Najib Can ‘Adduce’ Fresh Evidence For New RM42m SRC Trial

Najib Can ‘Adduce’ Fresh Evidence For New RM42m SRC Trial

By Joe Fernandez


The former Prime Minister can initiate developments via ‘letter of representation’.

There may be a case for Najib Abdul Razak to submit a “letter of representation” to Attorney General Idrus Harun on the former’s RM42m SRC International conviction by High Court Judge Mohd Nazlan Mohd Ghazali on Tues 28 July 2020. See here.

It would be a triumph for the rule of law, the basis of the Constitution.

If it’s true that Najib did not create SRC International to steal 1MDB money, in short there was no “abuse of power” as alleged, the High Court Ruling was a fatal flaw in law. It was unsafe for Judge Nazlan to convict the former Prime Minister. That’s tantamount to miscarriage of justice and mistrial given already the public perception of a tainted Ruling. See here.

Also, in hindsight, it appears that Judge Nazlan should have recused himself on the SRC International case. This was a fatal flaw in law.

It’s true that no judge can be forced to recuse himself or herself on a case. The onus remains entirely on the judge. Indeed, it appears that nothing can be done if a judge refuses to recuse himself or herself. However, the judiciary can still act in other ways against an “errant” judge, and thereby restore the credibility of the institution and public confidence.

Strangely, in taking a somewhat “undignified” approach, the Judiciary lodged a police report on allegations against Judge Nazlan. It’s not known whether an Internal Inquiry would be held as the judiciary remains tight-lipped on the matter. More on that later. See here.

Court Rules On Letter

Generally, based on media reports on past court cases, if the AG accepts a letter of representation, he would take the matter to court and recommend DNAA (discharge not amounting to acquittal). If the court feels it would be unfair to have the charges hanging over the head of the accused, it can substitute the DNAA with DNA (discharge and acquittal). This was done, after GE14 on Thurs 10 May 2018, in the BungalowGate case involving then Finance Minister Lim Guan Eng who served under Mahathir Mohamad.

Tommy Thomas, who also recommended that the LTTE 12 as dubbed be freed from terrorism charges related to reviving the defunct Tamil Tigers of Sri Lanka, was Attorney General.

In Sabah strongman Jeffrey Kitingan’s case, DNA came four years late. It’s not clear why this happened when conviction, given the facts of the case, doesn’t arise. No doubt this was yet another black mark on the judiciary. It further fuelled public perceptions that “politics does intervene in the judiciary”, literally reduced to yet another government department after Mahathir became Prime Minister in 1981. The public perception may have its day in court soon i.e. if the Federal Court does not decline to Declare on the Basic Features Doctrine, written or implicit, on the Doctrine of Separation of Powers for checks and balances and Parliament, its sovereignty limited by the five year term, being subordinate to the Federal Constitution as the supreme law of the land. See here.

Mahathir, as Prime Minister, had alleged in the early 90s that Jeffrey made off with RM4b from the Sabah Foundation when the latter was Director under his elder brother, Chief Minister Joseph Pairin Kitingan. Jeffrey was appointed by Harris Salleh, Pairin’s predecessor, probably to pacify Sabahans and the elder Kitingan who was outspoken on Orang Asal (indigenous) rights. Lawyer and Senior Minister Pairin, in his own words in the media, had never been in the Chief Minister’s office until he assumed the post in 1985 after Deputy Prime Minister Musa Hitam intervened amidst the PTI (pendatang tanpa izin or illegal immigrants) taking to the streets on the change of government. The sense of alienation and betrayal among Sabahans was complete.

An international external audit by PriceWaterHouse, commissioned by the Federal government under Mahathir’s directive, found that the RM4b was the difference based on customary and industry practices between spot prices and longterm contract for timber from Sabah Foundation concession areas.

In the wake of GE14, Jeffrey as deputy federal tourism minister reported assets totalling RM75m to MACC (Malaysian Anti Corruption Commission). Jeffrey had always been careful with money. When we had luncheon once in Kota Kinabalu, journalist Kanul Gindol joining us as well, I picked up the Bill. I didn’t ask for reimbursement from malaysiakini although I was their Sabah Correspondent.

Najib’s Options

In Najib’s case, the AG can also leave the former to make the case in the Federal Court which would hear the Appeal against the Court of Appeal upholding, on Wed 8 Dec 2021, the High Court Ruling.

Unlike other letter of representation cases, the Federal Court can declare Najib’s SRC case a mistrial, set aside the High Court conviction and Court of Appeal Ruling, and send the case back to the High Court. It will be heard before a new Judge.

Alternatively, the Federal Court can hear the new case, i.e. if the AG decides to proceed with it.

In any case, if push comes to shove and there’s a new Trial, the prospects for successful prosecution hangs by the slimest of threads, if the thrust of the case against Najib has already collapsed and imploded in the face of new evidence turning up in his favour in recent days. This may be poetic justice in more ways than one in a still unfolding soap opera where other still emerging evidence from sources suggests that fugitive fund manager Jho Low’s father, Larry Low Hock Peng, was allegedly the mastermind behind the son. The plot allegedly began with a sugar-coated offer by the elder man, through the son, to help get back Penang for the ruling Barisan Nasional (BN). Then, other things happened.

Blessing In Disguise

In the High Court, in a blessing in disguise, the Defence failed to persuade the court not to declare law in favour of the prosecution. It also failed to persuade the judge not to declare law against the accused. All this gives a clue to how the court system in Malaysia, avoiding a wide latitude in interpretation like the plague, works. The letter of the law, by itself, isn’t law at all. The recent High Court Ruling, deferring to an inferior court on religion in the MyKad based solely on the letter of the law, refers.

Under Article 145 of the Federal Constitution, “the AG shall have power, exercisable at his discretion, to institute, conduct, or discontinue any proceedings for an offence, other than proceedings before a syariah court, Native Court or court martial”.

There’s case law from Raja Azlan Shah quite some time ago, and from Asian Arbitration recently, that prerogative and discretionary powers are not unfettered if abuse of power can be proven.

In the Asian Arbitration case, the court held that the AG had abused his powers. This Ruling, based on putting on blinkers and looking at the letter of the law only, may yet be revisited as it implied that the Asian Arbitration Director had immunity from prosecution, and therefore could act with impunity, even in the face of alleged clear criminal wrongdoing. The spirit of the law, Intentions, wasn’t considered.

Deposit RM42m

The AG probably need not proceed with the new Trial if Najib offers to deposit the RM42m from SRC International, reportedly for corporate social responsibility (CSR) activities, with the court. The Company would have to prove that it’s entitled to get the money back. That’s easier said than done after it transferred the money to Najib’s personal account/s.

The RM42m, it would be recalled and not disputed in court, went through internal checks and balances at SRC International, both at the management and Board of Directors level, before it was transferred to Najib’s personal account/s where the mandate was assigned i.e. the account/s not being managed by him.

If we assume the original RM42m was spent, or mostly spent, it was not immediately clear whether Najib has another RM42m to deposit in court, and whether the matter arises. Alternatively, he can provide a bank guarantee for the said amount.

If the company, SRC International, informs the AG that it has closed the file on the RM42m, there would be no further action in court on who gets the money.

Precedent

The jury may no longer be out on “disciplinary” action against Judge Nazlan if we consider another ethics case involving the judiciary. See here and here.

If there’s any truth in the allegations that Judge Nazlan’s personal account/s received RM2m which can be traced back to 1MDB, the money if still available can be frozen, seized and forfeited by civil action under money laundering laws. The Department of Justice (DoJ) in the US chose this approach on 1MDB money laundering activities in America. According to media reports, the DoJ got back billions for Malaysia through civil action within its jurisdiction and by working with other jurisdictions.

The AG in Malaysia can institute a criminal case if civil action on money laundering activities is challenged. Malaysia has so far mostly pursued criminal cases on 1MDB without first filing civil action. The Test of the Burden of Proof in criminal cases has a high threshold, “beyond reasonable doubt”.

Already, there have been criminal cases thrown out by the court as the AGC (Attorney General’s Chambers) could not prove that suspect funds originated from 1MDB.

One recent case involved RM100m seized from Umno, in the wake of GE14. The court put on blinkers and ordered that the money be returned to the party. If the AG had filed civil action, the money could have been frozen, seized and forfeited without prejudice i.e. no admission of criminal liability. There would be no mention of 1MDB or any source in a civil action case.

The Definition under international law reads that money laundering activities stand proven by the existence of assets which far exceeds what could be legitimately accumulated over a lifetime. International law, incorporated in national law, has Application in local jurisdiction. – New Malaysia Herald

About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.