Guest Editorial: Najib House Arrest Big Mess For Anwar Unity Government

Joe Fernandez

Najib House Arrest Big Mess For Anwar Unity Government . . . 

By Joe Fernandez

The court of law, at best, can adopt wide latitude in interpretation and advise Prime Minister Anwar Ibrahim on settling Agong Decree on house arrest for former Prime Minister Najib Tun Razak!

Commentary And Analysis . . . The prognosis may not be that good on the judicial review (JR) on house arrest filed by former Prime Minister Datuk Seri Najib Tun Razak. 

House arrest and home detention, although meaning the same thing, are not one and the same.

Home detention, based on procedures, are for those jailed for four years or less. That helps ease overcrowding in prisons. In Sabah, for example, most of those in prison are foreigners. These people should, in fact, serve sentence in home country.

Those under political detention and/or arbitrary detention, merit house arrest until the issue in conflict between parties in dispute can be resolved by Agong. The jury may no longer be out on whether Najib was under arbitrary detention. He was jailed, unrepresented, on 23 August 2022 for 12 years. That's violation of procedures, due process and the rule of law. There's UN Review pending, after the Christmas and New Year season, on Najib's arbitrary detention.

Since the matter in Malaysia involves the Agong although not named in the civil action, the court may well rule that it has no jurisdiction and strike out the JR, unless it does not rule but simply throws the ball back in the government's court. It would be a miracle. More on this Approach later.

The court of law was only about law. Decree based on Discretion, whether for Freedom or Pardon, isn't law. These are not matters for judicial consideration and resolution.

Prime Minister Datuk Seri Anwar Ibrahim risks mud on the face, if true, that he had Agong's Decree on house arrest with him, before leaving the "political hot potato" with Attorney General Tan Sri Ahmad Terrirudin Mohd Salleh. Even if the said Decree wasn't with the AG, he would still be Respondent in Najib's Application for Leave for Judicial Review and Application for Judicial Review (JR). 

The increased chatter in the political, diplomatic and legal grapevine on house arrest for Najib existed even before he filed the JR at the High Court on 1 April. Judge Datuk Amarjeet Singh, during case management in Chambers on 4 April, set 17 April for hearing the Application for Leave and JR Application. If not for Najib's lawyer Tan Sri Shafee Abdullah saying that he has "critical witness" on the house arrest, the judge may well have put on blinkers and denied the Leave Application. 

Najib . . . 

The purported mystery witness, reported by the media, cannot claim ownership of the supplementary Decree (Addendum), if any.

The Affidavit in Support (AiS) by the mystery witness can only be considered in-admissible hearsay. Admissible hearsay should be supported by corroborative proof, under the Evidence Act 1950, in the form of statement from the Istana. It should favour house arrest for Najib. 

Agong, Constitution or no Constitution, has sole prerogative and discretionary powers on Decree, whether for Freedom or Pardon.

In "law", six years house arrest can be considered "unprecedented". There's no basis. If it's about miscarriage of justice, Najib should have been released within two weeks of being jailed unrepresented on 23 August 2022.

However, Agong is Agong. He has discretion beyond discretion, being hereditary ruler, falling back on residual and reserve powers. The Perak case law 2009 refers.

Najib, based on his own words, may not know whether the Decree on House Arrest -- separate from the Pardon's Board letter on 29 January meet -- exists. It appears that the supplementary Decree was an afterthought by Agong on the same day that Najib received the Pardon's Board letter. 

House Arrest . . . 

It's not known whether the former Prime Minister will file Discovery Application (DA). Najib should cite special circumstances which will persuade the judge on the DA. If all goes well, the DA Application will be heard first and the JR stayed.

It was fatal flaw in law that Najib did not get the Decree on house arrest i.e. if indeed it exists. The story making the rounds was that two Umno ministers collected the Decree from the Agong, after reportedly prevailing on him, and gave it to the Prime Minister. It's surprising the Istana hasn't issued statement on the matter even after it became controversial.

Apparently, Umno was unhappy that the Pardon's Board letter mentioned no remission, and that Najib would be released on 23 August 2028, after the 12 year jail sentence had been halved. The RM210m fine was drastically reduced and now stands at RM50m. If Najib defaults on the fine, he risks serving an additional year. He would, in that case, be released on 23 August 2029. Jail sentences in Malaysia run concurrently. The 2029 date may have been error in reading by the Pardon's Board unless it had mentioned that additional jail would run concurrently.

England . . . 

In Malaysia, unlike in England for example, it's virtually impossible to win JR cases.

The court, in looking only at procedures, puts on blinkers and rules.

In England, even if the government complies with procedures, the court would look at procedural fairness and the merits of the case. It would adopt wide latitude in interpretation.

We can only fear for the worst on Najib's JR on house arrest.

It's unlikely that the court would advise the government to settle the house arrest matter out of court. There's some hope if the court can take this Approach as it did in the Jill Ireland case on Allah in Malay print used by Christian. 

If the government does not budge, the court can free Najib by looking at other aspects including the fact that he was jailed unrepresented on 23 August 2022. That would be judicial activism at its best in a country where the legal fraternity, court system, and judiciary belabour in the delusion that the letter of the law, by itself, can be passed off as law. 

It was Chief Justice Tun Richard Malanjum who disclosed during Farewell Address in 2019 that Malaysia, lacking in skills for law practice and skills for the court room, may not always be about the rule of law, the basis of the Constitution. 

Rule Of Law . . . 

In the rule of law, the manner in which the person was convicted comes first. Conviction follows if it has been perfected in law for perfection in law. Najib, for example, was jailed unrepresented on 23 August 2022. That's violation of court procedures, due process, and the rule of law. The UN Review on Najib, being allegedly detained arbitrarily, has been pending since after the Christmas and New Year holidays. 

If the nature of human relationship needs regulating, given issues in conflict between parties in dispute, it can be done by the rule of law. The court of public opinion, contrary to public perceptions, was about cases in the court of law and cases which should be there.

The court of law can bring closure. Closure will come when litigation ends.

Out of court settlement would be in line with the rule of law.

Other approaches like war, i.e. the continuation of politics by other means, end in stalemate as one side or both sides run out of weapons and men.

No war goes on forever.

All wars end, based on the rule of law, at the negotiation table.

The settlement will be recorded at the High Court.

There's flaw in the 23 August 2028 date if there's no remission.

The case can be made out that Najib should be released on 23 August this year if halving of the sentence comes with remission. He can be placed under immediate house arrest pending the release date. The Director General (DG) of Prisons' Department has Discretion. Home Minister Datuk Seri Saifuddin Nasution can only object at the risk of placing the unity government in grave peril.

Again, Najib's case can only be about house arrest from now until 23 August this year. In "law", house arrest for six years may be out of the question. House arrest for six years was also politically inexpedient. No government, Agong or no Agong, would ever allow it.

Najib's family can file habeas corpus, as advised by former judge Datuk Hamid Sultan Backer, based on DNA ruling by Judge Datuk Abdul Rahman Sebli. The same habeas corpus contents can be filed with the Conference of Rulers as Petition for Freedom.

Alternatively, Najib can reject the halving of the sentence since there's no remission in the Pardon's Board letter. Under the original 12 year sentence, there's remission, and he will be released on 23 August 2026, with or without Pardon, i.e. ironically two years before 23 August 2028.

Joe Fernandez

Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia 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.

Subscribe Below: