‘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, and by a 6 to 1 majority 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 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.