‘Hysterical’ Bar Council Presidents Attack Agong’s Pardon
The Bar Council Presidents, current and past, may be out of their depths on the Agong’s discretion on Pardon. They should look at the Bar Council Charter and stop defending the judiciary.
The RM42m SRC International case was concluded in the High Court. It serves no purpose in flogging a dead horse. If Judge Nazlan has come in for a good deal of criticism, it should not be considered collateral attack on the SRC conviction.
Judge Nazlan has been caught in “conflict of interest” situations, not once but three times.
Alternatively, the Bar Council may be belabouring in delusions driven by demons — i.e. signs of mental illness caused by imbalances in brain chemistry — on Agong’s residual and reserve powers as hereditary Ruler. He has “discretion beyond discretion” as upheld by the Perak case law 2009.
The Bar Council should never mention Federal Court and Agong in the same breath on Pardon, lest they be cited for contempt, sedition or even worse, treason i.e. waging war against the head of state.
Nine people — read Lahad Datu intrusion in 2012 — lost their heads the last time that charges were brought for waging war against the Agong. No one will shed any tears if Bar Council Presidents, past and present, lose their heads for their inability to draw a line somewhere in law and avoid Pandora’s Box opening. No court will open the floodgates.
The Bar Council needs to get the collective thumb out of the you-know-what, lest they remain disoriented, confused and chaotic and mislead the public on how Agong grants Pardon.
Prime Minister Anwar Ibrahim, in stating the government’s position, has already said the Agong has sole discretion on Pardon.
Miscarriage Of Justice
Patently, the Bar Council has no locus standi on Agong’s Pardon. The theory that Pardon cannot be premature remains a non-starter.
Pardon can be Immediate but not for no rhyme or reason and it cannot be premature. Immediate Pardon Applies when there has been miscarriage of justice arising from Tainted Ruling based on mistrial.
Federal Court Review Panel head Judge Abdul Rahman Sebli ruled on 31 March that former Prime Minister Najib Razak should be discharged and acquitted on the RM42m SRC International case. It was sheer brilliance in Ruling based on novel developments in law which, generally, comes from highly skilled lawyers.
We know what plagues the legal fraternity, the Bar Council and the court in Malaysia. It has never been proven that they can fathom jurisprudence, constitutional law, and the greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law.
In Malaysia, it’s the easy way out when stakeholders fall back on the letter of the law, by itself as law, and act with impunity. It’s not law at all. It’s dictatorship.
It happened on 23 August last year when Chief Justice (CJ) Tengku Maimun Tuan Mat claimed discretion beyond discretion, denied adjournment for three to four months, disregarded lawyer Hisyam Teh on discharge, did not record it in adding insult to injury and disrespect for a senior lawyer, and jailed Najib unrepresented.
Earlier, CJ Mainun treated lawyer Hisyam like a little kid and ordered him to “sit down” and listen to the Prosecution’s oral submission. He was not allowed to leave the courtroom.
Grave Strategic Error
In retrospect, there was grave strategic error on D-Day when Judge Vernon Ong read a Ruling first and declared it as the majority opinion.
Judge Sebli, as Panel head, should have read first. In that case, he could have declared it as majority opinion, if Judge Ong kicks up a fuss and throws a tantrum on the Bench. If Judge Ong held his peace, Judge Sebli would be the unanimous Ruling.
Pardon for all in detention isn’t about IF but WHEN…. when Pardon comes for Najib either before or after AidilFitri this year, it won’t be premature unless abuse of power can be proven in a dramatic turn of events.
Unfortunately for the haters, discretion isn’t law. The court has no jurisdiction i.e. it’s not a matter for judicial consideration and resolution.
The court of law is only about law. Agong and the Attorney-General (AG) aren’t in the same boat on abuse of power.
In the AG’s case, he can be charged for abuse of power under Article 145. There’s no similar Article for Agong.
We can recall that the Federal Court ruled that Tommy Thomas, as AG, committed abuse of power when he dragged Asian Arbitration Director Sundara Rajoo to court for corruption. The Director, in fact, had immunity under the rules of international arbitration.
Thomas wasn’t charged for abuse of power in the Asian Arbitration case. He walks around free as a bird, having probably persuaded himself that he was above the law.
Agong Updated On Ex-AG
Agong may have been advised that Thomas, in fact, risks being charged with abuse of power in the SRC case. In the rule of law, no one is above the law, all are equal under the law, there can be no discrimination save as provided by law, and where there are rights, there are remedies.
Najib was denied, not once but twice, when he sued Thomas for abuse of power.
The AG created dangerous precedent, based on prosecutorial discretion, when he circumvented the Evidence Act 1950 and read other laws in isolation against the Basic Features Doctrine (BFD) viz. mostly the MACC (Malaysian Anti-Corruption Commission) Act 2009 which metes out disproportionate and unlawful punishments, the Penal Code, and money laundering laws which can be used in civil cases.
If so, Najib should have been released by the Director General of Prisons on 23 August last year i.e. the same day that he was jailed unrepresented.
If we look at the series of case laws declared by the Supreme Court of India for example, it can be argued that these provide Advisory Opinion that the BFD permeates the Federal Constitution in Malaysia, implied if not written.
There’s lacuna (gap) in local law on BFD. If the lowly Asian Arbitration Director has immunity, Parliament and the prime minister in Malaysia stand indemnified under BFD, has immunity, and implicit Pardon for “acts in office”.
BFD remains the first hurdle in Malaysia. No prime minister can be dragged to court if it cannot be crossed. The court must address jurisdictional and constitutional issues.
The consensus of legal opinion remains that the BFD hurdle can only be crossed at the risk of creating dangerous precedents i.e. every prime minister in Malaysia would be in jail, for sins of commission and omission, when he or she steps down.
After Najib, former Prime Minister Muhyiddin Yassin faces the prospect of occupying the same cell when its vacated sooner rather than later.
Four Years
No one, not even the “demented” Bar Council, expects that Najib will be in jail for 12 years. He gets four years off for good behaviour. He serves no more than eight years but Pardon comes sooner after half the time has been served.
Pardon may well be in four years time — heaven forbid — if Agong concludes “erroneously” that there was closure on 31 March at the Federal Court Review on the RM42m SRC International case.
Closure, however, does not mean finality in litigation if judicial review can be reinstated, preferably at the High Court, on new grounds which highlight procedural unfairness.
Judicial review can be reinstated at the Federal Court, if there’s quorum, and it cannot be about the merits of the case.
Najib lost the judicial review because lawyer Shafee Abdullah did not leave out the merits of the case from oral submission and didn’t focus enough on procedures, due process and the rule of law.
A case, once closed, will never be re-opened, but re-trial can be ordered. Judge Sebli, in ruling that Najib should be discharged and acquitted, did not order re-trial on the grounds that there were so many transgressions in law against the former prime minister.
The superior courts were about errors in facts, errors in law and benefit of the doubt.
Judicial review isn’t criminal case. It isn’t about guilt or innocence. Judicial review may visit the thirteen judges in four courts having the same story but only on procedural grounds.
The story by itself, when push comes to shove, isn’t enough. There’s no conviction if it isn’t perfected for perfection in law.
