Conspicuous errors of law, fact and reasoning- Najib’s case

Many Americans, including members of Congress, believe or act as if Roe v. Wade 1974 ( A woman’s right to abortion) a case recently displaced by a majority of the US Supreme Court in 2022 and the U.S. Constitution have equal authority.

They are wrong, both as to Roe’s place in American constitutional law and as to the duty of citizens and judges to follow it unquestioningly. This point is critical as it questions rightfully the mistaken belief by some lawyers and judges that precedent must be slavishly follwed without question. The law is more flexible than that.

Few decisions in the history of the Supreme Court of the US and the case of 1MDB (Najib’s case) in Malaysia have cried out so shrill for reversal and review of law and procedure on constitutional,  moral and legal grounds. And rarely has any decision been so fraught with conspicuous errors of law, fact and reasoning as was the majority opinion in Roe (and in Najib’s case in the Malaysian context).

This note is addressed to the judiciary, parliament in Malaysia and the Malaysian Bar who may think that the Najib matter (an abortion of the AG’s, the Judiciary’s and the Malaysian Bar’s own making) deserves a measure of deference as a landmark of constitutional law and procedure (notwithstanding its unconstitutionality, its unlawful and immoral outcome).

Legally speaking, Najib’s case like Roe is an abomination, and an embarrassment to lawyers, judges, the Agong and public officials who feel compelled to defend the decision and outcome in the courts of Malaysia.

THE COURT’S DECISION IN NAJIB’S CASE EXCEEDED ITS CONSTITUTIONAL AUTHORITY AND LIMITS.

Under the legal system established by the Malaysian Constitution, the power to make laws is vested in the legislature. It is not the role of the Supreme Court or Courts of Appeal to substitute the policy preferences of its members for those expressed in laws enacted by the people’s elected representatives, parliament.

The role of the judiciary in constitutional review is to determine if the law being challenged infringes on a constitutionally protected right.

To exemplify and stress the point” Justice O’Connor (US Supreme Court) reiterates this principle, quoting Chief Justice Warren Burger:

Irrespective of what we may believe is wise or prudent policy in this difficult area, “the Constitution does not constitute us as ‘Platonic Guardians’ nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, ‘wisdom,’ or ‘common sense.'”

IGNORANCE: A COMPANION OF MALAYSIA’S JUDGES AND ITS LAWYERS

The Chief Justice of Malaysia and her fellow judges sought to usurp the power, right and authority of the legislature by making laws for their own blinkered convenience by denying DS Najib a delay and adjournment in his case for appointing fresh counsel (un unfettered right of any defendant in any case, save in exceptional circumstances) and providing his responses in a case as complex as his was.

DS Najib’s circumstances in his requests for an extension of time to file his material by any reasonable standard did not fall under any of the exceptions the Chief justice used to deny his request.

In fact what the Chief justice used as an excuse to deny DS Najib his request for an extension of time relied on an old and outdate quote from William Ewart Gladstone a Prime Minister of Britain (between 1868 and 1894) “justice delayed is justice denied”.

This was the same Gladstone whose ideas of justice included owning African slaves as an ‘investment’ sent out to the new colonies.

Gladstone’s quote is an amorphous, ambiguous and imprecise maxim which cannot be defined or applied without a context. Who for instance does the justice and delay belong to? The prosecution? The judiciary or the defendant?

In the common law Westminster legal system, the benefit of all doubts must favour the defendant as against his accuser, in this case the prosecutor (and a biased judge).

To assert he was using the requested delay to attempt to frustrate an inevitable outcome in his cause (my words, their imputation) was both wrong and unconstitutional.

Delays and adjournments however inconvenient to the courts can and must be granted to an applicant (in this instance DS Najib) with good reason. And how is good reason decided? and who decides it? another independent judge of course.

Otherwise where the request is of a controversial and contestable character or nature, it should have been decided by an application addressed to the court by Najib’s lawyers (which they did not) before an independent judge, as a separate question of law to be argued on its merits before being decided. It is a matter which was not within the purview and powers of the judge deciding whether or not to grant to be arbitrarily dismissed.

The Malaysian Bar was represented in this dilemma in which it had a crucial role to play “without fear or favour” with a deafening silence.

Intimidated by its collective ignorance and inexperience, Malaysia’s lawyers members of the Bar, not one of who knows of or has used such an application to decide a separate contentious question in a trial, were willing to speak on an issue o the law. Instead they did what they did not do when Anwar was on trial in his Sodomy 1 and Sodomy 2 and that was to keep quiet, not interfere and or to join a lynch mob against a particular defendant.

Instead in its place were the vacuous comments by the Chief Justice, The Attorney General and the Prosecutor. Additionally and outrageously a cacophony of parliamentarians and members of the legal fraternity in Malaysia joined in the lynch mob with cries of guilty, guilty, guilty. ”Without fear or favour” was the Malaysian Bar’s response.

The courts reason for denying Najib’s requests firstly for a British QC to represent him was met with resistance by the Malaysian Bar whose incompetence is universally acknowledged by the outcomes of their more controversial cases are decided underlined by the way their legislation and judgments are written. And they accept it without question.

To celebrate and reinforce its lack of impartiality and it long history of politicization, Karen Cheah Yee Lynn president of the Malaysian Bar authored a desultory contumely of insults directed not at the source of the problem, the Chief Justice, the Attorney General but at DS Najib. Najib is the victim of a monumental blunder by the Malaysian justice system.

Whatever the outcomes against him, he was entitled to be heard before a properly constituted tribunal of fair minded judges and afforded a legal representative (s) of his choice. “Without fear or favour“. Embarrassments excepted.

DELAYS: A VIRTUE RATHER AND NOT A VICE- THE INNOCENCE PROJECT

A further point on why adjournments and delays are not necessarily vices at law but instead something that should be taken more seriously instead of applying the Chief Justice of Malaysia’s (And the Malaysian Bar’s) logic.

There is the very strong empirical evidence from many more mature and justice conscious jurisdictions where the benefit of delays in cases involving otherwise “sound” judgments and “evidence”. In these cases misguided and often politically sanctioned views has led to the perception of an overwhelming aura of guilt around many capital offence cases, and unjustly so.

THE INNOCENCE PROJECT

I speak of the USA where large numbers of condemned prisoners wait in death row for their day with the executioner, their cases and appeals delayed for decades by determined and dedicated lawyers who understand the law.

The US innocence project has successfully prosecuted the defence of many condemned prisoners condemned to death by “cogent and irrefutable” evidence through obtaining delays. 36 of these death row prisoners out of nearly 200 by an average of 15 years of delaying their executions, have been freed because of delays fought for and granted inspite of similar illogical jurisprudence now the preserve of the Malaysian legal system. “Time wasting” as Malaysia’s legal system calls it.  

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