Comparing jailbird Najib with Anwar akin to comparing an apple with an orange

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Comparing jailbird Najib with Anwar akin to comparing an apple with an orange

KUALA LUMPUR, June 13, 2023: Two online news portals, in the last 24 hours, published opinion pieces regarding disgraced prime minister (PM) Najib Abdul Razak laguishing in prison for crimes against the state.

Free Malaysia Today’s columnist Shankar R.Santhiram compared Najib’s imprison with that of Prime Minister Anwar Ibrahim.

His argument: Anwar was pardoned, so why not Najib?

Such a comparison is grossly skewered akin to comparing an apple with an orange.

So, if someone is jailed for murder and another is jailed for stealing a tin of baby milk, is a comparison rational?

Anwar was jailed for sodomy, a case that many Malaysians deemed as politically trumped up charges.

The shameless Najib was jailed for crimes against the state - he and his administration failed to protect the national coffer from being plundered.

That has contributed significantly to ballooning the national debt to more than RM1.5 trillion - and it is no wonder the Ringgit is depreciating fast in the Forex Market.

Najib is the reason why Malaysians and their generations have to service the national debt!

So, is Najib’s crime trivial and thus be allowed to be forgotten and freed just like that? The least is to have the disgraced PM help recover and return as much money as possible to the Government.

Only then, perhaps, Malaysians can think about forgiving and pardoning him

The other news portal, newmediahit, titled “Anwar Ibrahim Has ‘Lead Role’ In Winning Najib’s Freedom” by Joe Fernandez is damaging to the 10^th prime minister’s image and reputation.

Fernandez is writing as it is a fact that Anwar is working towards freeing Najib the jailbird.

If there is any truth in this, Anwar will be politically hit in the eyes of law-abiding Malaysians who value equal justice for all.

Is Anwar really crumbling to Umno’s “corrupt demands”, thus damaging his integrity and principles in justice?

Also, as PM, Anwar should not get involved with a judiciary decision that jailed Najib. For that matter, Anwar should not interfere with an independent judiciary.

Now News Is Bad News reproduces below the publications of the two online postings:

 

Anwar was pardoned, so why not Najib?

Umno’s decision to petition the King to grant Najib Razak a pardon is exasperating.

Shankar R. Santhiram - 13 Apr 2023, 8:00am

 

It has been a week of relief and disbelief on the legal front in Malaysia.

Relief after Sam Ke Ting was freed by the Court of Appeal in the modified bicycle or “basikal lajak” case, after six long and arduous years.

First in 2019 and then again in 2021, the magistrates court acquitted Sam. The judgment written there was comprehensive. Yet, the prosecution appealed and in April 2022, the Johor Bahru High Court convicted and sentenced Sam to six years’ jail for dangerous driving.

Our legal system is puzzling.

For a country that wants to be a progressive democracy, we do not have a sentencing council or any official sentencing guidelines. In Malaysia most penal code offences, just state the minimum and maximum punishment, or simply the maximum.

Sentencing, upon conviction is still very much at the discretion of the magistrate or judge. The seriousness of an offense is a consideration. But other principles also apply, such as proportionality, being a first- time offender, etc.

Ultimately though, it is noticeable that one magistrate’s or judge’s sentence can vary from another.

When I inquired about the rather arbitrary nature of sentencing by our courts, one lawyer friend joked that it was ultimately dependent on the “mood” of the court. So, lawyers always work to “keep the court happy”.

That is probably why we see so many cases where different offenders in similarly serious cases receive radically differing sentences.

In the UK, which is the source legal system for Malaysia, the Sentencing Council for England and Wales was set up in April 2010. It promotes greater transparency and consistency in sentencing, while maintaining the independence of the judiciary.

The primary role of this Council is to issue guidelines on sentencing, which the courts must follow, unless it is in the interests of justice not to do so.

Perhaps, our minister in charge of law and institutional reform should consider doing likewise.

My disbelief on the legal front comes with the Umno Supreme Council decision to appeal to the Yang di-Pertuan Agong to consider pardoning Najib Razak. This is over his full and final conviction for misappropriating a staggering RM42 million.

Umno’s current president, a deputy prime minister with a stunning number of pending corruption cases himself, Ahmad Zahid Hamidi, ironically says his party will follow all existing legal procedures before making an appeal to the Pardons Board for consideration of the matter.

The PH Pasir Gudang MP Hassan Karim recently warned that a pardon for Najib would be a “disaster” for Anwar Ibrahim’s unity government and detrimental to the PKR president.

This was rebutted by Puad Zarkashi, an Umno Supreme Council member. Puad struck back telling Hassan not to practice double standards. He questioned whether Anwar’s royal pardon was detrimental to the then PH government.

Incidentally, many non-Umno ministers in the current unity government have distanced themselves from the decision by their government-partner to ask for a royal pardon for Najib. They just keep repeating that they will leave it to the wisdom of our King.

A petition opposing a pardon for Najib has garnered over 150,000 signatures and others supporting a pardon has between 19,000 and 35,000 signatures.

Some political analysts say the unity government has more to gain, and can ride on Najib’s popularity, especially on the “Malay-front.” Others say its image would be hurt if Najib is given a full pardon.

What is certain is that equating Najib’s potential pardon with Anwar’s pardon is ludicrous.

Anwar was accused of sodomising a male political aide in 2008 but was acquitted by the High Court in 2012. Subsequently, the appeals court overturned the acquittal and in 2015, the federal court upheld the conviction.

I still remember that the nation was in shock by the frivolity of the case.

Anwar reportedly, when addressing the panel of five Federal Court judges after his conviction was upheld, said: “You have become partners in crime in the murder of judicial independence.”

He went on to say “I maintain my innocence. This to me is a fabrication coming from a political conspiracy to stop my political career.”

Eventually, the then Yang di-Pertuan Agong pardoned him in 2018. Anwar himself said that the King found his conviction a travesty of justice. I reckon that most Malaysians agree with this.

Yes, sodomy is illegal in our Muslim-majority Malaysia. But for argument’s sake, it is an offence which is essentially a private construct? No one polices his neighbour’s premises to see if someone there is getting sodomised or not.

The nation does not get hurt by this.

However, Najib has been found guilty of looting money to the tune of RM42 million, which was transferred from SRC International – a former unit of 1MDB – into his private accounts. Additionally, there are a slew of other pending cases against him.

The nation has been seriously hurt by his actions.

Funds that should have been used to benefit our country and provide for good governance with better schools, healthcare, and welfare, were looted. Najib’s actions, together with the actions of other corrupt politicians, have ripped a gaping hole in the very fabric of our society.

Surely, even the sycophants can see the difference in pardoning Anwar and asking the same for Najib? - FMT

Anwar Ibrahim Has ‘Lead Role’ In Winning Najib’s Freedom

by Joe Fernandez Monday, 12 June, 2023 0 comment

 

Ex-Rosmah Mansor and charges, based on media reports on Anwar Ibrahim and Umno, worry about faith in the justice system on Najib’s plight in jail!

All indications, in the wake of the Umno meet, are that Prime Minister Anwar Ibrahim may not have it that easy in government if he stands on the wrong side of history. Former Prime Minister Najib Razak merits freedom based on alleged miscarriage of justice.

There are no two ways about it. Anwar can’t live in a state of denial after Umno made him Prime Minister for lawful reasons on Najib as well. We will explore this further in the Article.

Having said that, indeed it can be argued that Anwar’s political survival depends firstly on lawbreakers, on both sides of the Divide, being held accountable under criminal suits.

Money will probably be taken away by civil action.

Anwar will ensure at least temporarily, if not permanently, that the alleged lawbreakers don’t get in the way.

Some lawbreakers may be left alone by the AG if they don’t oppose the unity gov’t and return the money which originated from the public treasury.

Still, Anwar’s PH (Pakatan Harapan) Alliance needs Umno’s support in six states — Negri Sembilan, Selangor, Penang, Kedah, Kelantan and Terengganu — which face elections within the next two months.

The seat-sharing can only go well on the ground as well, if Anwar does not evade final resolution on Najib’s plight before the polls are held.

Najib remains the Father and Mother of all issues for Umno on gathering the votes on the Way Forward.

Umno’s united stand on Najib’s plight remains the elephant in the room for the unity government.

Anwar has been speaking up and speaking out on matters of public interest and public interest except on advising the Agong on Pardon for Najib.

Anwar Haunted

The prime minister may be haunted by Najib’s plight based on good reasons which will never go away.

Najib’s conviction wasn’t perfected in law for perfection in law. Therein lies miscarriage of justice.

If Agong says there has been miscarriage of justice and grants Pardon based on discretion, there has been miscarriage of justice. No court in the world can go against Agong.

Pardon and discretion are not law. The court has no jurisdiction on discretion i.e. it’s not matter for judicial consideration and resolution. The court of law is only about law.

Discretion does not exist if abuse of power can be proven. In Agong’s case, abuse of power does not exist, even if it exists, as he has residual powers and reserve powers as hereditary Ruler.

Agong has discretion beyond discretion as upheld by the 2009 Perak case law.

Abuse of power on discretion was proven by the recent Asian Arbitration case and by the Federal Court majority opinion, on 1 September 2020, on the Sabah Constitution.

Najib, in the wake of Asian Arbitration, was denied twice by the High Court on former Attorney-General (AG) Tommy Thomas committing abuse of power under Article 145 and the Basic Features Doctrine (BFD) which permeates the Constitution.

Parliament and government, under BFD “upheld” by the Supreme Court of India as Advisory Opinion for Malaysia through case law series, stand indemnified, have immunity, and implicit Pardon, “for acts in office”.

Advisory Opinion from Commonwealth jurisdictions can be cited in Malaysia, for the principle in law, where there’s lacuna (gap) in local law.

Mistake After Mistake

It’s true that the High Court did not visit the jurisdictional and Constitutional issues on the RM42m SRC International case. The matter wasn’t raised by Najib’s defence team and thereafter all hell broke loose.

It was mistake after mistake, by both sides and the court, until the Federal Court Appeal created a dangerous precedent on 23 August last year and jailed Najib.

The dangerous precedent, read with the Doctrine of Separation of Powers and the BFD, can only be nullified, voided and vacated by Pardon for Najib. Otherwise, it puts all future prime ministers at risk of being jailed for “acts in office”.

The Speaker of Parliament stands at risk too. This remains unforgivable thought based on thinking the unthinkable.

Najib, led by King’s Counsel (KC) Jonathan Laidlaw, may have a third attempt in the works i.e. hold Thomas at least accountable on abuse of power, even if he isn’t jailed lest it creates another dangerous precedent.

Pardon may be premature, Anwar and Agong the proverbial scapegoats on the plight of the former prime minister, if we look at the Federal Court Review Panel head, Judge Abdul Rahman Sebli Ruling on 31 March this year that Najib should be given discharge and acquittal (DNA).

However, so far there has been no Order perfecting Judge Sebli’s Ruling. The other four judges on the Panel put on blinkers and found that the court had no jurisdiction. There was no Ruling from the four judges including Judge Vernon Ong who read first.

Judicial Review isn’t criminal case.

Najib’s Family Has Doubts

If Najib’s family does not appear confident in the AG, it may be based on public perceptions and media reports. The thinking in social media sees Najib “returning all the money he stole before being released from jail”. No court in the world will say that.

In fact, it was observing affirmative policies — Article 153, New Economic Policy (NEP), quota system, and Licence Raj adopted from socialist India — in the breach, initiated by Mahathir Mohamad, that facilitated the plundering of the public treasury by all and sundry.

Najib said after GE14 that Mahathir was the Guru. “We all learnt from him,” said Najib.

 

If Najib’s family does not appear confident in the Attorney General, it may be based on public perceptions and media reports. – Facebook pic.

Mahathir, Daim Zainuddin, Halim Saad, all allegedly caught with their hands in the cookie jar, walk around free as birds.

The Johor Sultan said it best when he asked why Najib was in jail alone. He held that either Najib should be released or others should join him as well.

In law, there can be no discrimination, save perhaps as provided by law. No one is above the law. All are equal before the law.

Yet, only Najib was dragged to court. None of the Cabinet Ministers turned up in court even as character witnesses.

Obstructionist Muhyiddin Yassin didn’t turn up.

Obstructionist and PTI-friendly Shafie Apdal didn’t turn up. (PTI or pendatang tanpa izin, illegal immigrants).

The Cabinet system is based on two great principles viz. consensus (no voice against) and collective responsibility (all for one, one for all).

Matters In Court

Moving on, the court can only consider what’s before it.

Najib’s family should send letter of representation to AG for Order on Judge Sebli’s Ruling on DNA. There’s no need for a lawyer as it will confuse and complicate Najib’s plight and further delay resolution.

If AG accepts the letter of representation, the High Court will go along. The High Court, under Article 145, cannot go against the AG, except substitute DNA (discharge and acquittal) for DNAA (discharge not amounting to acquittal).

Judge Sebli ruled DNA. The AG cannot, in law, substitute with DNAA, as it risks abuse of power.

The judge is bound by what happens in court.

The parties in dispute on issues in conflict are bound by their pleadings.

Pardon may also be premature, if we consider that it’s more than likely, given the Lula case in Brazil, that the pending UN Review will find that Najib has been placed under “arbitrary detention”, as political prisoner when he should be under house arrest.

Former Brazilian President Lula, in digressing a little, was freed from jail by the UN Review and the court in the nick of time. He stood for the presidency again and defeated incumbent Bolsonaro.

Bolsonaro fled the country, after instigating unrest.

The court in Malaysia did not adopt a wide latitude in interpretation. It fell back on the letter of the law, by itself, as law and ruled with impunity. It wasn’t law at all.

Therein lies the dilemma faced by Najib. Rosmah Mansor, the wife, likewise expressed loss of faith in the justice system on Najib’s plight in jail!

The justice system, by its very nature, may have ossified since the days of former dictatorial Prime Minister Mahathir Mohamad who pushed for codification of law. He wanted no interpretation by the court of the intentions of Parliament and the framers of the Constitution. — newmediahit

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.

Editor’s Note: The views expressed in this article are that of the writer and do not necessarily reflect the views of the management of newmediahit.com.