Law In Malaysia Never The Same Again After Najib Cases (Part 1)

Law In Malaysia Never The Same Again After Najib Cases (Part 1)

By Joe Fernandez
-1 May 2022


QCs turning up at Federal Court for SRC RM42m case implicating Najib most interesting development in legal history.

Malaysiakini subscribers, who previously put the controversial online news portal in trouble with the Federal Court and cost it RM500K in fines, after pro bono lawyers were found wanting on alleged contempt of court, have dismissed former Prime Minister Najib Abdul Razak’s 94 Grounds of Appeal in the RM42m SRC International case as “unnecessary verbosity”.

This implies that “necessary verbosity” exists. This must be a first in world “legal” history “created” by malaysiakini subscribers ventilating ignorance in public. Ignorance is bliss. A little knowledge is dangerous. The subscribers got carried away by the right of reply but could not rebut the 94 Grounds of Appeal.

The venom which malaysiakini subscribers spat out on Najib was unbelievable. They avoided criticising the Federal Court on the 94 Grounds of Appeal. There are no prizes for guessing which political party, if any, was behind the unprovoked attack on Najib.

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

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

“It’s not possible for anyone to know law.”

“It’s a bit of a mystery on exactly what skills lawyers bring to court.”

As seen in the 94 Grounds of Appeal, verbosity or no verbosity, it’s good strategy in law to create disorientation, confusion and chaos. That’s the reality in court and no amount of complaining by the judge/s will help make a difference on the matter, for better or worse. The Federal court will find it difficult to rule or declare when there’s disorientation, confusion and chaos. It can of course rule the Najib case was mistrial and/or declare that the Doctrine of Separation of Powers prevents the Judiciary from getting involved in Executive privileges or Parliament.

If the Federal Court falls apart on the Najib case/s, the Agong can enter the picture on miscarriage of justice. He can grant Pardon. The matter is nonjusticiable. No court will go against Agong. See here …

The Special Court in the Federal Constitution remains a separate matter. No Agong has been brought before the Special Court. The Agong can only be brought before the Special Court if he steps down. In any case, based on precedence, no Agong who stepped down has been brought to the Special Court.

Law exists not to be enforced but just in case it has to be enforced.

Brilliant Lawyers

Brilliant lawyers will make it difficult for the court to rule/declare in favour of the other side and against this side. It would be great mystery how the court will be able to rule/declare against this side unless it has extraordinary skills which can only be described as magical, if not miraculous. Under our adversarial system of justice, the loser has the right to know why he or she lost. It’s not enough to pronounce and convict or compensate without explaining why someone lost. When QCs enter the picture, the court is not dealing with run-of-the-mill lawyers in Singapore and Malaysia, lacking in courtroom skills, belabouring in the delusion that the letter of the law is the sum total of the rule of law.

In the UK and India among other Commonwealth jurisdictions, unlike in Singapore and Malaysia, there are numerous brilliant lawyers nurtured by Mentors. This approach is lacking in Singapore and Malaysia where lawyers continue to be handicapped by the academic LLB and the colossal CLP “exercise in memorising power”. These have nothing to do with court room skills.

It’s not the QCs alone, either from the UK or Commonwealth, who have gone through Najib’s case/s. The retired Federal Court judges in the Commonwealth would have given their input as well by this time to the QCs. The international legal fraternity closely follows cases, especially the controversial ones, reported by law journals.

Transfer of RM42m

Najib’s SRC case for one, it must be stressed, isn’t about the transfer of RM42m from SRC International to his account/s for corporate social responsibility activities. The money hogs the media headlines. The coverage continues to mislead public opinion — read malaysiakini for example — and builds negative public perceptions on Najib. Multiple defamations are taking place at exponential speed. The transfer was never disputed, nor queried, in the High Court or the Court of Appeal. It went through internal checks and balances, based on compartmentalisation i.e. no one person knowing everything and no one acting unilaterally, in SRC. There was consensus.

The transfer can probably be queried, and disputed, if the entire SRC management had been sacked on the matter, and the Board of Directors dismissed, and Najib was not held solely responsible — i.e. single-handedly — for the RM42m. If there were no internal checks and balances in SRC, based on compartmentalisation, it can’t be argued that Najib allegedly committed abuse of power. Internal checks and balances, based on compartmentalisation, exist in SRC even if there were none since they are supposed to exist and good corporate governance demands that they exist. Again, if no internal checks and balances based on compartmentalisation existed in SRC, it can’t be argued in law that Najib can be charged with abuse of power on the matter. It’s the responsibility of an organisation, whether in a democracy or otherwise, to have internal checks and balances based on compartmentalisation.

We don’t know whether there was an Internal Inquiry in SRC on the RM42m i.e. if it was necessary. It would be a fatal flaw in law if an Internal Inquiry was necessary and was not held.

No Law, No Crime

In law, no one can be faulted for a “crime” that he or she did not commit. This is about law, not the proverbial truth. The latter can’t be a matter in court. No law, no crime. There must be law before there can be crime. (Nullum crimen nulla poena sine lege).

In law, privileged communication cannot be introduced in court as proof of this and that even if there were alleged “illegalities” or “being party to illegalities”. Alleged “illegalities” are highly subjective. The court can Rule on the matter based among others on a line being drawn somewhere in law.

The Cabinet System, likewise, is based on the consensus principle i.e. no voice against. If the Cabinet System degenerated into majority decides and/or rubber stamping, it can’t be argued in law that the consensus principle does not exist. It exists even when it does not exist as no Minister has been known to resign from public office based on a principle viz. that the Cabinet was no longer about collective responsibility. The court can’t be reading the minds of Cabinet Ministers. Prime ministerial dictatorship does not exist even if it exists. The Cabinet won’t allow it even if they allowed it. Lawyers look for the law and point it out. It’s the work of the court to find the law and declare it.

We don’t see the entire Najib Cabinet being dragged to justice on SRC International. The weakness of all the cases in court against Najib is that he’s being faulted for matters which come under collective responsibility. It was a fatal flaw in law.

Abuse Of Power By Najib?

The charges against Najib, all highly subjective, are about abuse of power, conflict of interest and criminal breach of trust. No court will go into the prerogative and discretionary powers of government and management, unless abuse can be proven. Generally, the court considers abuse very rarely, if at all, and that too very grudgingly.

There’s case law in Malaysia, from Raja Azlan Shah many years ago and Asian Arbitration recently, on abuse of power. Prerogative and discretionary powers are not unfettered if abuse can be proven. Here, on the Asian Arbitration case, the Federal Court ruled that the Attorney General had committed abuse of power. It was the Ruling that the Asian Arbitration Director, having diplomatic status, had immunity from prosecution. The jury may no longer be out on whether the Ruling was based solely on the letter of the law approach, i.e. not law at all. Based on the spirit of the law, it can’t be argued that diplomatic immunity still prevails even when criminal wrongdoing has taken place and had been widely exposed. The AGC (Attorney General’s Chambers), the subject of the AG’s wrath in the memoirs . . . “My Story: Justice in the wilderness”, was completely lost by the Ruling on the Asian Arbitration case, and may have gone into collective mourning. I stand corrected.

Line In Law

In law, a line must be drawn somewhere, lest Pandora’s Box opens. No court will allow the floodgates to open.

Having said that, subject to the line, Pandora’s Box and floodgates, there’s a case for the court to avoid putting on blinkers, and instead adopt a wide latitude in interpretation.

Except for eternal laws based on eternal truth — read all laws of science and/or Word of God — law in fact does not exist. It only exists if we create it.

The letter of the law isn’t law at all. Parliament makes laws but cannot declare them. Only the court can declare law.

In that case, law exists, and has always existed based on common sense, universal values and the principles of natural justice.

Law ceases to exist, as if it never existed, if it’s not enforced, cannot be enforced, is widely flouted and is bad law. Invalid laws still exist in the books unless declared otherwise by the court.

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

In Singapore and Malaysia, both sides tend to harp on the letter of the law only, and hence the court’s hands are tied. The hangings in Singapore on drug trafficking are a case in point. Contrary to public perceptions, the court does not decide but Rules on “decisions” taken by both sides in submissions. To add insult to injury, there are about 40 “ouster” clauses in Malaysia and codified law like Sec. 39B of the Dangerous Drugs Act, both areas being violations of the rule of law. By ouster clauses, an infringement of the Doctrine of Separation of Powers, Parliament removed judicial power to review the decisions of public authorities. Judicial power exists in the Federal Constitution, under the Basic Features Doctrine — implied if not written — and cannot be removed even if it’s “removed”.

Court’s Hands Tied

The 94 Grounds tell us how the QCs may argue the Appeal in the Federal Court.

After the Appeal, there may be Federal Court Review.

If the Review turns out to be another Appeal, as in the malaysiakini case recently, the Federal Court will rule that it has no jurisdiction.

It’s unlikely that the QCs will make the same mistake that malaysiakini did.

Malaysiakini can file Notice of Application that it intends to withdraw the Review and file a fresh Review. It’s not clear whether malaysiakini intends to do that. It appears petrified by the “no jurisdiction” Ruling. The online news portal generally relies on pro bono lawyers. It’s unlikely that they are highly skilled. It takes brilliance, it must be reiterated, to be in law. — Joe Fernandez

Look out for Part 2: Malaysia is still stuck with the CLP for mostly non-Malay lawyers and the LLB. These programmes don’t turn out brilliant lawyers. – 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.