The Barisan Nasional’s Default Victory Of The Semenyih By-Election – Criminal Najib Given A Free Ride To Campaign

The Barisan Nasional’s Default Victory Of The Semenyih By-Election – Criminal Najib Given A Free Ride To Campaign

By Matthias Chang – Future-Fastforward

After the results of the By-Election were published, friends have asked me for my initial comments which I replied via whatsapp, deliberately leaving my comments on how the said By-Election was won by default by the Barisan Nasional. I was waiting to see whether anyone, especially members and supporters of Pakatan Harapan, would be able to analyse the main reasons for the horror of defeat which was staring right at their faces.

In fact the defeat of Pakatan Harapan was already apparent before the By-Election!

What am I referring to?

After the victory on May 9th, 2018 almost the entire country was waiting for criminal charges to be instituted against criminal Najib and his gang of Kleptocrats. The senior cadres were so terrified, that when they were charged for various offences, they were admitted to IJN, the country’s leading hospital for treatment of cardiac arrest etc.

Great efforts were made to ensure the timely arrest of the culprits. Within months criminal charges were instituted against Najib, Rosmah and the gang members who raped and plundered our country. Early trial dates were sought and the earliest trial date was granted for the SRC money-laundering case, fixed for 12th February, 2019.  Najib was charged inter-alia with three counts of criminal breach of trust and abuse of power involving RM42 Million from SRC International to his personal bank account.

Something strange happened. The case was postponed pending an appeal by Najib to the Court of Appeal on a settled legal issue (which would ultimately be referred to the Federal Court) and resulting in further delays!

A brief explanation is needed.

In layman’s language, serious criminal cases are invariably heard before the High Court, even if it was filed in the first instance at the Sessions Court. In the abovementioned case, the Attorney-General (AG) issued a certificate to transfer the case from the Sessions Court to the High Court.

The issue was whether the AG has the authority or legal right to issue such a certificate to transfer a criminal case to the High Court. It is settled law that the AG had no such authority or right to issue such a certificate.

The AG appeared before High Court judge Mohd Nazlan Mohd Ghazali, and applied to withdraw the certificate to transfer the seven charges against Najib in anticipation of the argument by Najib’s Counsel that the transfer was null and void and any trial conducted pursuant to the said transfer would be a nullity.

The fact that the AG cited the (i) Semenyih Jaya Sdn Bhd and (ii) Indira Gandhi A/P Muthu cases referred below as grounds for the withdrawal of the certificate is a tacit admission that the AG’s Certificate of Transfer from the Sessions Court to the High Court was invalid and or null and void.  

Najib’s counsel, Tan Sri Muhammad Shafee stated “I spent three sleepless nights to prepare my submission to raise a preliminary objection” – i.e. the certificate issued by AG was invalid. Additionally, the counsel added that he and his client were ready for the trial next week, 12th February, 2019.

The High Court Judge accepted the withdrawal of the certificate, in the exercise of his discretion under Section 417(2) of the Criminal Procedure Code to transfer the charges from the Sessions Court so that he could hear the cases.

Whereupon, Datuk Seri Najib Razak through his Counsel filed an application to set aside the High Court’s decision allowing the prosecution to withdraw the certificate to transfer charges against him in regard to the diversion of monies from SRC International Sdn Bhd to Najib’s personal bank account.

Najib’s counsel Tan Sri Muhammad Shafee also filed an application at the Court of Appeal to postpone the trial of the case which was set for Feb 12th, 2019. In the result, the Court of Appeal allowed the application for postponement pending the disposal of the Appeal on the High Court’s decision to allow the withdrawal of the AG’s certificate.

The timing of the withdrawal of the certificate by AG is most peculiar, a few days before the trial of a major case against Najib. It was indeed foreseeable that there would be an appeal to the Court of Appeal and thence to the Federal Court as no High Court would risk having the trial declared a mistrial by the Appellate courts.

The Federal Court has by two landmark cases explained the scope of a judge’s discretion and that the same cannot be usurped by anyone.

  • Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case (Federal Court – Zainun Ali FCJ) [2017] 3 MLJ 561

The judicial power of the court resided in the Judiciary and no other as was explicit in art 121(1) of the Constitution. In the superior courts, only judges appointed under art 122B of the Federal Constitution, and no other, could exercise decision-making powers. The discharge of judicial power by non-qualified persons (and not by judges or judicial officers) or non-judicial personages rendered the said exercise ultra vires art 121 of the Constitution.

  • Indira Gandhi A/P Muthu v Pengarah Jabatan Agama Islam Perak and @ Others, and 2 Other Appeals [2018] MYFC 3

The Federal Court held inter-alia:

The Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 56 has put beyond a shadow of doubt that judicial power is vested exclusively in the High Courts by virtue of Article 121(1). Judicial independence and the separation of powers are recognised as features in the basic structure of the Constitution. The inherent judicial power of the civil courts under Article 121(1) is inextricably intertwined with their constitutional role as a check and balance mechanism:

“[88] The Judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Concomitantly the concept of the independence of the Judiciary is the foundation of the principles of the separation of powers.

[89] This is essentially the basis upon which rests the edifice of judicial power.

[90] The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.

[91] The concepts above have been juxtaposed time and again in our judicial determination of issues in judicial reviews. Thus an effective check and balance mechanism is in place to ensure that the Executive and the Legislature act within their constitutional limits and that they uphold the rule of law. The Malaysian apex court had prescribed that the powers of the Executive and the Legislature are limited by the Constitution and that the judiciary acts as a bulwark of the Constitution in ensuring that the powers of the Executive and the Legislature are to be kept within their intended limit

Therefore, the AG cannot be said to be unaware of the two Federal Court decisions and should not issue the Certificate for Transfer, as the AG had no authority to do so. Given this glaring mistake, the AG ought to have withdrawn the Certificate at the earliest opportune time (months before the hearing) and not just before the commencement of the hearing, resulting in the postponement of the said trial fixed for 12th February, 2019 by the Court of Appeal.

It is beyond arguments by anyone, had the trial proceeded on the 12th February, 2019, Najib would be exposed by the evidence of prosecution witnesses of criminality (though the trial has not yet concluded) and the public would have a better understanding of the gravity of the offences he has been alleged to have committed. The rakyat would have taken a dim view of Najib and his entourage campaigning in the By-Election, supported by the hard-core followers of Hadi Awang and would not be misguided by their deviant propaganda.

The fact that there are so many Malay voters believing in the innocence of Najib in spite of the gravity of the charges and his betrayal of the Bumiputera community reflects the extent of the brainwashing by the deviant leaders’ propaganda. It matters not that FELDA and FELDA settlers’ livelihood have been jeopardised and our country is in debt to the tune of RM1 Trillion. A sinister myth was perpetuated – the Malay rights and privileges are being destroyed. More hideous is the propaganda that Islam is under attack by non-Muslims!

In the result, the real issues regarding the criminality of Najib’s regime are being diverted and or buried by the above scurrilous propaganda.

I am therefore of the view that the Semenyih By-Election was won by the Barisan Nasional by default, following the horrendous blunder as explained in the preceding paragraphs and the insidious propaganda.

This blunder was compounded by seven months of obscene political in-fighting by the leaders of Pakatan Harapan in their ugly pursuit of political and financial power. The people are pissed off with the constant refrain that political power is an entitlement and the transfer of power must be implemented as soon as possible for the country to move forward. But, the evidence suggest otherwise. Have we been shown the grand blueprint for the future of our country touted by such leaders? Sure, the cry of “Reformasi, Reformasi” is loud and clear, but it is devoid of substance. With a battle cry resounding for over 20 years, one would expect that a Grand Blueprint would be ready and implemented on the take- over of the BN government by the PH government.

Alas, it was pure fantasy as PH leaders confessed they were not even confident of victory. The leaders wanted a honeymoon period for self-indulgent escapades rather than running twice as fast to make up for lost time.

Go figure it out!