Saturday, May 28, 2022

If Nazlan couldn't explained for money in account ...

On May 21st recently, MACC announced they have submitted their Investigation Paper on Justice Dato Nazlan Ghazali to the Attorney General. 

Two days earlier, one of the recently vocal five former Bar Council Presidents defending Nazlan, namely Dato Mah Weng Kwai demanded MACC to reveal their investigation. 

It is a strange request. 

As a former Court of Appeal judge and protege to Dato Eusoff Chin of the infamous VK Lingam tape judicial scandal, Mah knows well that MACC could not reveal their investigation to the public. It is only for the purview of the Attorney General. 

Unlike after GE14, there is more confidence that MACC's IP represent the investigation body's own probe. 

MACC today is not led by a PH-appointed politician. Dato Seri Gopal Sri Ram does not have an office there as rumoured when PH new government was then in a hurry to pin charges against Najib and Rosmah.  

Mah's request indicate he is aware the investigation Bar tried to obstruct went ahead despite Ambiga-led public pressure to protect uncle Sri Ram from having his cover blown. 

And, Mah's flip flop could also indicate he sensed there is justified concern against Nazlan.  

At the Bar Council EGM

5 minutes before EGM commenced 

It proves there is no need for prior Tribunal to be held or Chief Justice direction for investigation on criminal offenses committed by judges to be investigated. 

More so, the court has no capability and capacity to undertake investigation themselves to support any decision to be taken.  

This was pointed out from the floor at the Bar EGM yesterday that police cannot wait for CJ decision before a judge who hypothetically committed murder to be arrested. 

The media did not report, but lawyers in attendance informed that all resolutions tabled at the insufficient quorum EGM were rejected except to hold the peaceful walk. There was no resolution passed to protest against judicial interference or intimidation. So the lawyers can jalan jalan over nothing.  

In the first place, former CJ Tan Sri Richard Malanjum was not the first Malaysian to be appointed to the UN's ombudsmen to deserve special honour from the Bar. 

Ambiga & Co. tried to shed a good light on Malanjum before for an impending national embarassment on him for assigning Nazlan the big SRC case as his first ever criminal case.         

Nazlan conflicted and compromised?

There is strong and widespread discussion and view within the judicial and legal community that Nazlan was conflicted and should have recused himself from the SRC case. 

He was Maybank's General Counsel when they recommended for the establishment of SRC and approved loan for 1MDB to takeover an IPP. 

Defender of Nazlan argued he may not be directly involved. Maybank do thousands of proposals and it is beyond the legal department to go through each and every. 

What if the e-mail Raja Petra claimed to and from Nazlan turned out true?

Bear in mind that the time between RPK's revelation to MACC's submission of IP to AGC is a short  one month. It could be an open and shut case similar to their short investigation of Syed Saddiq. 

If MACC provided insufficient evidence, AGC would have already rejected the IP and request further investigation, argued FBer Syed Agil. While Najib supporter Lim Sian See viewed that there is a basis for the IP. AGC have not classified the probe as No Further Action (NFA). 

LSS is more interested in the email as proof of Nazlan's direct involvement. If there is, Tan Sri Idrus Harun would then be obliged to request for a mistrial on SRC. 

There are reasons to believe Idrus was never convinced the investigations on SRC and 1MDB were completed, evidence sufficient to charge (with too many main culprits went missing), and agreed SRC is a mistrial. 

Should it be a mistrial, the public outcry would be redirected from their anger towards guilty Najib to the shaddy work of law enforcement, AGC and judiciary. 

As one opposition politician viewed, there will be a need for a major reset of the whole Malaysian justice system. Idrus is likely holding out for more convincing and indisputable evidence before releasing the bomb. 

In the meanwhile, the wind is whispering rumours that Nazlan could not explain for the 11 transactions amounting to RM1 million banked into his account and part of the RM2 million he received mentioned by RPK.

Could it be similar to Jho Loh's alleged bribe to Zeti, Nor Mohamed Yakcop and 1MDB officials for mutual benefit?

RPK also revealed there is major error in the designed charge. Money trail on SRC did not come from 1MDB but loan raised by Putra Perdana. 

Najib deserve to be acquited, but it is believed he prefer a retrial to clear his name.       

Cartel of senior lawyers and judges?

There is a conspiracy theory suspecting SRC and 1MDB case was designed and fixed from the preparation of the IP, removal of AG and Chief Justice, appointment of new AG, CJ and presiding judges, DPP's charge and case presented to court, and down to Nazlan's judgement.  

The hints and indications are everywhere, but the proofs will need to be substantiated with investigation by proper authorities. 

Yesterday, RPK latest video upload made a startling revelation of rampant practises of case fixing and judge fixing in Malaysia. Without holding back, he outrightly pointed his accusation at Sri Ram and VK Linggam.   

RPK detailed his allegations in the hard hitting posting entitled Gopal Sri Ram: Putting the lunatic in charge of running the asylum

It looks to be RPK's old score with Mahathir. Nevertheless, such happening is not the first heard. Accused, lawyers, and judges have long shared similar experiences and down to naming names. 

Is it possible more such judicial scandals will be coming out soon?

Current CJ, Tengku Maimoon must be feeling the heat for recently being defensive of the open criticisms made against judges. It is obvious she was referring to RPK's revelation made against Nazlan. 

It has never happened before, but now public via social media are openly questioning CJ for biasness and being over protective of judges. Privately several lawyers expressed the opinion that Tengku Maimoon is prejudiced and not qualified to preside the appeal of SRC. 

In a strange deviation from the past, Bar is supporting Tengku Maimoon using the politically motivated excuse to defend judiciary against alleged interference and allegation. 

Bar is historically anti-establishment and usually attack and criticise the judiciary. They could be motivated by her leaning for basic structure doctrine as practised in India which Bar activists have long been fighting for.

However, Bar's attitude is not strange to a group of young lawyers. In a private conversation before Covid lockdown, they shared their view that Bar is not a professional body dedicated to the legal profession. 

The politically inclined accused Bar as an opposition tool. On the contrary, the young lawyers described Bar as a cartel of senior lawyers having monopoly over the big ticket legal work. 

They believed those dominating Bar are colluding with certain judges at the Court of Appeal and Federal Court level. Consequently, It Bar's reaction indicate the cartel's bread and butter is under threat by RPK's revelation. 

A source who lives and breathes in court rooms revealed few of the vocal five former Bar Presidents are linked to certain judges. No names will be shared for it is libelous.            

 Judiciary intimidated?

The hypocrasy behind the Bar, CJ and certain legal personalities' vocal defense of judiciary have been widely revealed, highlighted and argued on social media. 

It is the response of former CJ, Tun Hamid Mohamed that knocked the issue right on the nail. He wrote in his personal website, reproduced below:

Judiciary Intimidated: The Other View

Tun Abdul Hamid Mohamad

May 7, 2022

Since Raja Petra published his article “Shocking Revelation: Najib’s Trial Judge Nazlan’s Conflict-of-Interest Exposed” on 14th March 2022 in his blog, Malaysia Today, we only read a one-sided view on the issue, be it from the press release by the Chief Registrar, the Bar Council, Chairman and Deputy Chairman of DAP, the Chief Justice, The Edge Malaysia or Dr. Shad Saleem Faruqi.

In this article, I am giving the opposite view with the sole purpose of giving the public arguments on both sides so that they are in a better position to make up their mind on the issue. I am not saying I am right and they are wrong, nor Raja Petra is right and Judge Mohd Nazlan is wrong, or otherwise.

I refer to the statement by the Bar Council and article in The Edge Malaysia. It is said that Raja Petra and politicians especially Najib’s supporters are intimidating the Judiciary. Whether that is true or not, can it not be equally argued that they too are intimidating the MACC from doing its duties? 

They seem to forget that it was the MACC that investigated Najib leading to his conviction. Now, just because an allegation is made against the judge who had convicted Najib, which conviction they are afraid of being set aside, they jumped to his defence and cast doubts on the credibility of the MACC.

The Bar Council demands equivalent investigations to be carried out by the authorities on the police report lodged by Judge Mohd Nazlan; that there should be no double standards in approaching the matter; that the MACC probe violated the doctrine of separation of powers; that it undermined the judiciary’s independence; that it is unconstitutional and that it should be dealt with under Art. 125 of the Constitution.

Question: Had Judge Mohd Nazlan acquitted Najib would the Bar Council issue a similar statement?

It goes without saying that both Judge Mohd Nazlan’s police report and the report made against Judge Mohd Nazlan must be given equivalent investigations and I am sure they are being given.

But, by demanding “equivalent investigations” on Judge Mohd Nazlan’s report but trying to prevent investigation to be carried out on the report against the Judge, is the Bar Council not practicing double standard?

I received a number of WhatsApp and email messages, all from non-lawyers asking the same question: Is it against the doctrine of separation of powers for MACC to investigate a judge? It shows that even non-lawyers found the opinion of the Bar Council weird. No judge is above the law. Do I have to say more to the President of the Bar Council?

The Bar Council also says that the investigation undermines the judiciary’s independence. Madam President, independence of the judiciary does not include freedom to commit a crime and from being investigated for it.

The Bar Council also says that the investigation is unconstitutional. I would like to know under which provision of the Constitution it is unconstitutional? 

She referred to Art. 125. I urge her to read the article again. That article refers to situations when a Judge “ought to be removed on the ground of any breach of any provision of the code of ethics prescribed under Clause (3B) or on the ground of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office…” It does not cover commission of criminal offences. On the other hand, the MACC and the Police only have power to investigate criminal offences under their respective jurisdiction and not matters mentioned in Art. 125. (Even though Dr. Shad Saleem Faruqi tries to widen the coverage of Art 125, I do not think he can disagree with my last two sentences.)

I now refer to the two press releases by the Chief Registrar of the Federal Court. For whatever reasons, no such allegations had ever been made against any judge in the last fifty years. So the reaction of the Judiciary by issuing the press releases is also a first. I believe that the Chief Registrar would not have issued such statements unless instructed by the the Chief Justice.

Take note that the allegation is not a general allegation against the Judiciary. It is an allegation against a particular judge. Why should the Judiciary jump to the defence of the Judge?

Even though the allegation has been made by a blogger, if Najib’s counsel does not make an application for a retrial or does not use it as a ground of appeal in the Federal Court for the court to set aside the conviction and order a retrial, the matter ends there.

If Najib’s counsel chooses to do one of the two things earlier mentioned, if no statement had been issued by the Judiciary, even if the court were to dismiss the application or argument, no criticism on ground of bias could be levelled against the Judiciary.

On the other hand, where the statement has been issued, Najib’s counsel could argue that the court is bias as the Judiciary had issued a statement dismissing the allegation.

If and when the court dismisses the application or argument, it gives ground for detractors to say that the court is bias. Either way, why give Najib and his supporters a reason to attack the court’s decision?

On the issue of sub judice, is the statement by the Judiciary not sub judice? It should be more so, it coming from the Judiciary before the issue is decided upon, if raised.

We now come to the Chief Justice’s speech. I do not disagree with any part of it. I only question the timing of it.

Even though the Chief Justice did not mention it, anybody reading the speech knows that she was referring to the articles written by Raja Petra reported in Malaysia Today that Justice Mohd Nazlan is under investigation by the MACC.

I repeat what I had said regarding the effects of the two press releases issued by the Chief Registrar. Note that an important event had happened after the second press release i.e. the MACC confirmed that it was investigating the Judge.

Question: Is it not better to allow the SPRM to proceed and complete the investigation?

At the end of the investigation, the SPRM may announce either there is no evidence to support the allegation or that there is sufficient evidence to support a charge(s). If it is the former, the judge is cleared. Isn’t it better for the Judge that the clearance comes from SPRM after a thorough investigation and no such statement has been issued by the Judiciary? If it is the latter, then the file will be referred to the Public Prosecutor (Attorney General) to decide whether to charge the Judge or not. If, based on the evidence, the Public Prosecutor decides not to, the matter ends there. If he decides otherwise, the trial process begins.

Whether or not the Judge is cleared, no criticism could be levelled against the Chief Justice. She cannot be accused of trying to interfere with the investigation by the MACC.

Lest I am accused of being pro-Najib, let me make it clear that I do not care even if Najib has to spend the rest of his life in prison provided he gets a fair trial.

I do not say that Raja Petra’s allegation that Najib does not get a fair trial has merits or not. That is for the court to decide. I do not say that Raja Petra’s allegation and the reports against Judge Mohd Nazlan that he was involved in the 1MDB financial scandal is true or not, nor whether Judge Mohd Nazlan’s report against Raja Petra has merits or not. That will only be known after the MACC has completed its investigations on both the allegation and the reports. Hence, the MACC should be allowed to do its job without any or seemed interference by anyone.

(Note: As soon as I have finished writing this article, I received a message from a friend that two lawyers and an activist have filed a suit in the High Court seeking the following declarations:

criminal investigation bodies, including MACC are not entitled or are otherwise precluded from investigating serving judges of the superior courts (High Court, Court of Appeal, and Federal Court) unless they are suspended as required under the Federal Constitution;

the public prosecutor is not empowered to institute or conduct any proceedings for an offence against serving judges of the superior courts.

They have also sought a declaration that the investigation by MACC into Judge Nazlan was unconstitutional.

That news made me decide to publish this article.


More will unfold in the next few weeks and hopefully judiciary and AG will be pursuing for the truth and justice over legal precision. 

Since this issue has its own political implication, recent political development may have bearing on the outcome. RPK mentioned there is no way in hell the pro-Mahathir judges will be sympathetic and Najib and Rosmah will surely face imprisonment. 

It is interesting statement not because it is bold. Moreover it is a widely held view. RPK's view seemed to tally with his latest narrative to defend Tajuddin Rahman as saviour of Muafakat Nasional, unproven expose of Mohamed Hassan, and negative perception building against Zahid. 

It is only fair game. Nevertheless, agree to disagree.

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