MALAYSIA A NATION WITHOUT A CONSTITUTION

In Malaysia’s parliament there are currently 5 standing committees (if my memory serves me well). these are;

  1. Selection committee
  2. Public accounts committee
  3. Standing Orders committee
  4. And privileges.

The above are also mirrored in the Dewan Negara or the Senate. The Parliamentary Select Committee on Integrity was set up in or around 2006.

However because of the dysfunction in government precipitated by the Regime Change initiatives of the US and its allies like the Malaysian Bar and Bersih, each seeking to infiltrate and control legitimately and democratically elected governments and turn them into client states, the entire parliamentary system of responsible government has fallen into a dung heap.

Fundamental to the causes of that fall has been a partially educated and completely polarized, politicized Bar in Malaysia. A bigger problem lies with the fast tracked law degrees handed out like confetti in Malaysia sans the critically important subjects of constitution law and jurisprudence.

In its place are short phrase regurgitated past exam papers on the subject designed not to imbue in students the knowledge required to practice in the subject, but a means of attaining a pass sufficient to satisfy a basic criteria to secure an LLB. And the fall in educational standards over the past decade or two has permeated the legal profession seeping into the judiciary eventually.

CROWN IMMUNITIES AND INDEMNTIES

IMMUNITIES (THE CROWN)

Immunities, or jurisdictional privileges, provide persons or groups of persons some degree of protection against civil or criminal rules that do not apply to all citizens. These provisions are in place to ensure the unimpeded performance of public functions and to avoid targeted prosecutions or political persecution.

However, immunities can also be abused by officials who use it as a shield from liability for criminal offences, including corruption. Good immunity regimes manage to balance the independence required for public officials to fulfil their mandate with the right accountability mechanisms to ensure that corruption is effectively sanctioned and prevented.

While most countries provide immunity protections for their public officials and members of parliament (as is the case of common law countries like the UK and Malaysia (as it is meant to do), each jurisdiction varies in the range of officials covered, scope of immunity and rules regulating the procedures for lifting immunities. International norms and standards have emerged in the last two decades with the aim of sharing best practices and closing loopholes that may encourage corrupt behaviour. Most notably, Article 30 of the United Nations Convention against Corruption provides a legal framework for the reduction of immunity protections.

THERE IS A PURPOSE FOR IMMUNITIES GIVEN TO MP’S JUDGES AND CIVIL SERVANTS

Immunity provisions help ensure a better separation of the judiciary, executive and legislative powers. They are in place to ensure the unimpeded performance of public functions and to avoid targeted judicial proceedings or political persecution.

One crucial distinction can be drawn between jurisdictions that provide immunity for public officials only for acts committed in the course of the performance of their function (functional immunity), and jurisdictions which extend immunity for any acts committed by public officials, whether they are directly related to their official function or not (absolute immunity) (UNODC 2017).

The United Nations Office on Drugs and Crime (UNODC) highlights ‘absolute immunity as the type most likely to be invoked in the context of criminal proceedings for corruption offences’ (UNODC 2017).

Among countries that provide their officials with functional immunity, two further categories can be observed: non-liability and inviolability. Non-liability is a type of functional immunity which provides legal protection for opinions and votes cast in parliament. Non-liability applies almost exclusively to MPs and does not cover other categories of public officials. It is otherwise known as narrow immunity.

The other type of functional immunity, known as inviolability, extends legal protection to public officials not only for opinions and votes cast, but also for any acts they perform in their function. As a wider provision, inviolability can be extended not just to MPs but also to heads of state, ministers and other public officials.

Historically, immunity protections have been given to members of parliaments to ensure that kings and courts would not intervene with the work of the elected representatives of the people. MPs, particularly those from the opposition parties, remain to this day susceptible to political persecution and legal harassment in many countries.

For this reason, immunity protections for MPs are still very common. The last systematic assessment of immunity legislation around the world, conducted by the World Bank in 2013, shows that 84 out of the 88 countries assessed provided some type of protection to MPs.

In Malaysia as it is in the UK immunities from prosecution for MP’s is implied in the constitution (under Crown immunities) if it is not expressly stated so.

HASTY CONVICTION OF NAJIB WITHOUT DUE PROCESS OR ADMISSABLE EVIDENCE- A POLTICAL RUSE

The haste with which to deny DS Najib the extension of time he sought to allow his new lawyers the time required to get acquainted with some very complex facts and the law in a complex and complicated matter was no extension by indulgence of the court that DS Najib sought.

His rights and the conduct of the case against him was fraught with a litany of circumstantial events, procedural breaches by the DPP and evidence which would not have stood scrutiny in any mature civilized jurisdiction except in Malaysia.

Let me explain the harshness with which I make reference to Malaysia and its legal system by referring to it by implication of my words as being less a less civilized and less mature a jurisdiction.

This narrative is distilled from a lengthy explanation of procedural rules and protocols in the PDRM by former serving police inspector of the PDRM now a senior legal practitioner in Malaysia ( a former member of Anwar Ibrahim’s team).

The lawyer expressed quiet outrage at the raid on the Penthouse at the Pavilion apartment block in 2020 under the supervision of Commissioner of police Amar Singh. That property was in the Pavilion in KL which DS Najib and his wife sometimes resided at.

Amar did not record nor did he or his men carry out the obligatory body camera filming of the event as is required under police protocols (for evidentiary purposes). Nor did the corrupted Amar Singh or his men categorize or properly catalogue what ‘evidence’ they had seized from the Pavilion residence that day of the raid.

Amar became immediately unavailable for comment or scrutiny and the evidence obtained was denied access to the defence when it should have been made available to them immediately. Reason? in the event the evidence was tampered with, become stale or destroyed before the defence had access to it in the form it was seized from the Pavilion the film recording of the event would corroborate and serve as an alibi to the event.

Amar disappeared because according to the former policeman turned lawyer, he failed to follow protocol by recording the raid and making the contents of the recording available to the defence even if via the courts immediately.

In fact the case against Najib was flawed conceptually as is the case against his wife Rosma. She was asked to prove she was not corrupt (when even a cursory reading of Malaysia’s legislation on corruption will show the reason why corruption is difficult to prove. The legislation on corruption is full of drafting holes in it for starters).

JUDICIAL MISCONDUCT-DENIAL OF NATURAL JUSTICE-BIAS AND BULLYING

Rosmah was asked to put in a defence when no reasoning in the courts decision to compel her to put in a defence was given to her defence. She was asked to provide a defence to a charge to which by law she had no obligation to say anything about to the court or to anyone else.

In a criminal case, the onus is on the prosecution to prove every element of its case against the defendant and not the other way around. The defendant is not obliged to say anything at all. The privilege (right to some) of silence belongs to the defendant (DPP vs Woolmington). Yet the judges comments as embarrassing as they are did not cause the Malaysian Bar to bat an eyelid. The only one standing with any credibility is lawyer acting for Rosma Mansor, Mr. Jagjit Singh and his fellow attorneys.

The case against DS Najib and his wife has been characterized by prosecution delays and a judiciary favourable to the prosecutions case.

Some examples of the favoritism shown by the prosecution and failures by DS Najib’s team to ameliorate and to mitigate the impacts of obstacles to their defence aided and abetted by the prosecution:

  • Failure to summon Jho Low
  • Failure to summon and extradite Jasmine Loo
  • Failure to seek orders to bring in as a late witness – even if on a separate application
  • Failure to recognize that the allegations against Najib was one involving several other witnesses in what is alleged to have been a conspiracy. Yet the burden of proof was placed on Najib instead of prosecution and the so called co conspirators.
  • Failure of extradite and compel Amar as a witness along with his fellow officers a part of the Pavilion raid
  • Failure to secure a delay pre- judgment based on Chief Justices and other panel of the bench for the comments they made on DS Najib’s application for a delay.
  • The delay itself should have been dealt with as a separate question to be tried on its merits.
  • Failure to compel parliament to indemnify DS Najib against the charges
  • Failure to compel parliament to review the matter, effectively charges against the Crown without a proper parliamentary committee investigation the facts and law relating to the charges proffered against DS Najib.

There remains an approach to the various legal professional bodies of the common law world to analyze and to comment independently on the two cases and the state of Malaysia’s judiciary and its legal fraternity.

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