‘Judicial Review’ or Load of Baloney? Najib’s Latest Legal Antics Over SRC Conviction

Najib has embarked on a fresh attempt to contest his criminal conviction over the SRC case, despite already losing his final appeal in the apex Supreme Court in Malaysia.

He has lost at every stage in this case, and on every count relating to seven charges of theft and criminal breach of trust, with consistent and unanimous rulings against him by all the judges involved (a total of 9 of Malaysia’s top members of the judiciary).

Yet, he hopes to still overturn that verdict and avoid his jail sentence through a manoeuvre that prosecutors have previously described as being ‘without merit’, ‘wrong’ and ‘abusive’ for reasons that legal experts made clear during research by Sarawak Report.

There is a fundamental principle of finality in litigation which means that the third and last appeal before the Federal Court has always been held to be the absolute last recourse for any unsuccessful party – all the more so when the rulings have been unanimous through the entire process.

However, Najib’s gambit to prolong the process (and to be let out of jail in the process?) is through what being widely reported as a request for a ‘Judicial Review’, which will apparently be launched on 19th January.

In fact, this could not be the case because a judicial review relates to secondary legislation affecting civil disputes where the interpretation of the primary law enacted by parliament may be considered to have been defective.

Najib, by contrast has been convicted of a major crime about which there is no dispute in terms of the law. Pre-meditated grand theft is illegal as everyone knows.

What the ex-PM through his inventive lawyers is actually calling for, as legal experts have explained, is known as a ‘review application’, which is an extremely rare device to ensure there was no miscarriage of justice by the highest court. Fellow top judges are invited to check if their own Supreme Court colleagues did not somehow falter.

The Pinochet Case

To explain how rare the exception for such an application is, it helps to remember why the procedure was introduced for the first (and only) time in the British court in 1995. It was to deal with a major global scandal of the day.

A judge in the House of Lords (now the Supreme Court) had ruled in favour of a majority decision to concede an extradition request by Spain for General Pinochet, who had been detained in Britain after that country brought charges against him for alleged crimes against Spanish nationals under his dictatorship in Chile.

It was then exposed that the judge (who ruled in favour of the extradition request as part of a 3 to 2 majority) was married to a leading member of Amnesty International which had campaigned against Pinochet over these very same human rights violations. To meet the outcry the House of Lords agreed to create the new process of a ‘review application’ which Najib is relying upon now.

In the Pinochet case, a new panel of seven judges in the House of Lords reviewed the case and unanimously agreed that their colleague, Lord Hoffman, ought to have declared his connection to the case. They then reviewed the case.  However, by a 6 to 1 majority they merely confirmed the decision that Pinochet ought indeed be extradited to Spain.

So much for the review application as far as the outcome of the case was concerned. It is also worth noting that in the ensuing quarter century no other final ruling of the British Supreme Court has been re-visited in such a way.

The judiciary have instead consistently upheld the golden principle of finality of litigation, meaning the appeal process comes to an end with the third and final judgement of the Supreme Court.

However, the concept of the review application was also adopted by Malaysia (and other countries) in 1995 under the Rule 137 of the Malaysian Supreme Court. Unlike in Britain Malaysian legal experts say it has been used prolifically by local lawyers trying to get their clients off final decisions of the court. One senior KL lawyer told Sarawak Report:

“It is a silly and unmeritorious form of application. It has been resorted to some 200 times in Malaysia over the same period of time and has been successful in only about five cases. That gives you a sense of the probability that Najib will succeed, before you even consider how clear the conviction in his case was.”

Violation of Najib’s Rights?

So, on what grounds are Najib’s fluctuating team of legal advisors, known for their unrelenting antics, basing this application to the Supreme Court?

The claim appears to be that somehow Najib’s rights were infringed by the court itself when his case was failed to be argued at that final stage. Malaysians will recall that in August Najib, having sacked his original team of lawyers, hired new advocates who then asked for the entire court process to be delayed to give them what they regarded as sufficient time to argue his latest appeal.

The Supreme Court ruled that there should be no such adjournment and that Najib having appealed should meet the allotted time to produce his arguments. In response, Najib’s own team declined to press their argument before the court, which therefore ruled on the facts before them agreeing with the prior judgements which had been made by the lower courts.

Najib almost immediately brought back the lawyer he had himself ‘sacked’ to say that this was unfair and hence the request for a ‘review application’! Again, as one lawyer has observed “this was not a ‘miscarriage of justice’ it was self-inflicted by misbehaving lawyers whose actions were unprecedented and resulted in their client losing his case”.

The above behaviour was caused by a cynical attempt to postpone the final stage of the case to avoid the likely conviction by the federal judges and enactment of the jail sentence which then took place, says the same lawyer, who says that because the delay was rightly rejected does not mean that Najib’s rights were violated.

The entire episode raises concerns that are now circulating in KL that nonetheless this review application, which is even now being spoken of as if it were a ‘Judicial Review’ and therefore somehow a matter of merit, is part of a tacit plot to at least obtain Najib’s release from custody whilst the judicial process is strung yet even further by the antics of his outrageous lawyers.

This could only be done with the tacit agreement of the powers that be, the legal avenues having now been effectively expended and the likelihood of success so highly unlikely.

Hence, the dark talk of a ‘deal’ and of Najib’s freedom (and that of his fellow alleged political crooks) being ‘BN’s price’.  Such tactics present a challenge to the reforming credentials of the new government which has campaigned to end interference in the judicial process.  SARAWAK REPORT

Apex court to hear Najib’s bid to quash SRC trial conviction tomorrow

TOMORROW, the Federal Court is scheduled to hear Najib Razak’s application to review its previous ruling to uphold his conviction and 12 years’ jail sentence and fine for misappropriating RM42 million of SRC International Sdn Bhd funds.

The former prime minister is seeking to overturn the decision made by a five-member bench of the Federal Court, led by Chief Justice Tengku Maimun Tuan Mat, on August 23 last year or for his appeal to be reheard.

The earlier panel comprised then Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim (now Court of Appeal president) and Federal Court judges Mohamad Zabidin Mohd Diah (now Chief Judge of Malaya), Nallini Pathmanathan and Mary Lim Thiam Suan.

The new panel will hear Najib’s final attempt via court proceedings to set aside the ruling. The hearing is scheduled to commence at 9am. Najib, 69, is currently serving a 12-year jail term in Kajang prison.

Meanwhile, lawyer Mohamed Haniff Khatri Abdulla said Najib’s legal team will have to convince the new panel that the previous panel did not give a fair hearing in the case.

“If they can persuade the court on any issue that shows Najib did not receive a fair hearing at all, the court can overturn the previous Federal Court order. To set aside that order, the appeal has to be reheard because it has not been heard yet. The appeal will be fixed for rehearing before another panel.

“When the new panel hears the fresh appeal in the Federal Court, then they can decide the matter… if again Najib’s lawyers manage to convince the new panel that the whole conviction by the High Court and the maintaining of the conviction by the Appeals Court was also legally flawed then they can set aside the conviction,” he said.

However, Haniff said if Najib’s review application is rejected, then the matter will end as there are no more appeals from the review.

“That’s the end of the whole judicial proceedings for Najib in the SRC matter,” he said.

On August 23, Tengku Maimun, in dismissing Najib’s final appeal, had said that in the appeals where counsel is present in name and in person but persistently refuses to make any submission despite repeated calls from the court to do so, the court is empowered to proceed with the appeals according to section 92 of the Courts of the Judicature Act 1964.

Having said that, she said the bench proceeded to consider Najib’s appeals.

Meanwhile, lawyer Nizam Bashir said the Federal Court has the power to hear an application for review under rule 137 of the Rules of the Federal Court 1995.

“To succeed, keeping in mind that any exercise of this rule 137, jurisdiction would only be undertaken sparingly, and only in rare and exceptional circumstances to prevent injustice. The application itself must show that there is an injustice or an abuse of the process of the court,” he said.

The former Pekan MP has also filed a petition seeking a royal pardon for his conviction in the SRC International case.

Besides that, Najib, through Messrs Shafee & Co had on January 5  filed a petition before the United Nations Human Rights Council Working Group on Arbitrary Detention.

The petition was filed at the office of the High Commission of Geneva via digital submission. He is seeking a release or a retrial following the Federal Court appeal hearing, which he claimed had serious defects and was contrary to the rules of international justice. – Bernama