. Musa claimed that the RM380m he collected was political donation. Due diligence and forensic accounting could have proven otherwise. Unlike the chicken thief, none of the RM380m was taken away by the Inland Revenue Board (IRB) or under money laundering laws.

High Court Judge Nazlan did note in his Ruling that “Najib did not return the RM42m to the source/origin i.e. SRC International”. The judge did not elaborate on the comment. He could have held back on sentencing and conviction. Najib could have deposited the RM42m in court. The onus would be on SRC International to prove that they can claim the money. Najib wasn’t offered plea bargaining by the Attorney General. Plea bargaining would have facilitated an out of court settlement. In the rule of law, there can be no discrimination.

Easier said than done . . .

Of course, it’s easier said than done. We don’t know whether Najib has another RM42m to replace SRC’s RM42m which was deposited in his account/s by CEO Nik Faisal. Ironically, Nik Faisal and another person controlled the said accounts under Power of Attorney (PA). It was unfortunate that Nik Faisal was not produced as the material witness.

The real story, we are told, is that the RM42m approved by the SRC Board was the Company’s contribution as political donation. It was meant for corporate social responsibility (CSR) activities. See here . . .
https://www.newmalaysiaherald.com/2022/08/14/federal-court-may-not-deny-bid-by-najib-for-new-trial/

The new Najib defence team has argued that Judge Nazlan, by not recusing himself on the case, may have given rise to the “conflict of interest” situation which albeitly would have been evident when charges were filed and/or before prima facie case was made out. Also, there was an unexplained RM1m+ in Judge Nazlan’s personal account/s. MACC probed him and sent the investigation papers to the AGC.

AG has to pass back the investigation papers to the MACC for further and better particulars or take action directly or indirectly through MACC. In jurisprudence, there’s principle and Maxim that “he who comes to Equity must come with clean hands”. The fact that the Judge was probed is telling. He has also lodged a police report on the matter. That’s unprecedented.

The Federal Court may bend over backwards to be fair. It can lean towards Najib to mitigate for him based on the “benefit of the doubt” situation which arises from political donation. Also, Judge Nazlan was probed by the MACC for not coming to Equity with clean hands. Justice Augustine Paul, it would be recalled, mitigated for Anwar Ibrahim during Sodomy 1. Anwar’s case, it has been argued, wasn’t about the rule of law. It was the letter of the law, by itself, being seen as law. It wasn’t law.

It may take time to go through and weigh the additional evidence based on the rule of law. If the court decides against Najib’s application, probably based on the letter of the law, the hearing of his final appeal will begin. Deciding against the Motion on new evidence may be easy. Deciding for may take time. If the Motion is rejected, Najib can Appeal on the constitutionality of the rejection, the rule of law being the basis of the Constitution. If he succeeds in the Appeal on the Motion, there may be New Trial.

Judge Nazlan on new evidence . . .

True, Judge Nazlan could not have connected the dots when the new evidence was happening. He would only have realised that the “conflict of interest” had arisen when the prosecution read the charges. The judge could have immediately recused himself, but for some unknown reason/s, he kept the new evidence to himself. Apparently, Najib did not know about the new evidence until it appeared in anonymous package/s left on his doorstep. He may have had an inkling earlier, as alleged by the prosecution hired from the private sector, but could not connect the dots. He did not see the forest for the trees. The new evidence completes the Big Picture.

If Judge Nazlan had disclosed the new evidence earlier, Najib could have filed a recusal Application, and another judge may have not found a prima facie case and/or rendered a different Ruling. It was a fatal flaw in law that the former Prime Minister was denied that right, perhaps deliberately. I stand corrected.

In jurisprudence, law ultimately being the power of language, the Apex Court cannot Rule that Judge Nazlan’s failure to disclose the “new evidence”, as he was privy to them earlier, was irrelevant to the RM42m misappropriation charge. That’s carrying simplicity to the extreme. The Ruling should focus on the “conflict of interest” issue based on the rule of law.

Again, the court cannot say that Judge Nazlan’s role in the formation of SRC International, mentioned initially as strategic resource company, may have been aborted and therefore the evidence was irrelevant. Patently, it doesn’t matter whether the new evidence was irrelevant or otherwise to the RM42m misappropriation charge. The bortomline: Judge Nazlan failed to clear the conflict of interest issue. To add insult to injury, Judge Nazlan held in the High Court Ruling that Najib — the court being oblivious to the new evidence — set up SRC International to benefit himself. This was an extraordinary leap of faith in the perverse and a violation of the rule of law. Judge Nazlan was being self-serving in the Ruling. If it can’t been seen how he was self-serving, we can fall back on jurisprudence which holds that the court isn’t about truth, but only the law, based on the rule of law.

Hearsay . . .

The prosecution may argue that the new evidence is hearsay since the accompanying Affidavits in Support were only signed by Najib. It appears that the signatures of those mentioned in the Affidavits are missing. In fact, notwithstanding the Official Secrets Act 1972, all potential Witnesses can file Witness Statements. That would facilitate examination in chief, cross examination and re-examination. Under the Evidence Act 1950, there must be corroborative evidence. Otherwise, it’s hearsay. See here . . .

According to lead counsel Hisyam Teh Poh Teh, as reported by the media, the Motion on new evidence met all the requirements under Section 93 of the Courts of Judicature Act. It met the criteria under established case law viz. R v Park, Ladd v Marshall and Anwar Ibrahim v Public Prosecutor.

The stage for an Appeal before the Appeal proper may have been set for Najib’s new defence team on the Federal Court’s probably majority rejection — unlikely unanimous — of new evidence on the RM42m SRC International case. The defence can take the cue from the legal arguments in dissenting Rulings if in favour of Najib.

If the Federal Court can’t be unanimous on the Motion for new evidence, based on consensus, it should probably Rule for a New Trial.

Chief Justice Tengku Maimun Tuan Mat presides over the five-person apex court Panel.

Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, Federal Court judges P Nallini, Mary Lim Thiam Suan and Mohamad Zabidin Mohd Diah are the others members of the Panel.

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BREAKING NEWS! . . . Federal Court may not deny Najib’s Bid for New Trial . . .

Perfection in writing for perfection in law . . .

Federal Court may not deny Najib’s Bid for New Trial . . .

It’s open secret that Trial by Media since from even before 2013 denied former Prime Minister Najib Abdul Razak the right to free and fair Trial!

Commentary and Analysis . . . If the media reports on the Pekan seat are true, former Prime Minister Mahathir Mohamad has failed to eliminate the Razak Family from Malay politics. Malay prefer the politics of old families from the Archipelago. Although KeralaMari (from Kerala) Mahathir can claim some support among Malay, it’s unlikely his non-Archipelago family would be accepted like the Razak family.

By considering his son Mohd Nizar for Pekan, former Prime Minister Najib Abdul Razak may be taking no chances with his Appeal in the Federal Court on the RM42m SRC International case although, when push comes to shove, he can Petition for Pardon based on miscarriage of justice.

Still, the Federal Court — although it rejected an Application to adjourn the RM42m SRC International Appeal set for Mon 15 Aug 2022 — cannot insist that Najib’s new defence legal team be ready to proceed with arguing the Application for a New Trial. See here . . .

https://www.malaymail.com/news/malaysia/2022/08/10/report-najibs-newlawyers-said-to-plan-discharge-if-final-src-appeal-not-postponed/22117?utm_term=Autofeed&utm_medium=Social&utm_channel=Echobox&utm_source=Facebook#Echobox=1660121347

The Federal Court cannot reject arguments for a New Trial based on the fact that Trial by Media from even before 2013 denied Najib a free and fair trial. The court failed to place a gag order on the media. This was a fatal flaw in law.

In arguing for a New Trial, the defence would need to be prepared, lest it be reduced to “clutching at straws”. That takes time, perhaps six weeks, and even as long as six months, to review the Trial by Media which has taken place from even before 2013. Witnesses from the media would have to be summoned, their Witness Statements filed, and cross-examination conducted. There may be examination in chief and re-examination as well.

Applications . . .

Between the arguments for a New Trial and the Appeal, there can be any number of Applications for declarations on points of law although prima facie case was made out, disingenously, against Najib in the High Court. It would be preferable if there’s one Application asking the Federal Court for declarations on 15 points, for example, on law. This would involve declarations on Article 153, the New Economic Policy (NEP), the quota system, and political donations as well.

Under Article 153, Malay, Orang Asal and Orang Asli have special position, by way of a reasonable proportion, but only in four specific areas including opportunities from the gov’t to do business.

The MACC has declared more than once that government contracts are not corruption. The MACC does not do due diligence on government contracts, forensic accounting on the money trail and money laundering related to government contracts. It leaves political donations to the IRB (Inland Revenue Board) and Bank Negara (central bank).

D-Day Mon 15 Aug . . .

The question that would arise on Mon 15 Aug 2022 at the Federal Court may be on whether Najib’s new legal defence team would be ready on that day, but not for the Appeal but the bid for a New Trial.

The Federal Court, during case mention on Wed 10 Aug 2020 for case directions on case management, said that Najib’s Application for a New Trial would be heard first on Mon 15 Aug 2020.

Again, the Federal Court will probably not hear the Appeal on Mon 15 Aug 2022. It may be put off to a later date to be determined by the court. I stand corrected. See here . . .
https://www.malaymail.com/news/malaysia/2022/08/10/federal-court-to-hear-najibs-bid-for-src-retrial-first-on-aug-15-before-hearing-final-appeal-against-conviction/22113?

Zaid Ibrahim . . .

Partner, consultant and lawyer Zaid Ibrahim, according to media reports, said his firm had advised Najib to “abandon certain propositions previously put forward”, giving way to a reset in defence arguments”.

“We are purely focused on constitutional principles, the rule of law, principles of natural justice and the specific legal and factual issues in the application for retrial and the appeal proper,” he said in a statement carried by the media.

Zaid Ibrahim, it must be mentioned, has always been against Najib on all his cases. He may have suddenly “seen the light” on the rule of law. There’s no place for emotions, prejudice, bias and hate in law. The bottomline: the court cannot put on blinkers and “belabour in the delusion”, for want of a better term, that the letter of the law — by itself — is law. It isn’t law at all. See here . . .
https://www.thestar.com.my/news/nation/2022/08/13/najib-plays-his-last-card#.YvcGnx5jYpU.whatsapp

Likewise, DAP veteran leader Lim Kit Siang now wants to work with Najib. See here . . .

Spirit of the law . . .

In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law. Again, in the rule of law, no one is above the law, everyone is equal under the law, there can be no discrimination, and where there are rights, there are remedies. Having said that, Declarations are not remedies but perhaps can be persuasive on cases.

The Federal Court must be persuaded to adopt a wide latitude in interpretation and Rule and/or Declare based on the rule of law. That calls for contributing to novel developments which can be declared as law. Therein lies brilliance in law which can only come from perfection in writing for perfection in law. Law ultimately, according to law schools, is the power of language.

It’s the work of lawyers to look for the law and point it out. The court finds the law and declares it.

If former Sabah Chief Minister Musa Aman’s 46 corruption charges can be dropped based on the unverified claim that the RM380m he collected was political donations — indeed coming directly from timber contracts — there’s no reason why Najib should be saddled with similar charges i.e. that he derived personal benefits based on bribery and corruption. Najib, as the charges raised in various criminal cases show, allegedly committed abuse of power based on conflict of interest and criminal breach of trust.

Errors in facts, errors in law . . .

The Application for a New Trial isn’t like the bid to set aside the High Court conviction on the SRC case, the latter remaining a separate issue. The Federal Court, based on the earlier takes in two courts, can, may and will reject arguments that the SRC case in the High Court was a mistrial and miscarriage of justice based on the allegedly tainted Ruling. See here . . .
https://www.newmalaysiaherald.com/2022/08/06/najib-can-highlight-jugular-vein-in-criminal-court-end-all-cases/

Already, the Court of Appeal said on Tues 8 Dec 2021 that they saw no reason to interfere with the High Court conviction on 28 July 2020. The superior court saw no errors in facts and no errors in law.

High Court Judge Nazlan had large unexplained sum, RM1m+, in his personal account/s. MACC has probed the judge on the matter and sent the investigation papers to the Attorney General’s Chambers (AGC) and the Attorney General.

It’s being argued that Judge Nazlan should have recused himself since he had earlier, and prior, knowledge on matters which concern the SRC case in the High Court.

The tainted Ruling arises since Judge Nazlan may not have Ruled on Submission. He may have been influenced by Obiter Dictum i.e. the judge’s opinions and comments which should have been excluded from the Ruling.

Judge Nazlan allegedly went off at a tangent and pontificated sanctimoniously on this and that and that and this, throwing in highly personal and offensive remarks as well, probably in an act of “revenge” at Najib and his lawyer, Shafee Abdullah.

The duo, it has been said, mocked, ridiculed and humiliated the judge during the Hearing. It’s a known fact that Judge Nazlan has no criminal court experience. He may have been transferred from the commercial court to the criminal court just for the SRC case. After the case, he was transferred back to the commercial court. He has since been elevated to the Court of Appeal.

Counter-productive . . .

Having said that, looking ahead, it would be counter-productive if Najib’s new legal defence team argues during the Federal Court Appeal that there were errors in facts and errors in law in the Court of Appeal upholding the High Court conviction.

The Federal Court will hold, “as the charges stand”, that there are no errors in facts and no errors in law. It’s also about who the judge believes. High Court judge Nazlan did not believe Najib, saw no reason to give him the benefit of the doubt and ruled that a prima facie case had been made. The ruling may not have been based on the rule of law but the Trial by Media since from even before 2013. The media appears to have got to the judge and prevailed on him.

It would be indulging in wishful thinking and living on hope if the new defence team belabours in the delusion that the Federal Court can somehow be persuaded — based on Submission on tainted Ruling, mistrial and miscarriage — to set aside the High Court conviction and send the case back to the court of 1st instance to be heard before a new judge or hear the case itself. It may be difficult for the Apex Court to adopt such a wide latitude in interpretation. Old habits die hard.

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