In the spotlight: MACC has come under fire for its purported leaked investigations on the possible code of conduct breach by a judge in Najib’s SRC International case. – IZZRAFIQ ALIAS/The Star
THERE are two issues relating to Datuk Seri Najib Tun Razak’s case that have been hotly debated but really, they amount to nothing in the end. Everyone has an opinion and that’s good.
That includes the Malaysian Anti-Corruption Commission (MACC), which feels that there are grounds to believe that judge Datuk Mohd Nazlan Mohd Ghazali may have breached the code of conduct.
Mohd Nazlan, now a Court of Appeal judge, was the High Court judge who had convicted and sentenced Najib to 12 years’ jail and a RM210mil fine for misappropriating RM42mil of SRC International funds.
Najib’s legal team has claimed a conflict of interest due to Mohd Nazlan’s tenure as general counsel of Maybank Group in 2006, citing that Maybank Investment Bank Bhd was the body responsible for proposing the formation of SRC International.
So, MACC also has an opinion. That’s fine. But the MACC is merely an investigative authority. Its views and recommendations still need to be referred to the Attorney General.
The AG Chambers will then study any proposal before deciding if it wants to follow up with the case and take it to court. Ultimately, it’s the court of law that decides.
Just read the judgement on the SRC case, where five judges reviewed the judgement and evidence, and unanimously found nothing wrong with Nazlan’s decision.
It’s interesting to note that the MACC itself had pursued cases it felt strongly about winning, but subsequently lost some of them in court. It’s an all too familiar scene, where distinguished businessmen have been put through the ignominy of donning the orange get-up and being taken to court for remand, only to be set free later.
Likewise, it’s unfair to cast aspersions on what the Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Azalina Othman Said had revealed in the Dewan Rakyat.
She was queried by Tenggara MP Manndzri Nasib and Tasek Gelugor MP Wan Saiful Wan Jan about the purportedly leaked MACC investigations.
Certainly, she has a duty to respond to their questions. She explained that the MACC, in a letter dated Feb 21, had said that it submitted a report on Nazlan to the chief justice in connection with the breach of the Judges’ Code of Ethics 2009.
Azalina said she informed Dewan Rakyat that the matter was under the purview of the Chief Justice.
That looks like the end of it. But the grudge against her is that she had written a reply dated March 20, 2023, to Najib’s solicitors, Shafee and Co, purportedly confirming that Mohd Nazlan violated the Judges’ Code of Justice and had a conflict of interest.
Now, while Azalina isn’t an AG and merely a politician, the concern is that her views made as a Law Minister has serious repercussions. The reaction on social media has been hostile with some clearly making defamatory remarks about her. Some are quite distinctly unfair because they’ve not read her entire statement and have been quick to draw the gun on her simply because she’s from Umno.
Then, there’s the move by Najib’s lawyer Tan Sri Muhammad Shafee Abdullah, to use the Federal Court’s dissenting judgement, in refusing Najib’s bid to review the apex court’s ruling last year, to seek a royal pardon.
Surely, as a defence lawyer, Shafee will exploit every possible loophole and opportunity to get Najib out of jail. After all, that’s what he’s paid to do. Quite clearly, Najib has exhausted all his avenues and the possibility of him remaining in jail for a while is a reality he must be coming to terms with.
The dissenting view will be used by Shafee to justify that Najib has been denied the right to a fair trial, thus a royal pardon should be accorded.
When asked, Prime Minister Datuk Seri Anwar Ibrahim said he would be part of the Pardons Board panel to review Najib’s application for a royal pardon.
According to the Constitution, the Pardons Board comprises the Attorney General, the Chief Minister or Menteri Besar, or the Federal Territories Minister, and no more than three members appointed by the King.
As the Federal Territories Ministry has been placed under the Prime Minister’s Department, Anwar is now its de facto minister.
Still, many commentators seem to have jumped the gun and expressed fears that it would lead to a precedent where a dissenting judge’s decision would be a factor for a pardon.
However, let’s remain calm. Everyone knows that dissenting views among judges are common. There are thousands of such instances and that is why only the majority decision matters.
Everything is above board. The views of the judges, including the majority and minority, are displayed online for everyone to peruse.In this case, Chief Justice of Sabah and Sarawak Datuk Abdul Rahman Sebli said Najib ought to be acquitted and discharged of all criminal charges since an injustice has occurred.
The majority of the four other judges rejected Najib’s challenge and effectively endorsed the 2022 decision of the Federal Court panel chaired by Chief Justice Tun Tengku Maimun Tuan Mat.
Shafee has reportedly suggested that the judgements of the majority and minority will be presented to His Majesty, the Yang di-Pertuan Agong, for consideration to determine which was the “better judgement.”
Without saying as much, Shafee, as an experienced lawyer, knows he has reached the end of the line. The only option now is a royal pardon, and he must put up a convincing argument.
The current reign of His Majesty ends on Jan 30, 2024, and with Najib having served barely a year in prison, it doesn’t look possible, at least by convention, that the King would want to proceed with that decision to cap his legacy.
A pardon is usually granted to someone who has been in prison for a certain period, has expressed remorse, and has little reason to continue serving the conviction.
The Ruler would always seek the recommendations and views of the AG or the state legal adviser. It will be most unusual for the dissenting view of a panel of judges of the Federal Court to be a reason.
This is not just about Najib. It’s about not creating a precedent where a dissenting judgement, if accepted, could overturn the ruling of the majority. Or worse, set the motion for an immediate pardon. I wonder if the politicians supporting this move have given serious thought about what they are pursuing, the implications of it all.
It’s best that restraint is practised when commenting on SRC International issues, although there’s tremendous interest.
But the bottom line is that the MACC is not above the Federal Court.
