Agong ‘Convenes’ On Najib Pardon, ‘Mistakes’ In FC Ruling

The Sultans, being hereditary rulers, have discretion beyond discretion as evident in reserve and residual powers. It was highlighted by the Perak case law 2009.

All indications are that the Agong and brother Rulers may be in consensus that former Prime Minister Najib Razak merits Pardon based on the 31 March Ruling — “mistakenly” read 2nd — by Chief Judge of Sabah and Sarawak Abdul Rahman Sebli.

The Sultan of Johor has also expressed “outrage” at Najib being in jail alone.

The Sebli Ruling finds miscarriage of justice based on Tainted Ruling arising from mistrial. In short, Najib was denied due process and fair trial and jailed by hook or by crook.

Judge Sebli ruled in strong words that Najib should be given an Order of acquittal and discharge for all the offences charged under the RM42m SRC International case. He argued against re-trial since there had been so many infringements on procedures, and law, in the case against Najib.

If not for the allegedly “unauthorised” and “disputed” alternative Ruling by Judge Vernon Ong Lam Kiat, perhaps “inadvertently” read first and declared as the majority Ruling, Najib would need no Pardon.

Najib would have been freed by Judge Sebli on 31 March. He would have made it, as widely anticipated by friends and many foes alike, for the Friday prayers at the mosque nearest the Palace of Justice in Putrajaya.

The Najib Family would have erupted in great joy and made headlines around the world for days, if not weeks, months and years, for making judicial history.

Now, Najib would need Pardon that would “reconcile” the two Rulings and formalise his release from jail.

Judge Sebli, as head of the 5-Person Federal Court Review Panel, should have read the Ruling first and declared it as unanimous. He has discretion on reading the Ruling.

This isn’t about a football match where the final score, when the whistle blows, reads 4-1 on the scoreboard. The Najib case remains about Ruling (Sebli) vs. Ruling (Ong). It’s one against one but not as in one-two-three zoom, and not one against four.

The Ong Ruling, which originated mysteriously, goes off at a tangent to Timbuktu. The Sebli Ruling was available in print. The Ong Ruling wasn’t available in print. It seems the court secretary was “conveniently” on leave on D-Day.

Procedural Unfairness

It could not be proven that the Federal Court Appeal complied with its own procedures which does not allow for discretion beyond discretion and “new Protocols”. So, the question of the Federal Court Review Panel dismissing Najib’s judicial review on 31 March does not arise. There was procedural unfairness by the Federal Court Appeal Panel which jailed Najib with impunity.

Najib, based on Judge Sebli’s Ruling, has a case against the Federal government for wrongful arrest, confinement and deprivement of liberty and denial of the right to life under Article 5. There has also been violation of human rights, under international law, read by national law as compliant.

Judge Sebli found procedural unfairness when the Federal Court Appeal Panel did not allow adjournment for three to four months.

The Panel also did not record that newly-appointed lawyer Hisyam Teh had discharged himself and further, in adding insult after injury, did not allow him to leave the courtroom. Chief Justice (CJ) Tengku Maimun Tuan Mat virtually ordered lawyer Hisyam to “sit down” and listen to the Prosecution’s oral submission.

There’s no reason for Hisyam to listen when his presence was “academic”.

Najib, Judge Sebli pointed out, was legally unrepresented when CJ Maimun jailed him on 23 August last year.

It was procedurally unfair when Hisyam’s discharge wasn’t recorded by the Federal Court Appeal Panel. It was about maintaining the fiction that Najib was legally represented.

Perfection In Conviction And Law

In the greater emphasis on the spirit of the law, in the rule of law on the basis of the Constitution, albeit read with the letter of the law, the manner in which an accused was convicted comes first. A conviction can only follow if it can be perfected for perfection in law.

Najib was jailed unconvicted. He remains a political prisoner under alleged arbitrary detention. He should be placed under house arrest pending Pardon.

Judge Sebli cited case law and also implied that Najib deserved the benefit of the doubt — but not in so many words — in assessing his character and demeanour in court on the issue of legal representation.

Judge Sebli Heads Panel

Again, it’s Judge Sebli who heads the 5-Person Federal Court Review Panel on the RM42m SRC International case, not Judge Ong. Besides Ong, the Panel comprises Federal Court judges Rhozhariah Bujang and Nordin Hassan and Court of Appeal Judge Abu Bakar Jais.

It must be reiterated that Judge Ong had no business reading his Ruling first.

The Panel reports to Judge Sebli and no one else. The judge expected consensus — no voice against — on the part of the other four members of the Panel.

Judge Sebli was in for a rude shock on D-Day when Judge Ong came up with the alternative Ruling which argued in the opposite direction from his Ruling.

It’s not clear why Judge Ong worked on an alternative Ruling for disputing the no-doubt “consensus” Ruling already being written by Judge Sebli as head of the Panel. The judge may have had input from other members of the Panel.

There’s a case here for the Judicial Ethics Committee (JEC) meeting on alleged insubordination, indiscipline and breach of ethics.

The Special Court can also convene on the matter if abuse of power can be proven on any party or other parties exercising discretion beyond discretion, if any, on the Ong Ruling.

It’s not known how it was determined that three members of the Panel went along with Judge Ong’s Ruling, again so dramatically different from that read by Judge Sebli.

The grapevine has been going viral that if the three members wrote no part of the Ong Ruling, they may have signed under “duress”, perhaps living in fear for their career on the Bench. — mediahit

About the writer: Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the South China Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.

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