When Did Dato Seri Najib Razak Exhaust All Avenues of Appeal?

In August 2022, the Federal Court upheld Dato Seri Najib bin Tun Razak (“DSNR“)’s conviction and sentence (“the August 2022 Decision”).[1]

DSNR then, in September 2022, filed a motion to review the August 2022 Decision (“Motion”)[2] pursuant to Rule 137 of the Rules of the Federal Court 1995.

The Federal Court recently dismissed the Motion in a split 4-1 decision (“the March 2023 Decision”).[3]

Ong Lam Kiat Vernon FCJ, Rhodzariah binti Bujang FCJ, Nordin bin Hassan FCJ, and Abu Bakar bin Jais JCA[4] formed the majority which dismissed the Motion.[5]

Abdul Rahman bin Sebli CJSS was the sole dissenting judge.[6]

In a press conference regarding the March 2023 Decision, Datuk V Sithambaram, the ad hoc prosecutor for DSNR’s SRC International case,[7] was quoted as saying inter alia that DSNR has “exhausted all avenues of appeals.”[8]

It is submitted that DSNR exhausted all avenues of appeal back in August 2022 and not in March 2023.

It is trite law that:

(a) the Motion involves an exercise of the Federal Court’s inherent power;[9]

(b) the Motion is not intended to review the merits of the August 2022 Decision;[10] and

(c) the Motion is not intended to operate as another tier of appeal.[11]

This would mean that the appellate process for DSNR’s matter concluded in August 2022 with the August 2022 Decision.

DSNR’s matter originated in the High Court[12] and DSNR subsequently appealed to the Court of Appeal[13] and then to the Federal Court.[14]

The final outcome was the August 2022 Decision.

Thus, the August 2022 Decision marks DSNR’s exhaustion of all avenues of appeal.

The March 2023 Decision, however, practically and realistically, marks DSNR’s exhaustion of all local judicial avenues/routes.[15]


Najib v PP & Sub Judice in Malaysia

The issue of sub judice arose in July 2018 as a result of a gag order[1] applied for by Dato’ Sri Najib Razak (“DSNR”) who had been charged in the High Court with the commission of various offences including money-laundering and corruption.

A month later, Tan Sri Tommy Thomas, the then Attorney General had said:

“Bear in mind we do not have a jury. Again you know, members of the Bar know my position for years. I have never accepted the principle of ‘sub judice’. The principle of ‘sub judice’ does not exist in Malaysia because juries don’t exist.”[2]

During the hearing of the gag order application, the prosecution had submitted that the rule of sub judice would be inapplicable in the instant case for the reason that the trial will be presided by a professional judge sitting alone in the absence of jury trials in this country.[3]

After having heard both parties, Justice Mohd Nazlan Mohd Ghazali (“Nazlan J”) dismissed the gag order application[4] for various reasons. In his written grounds, on the issue of sub judice, Nazlan J had stated inter alia:

“[44] One cannot disregard the risk of prejudice that could potentially be brought about by pre-trial publicity. To start with however, it is not disputed that it is generally considered improper for publications be made in respect of on-going court cases which are pending judicial determination. As stated earlier, sub judice is part of the law of contempt, which in turn is especially concerned with interference with the due administration of justice and the legal process which invariably extends to the right of an accused to a fair trial.

[45] The rule on sub judice therefore seeks to safeguard the sanctity of court proceedings and ensure a fair trial to an accused in a criminal trial. It is rudimentary that decisions on issues of fact and law should be immune from every irrelevant and extraneous consideration. Decisions should be on the basis of evidence produced in court, and nothing else.

[46] As such, publications and discussions cannot extend to pre-judging cases and encroaching into how certain issues already pending before the court ought to be addressed or decided by the court because that would prejudice the outcome of the proceedings and may constitute criminal contempt in the sense of such statements and publications presenting a real and substantial risk of interference with the legal process and the due administration of justice.

[47] A review of the relevant jurisprudence and literature suggests that the restrictions associated with the concept of sub judice are designed to deal with three not unrelated key considerations. First, to prevent persons involved in the proceedings such as witnesses and jurors from being influenced by the prejudicial publication; secondly to avoid prejudgment of court decisions; and thirdly, to stop others from usurping the judicial functions of the courts.

[69]  I should add for emphasis that jury trials have also been abolished for criminal cases in this country. I would not go so far as saying that sub judice has no application in Malaysia. I think that is quite misconceived. However, the absence of jury trials does principally mean that the scope for the application of the sub judice rule is decidedly more circumscribed in the Malaysian justice system.”[5] (emphasis mine)

On appeal, the Court of Appeal dismissed the appeal and affirmed Nazlan J’s decision.[6] On the issue of sub judice, Zabariah Yusof JCA (later FCJ) remarked that the Court of Appeal was “…  in agreement with the learned trial judge that the sub judice rule applies in this country despite the absence of jury trials nowadays.”[7]

DSNR subsequently appealed to the Federal Court. A seven-judge bench unanimously dismissed the appeal and affirmed the decision of the Court of Appeal.[8]

The Federal Court, in its written grounds, appeared to acknowledge the existence and application of the principle of sub judice in Malaysia:

“Would the refusal of the pre-emptive gag order result in the deprivation of the appellant’s right to fair trial? We think not. In the circumstances he still has recourse to the laws of defamation. It is also open for him to bring committal proceedings for contempt of court in the event any party offends the rule against sub judice. Indeed the courts are well-equipped to safeguard the appellant’s right to a fair trial even without resort to the grant of a pre-emptive gag order.”[9] (emphasis mine)

In light of the above, it appears that the principle of sub judice continues to apply in Malaysia albeit with a more circumscribed scope of application. This will be the position until and unless the matter is revisited by a subsequent decision of the Federal Court.


Sedition Act: What The People Want

In 2012, our Prime Minister openly vowed that the Sedition Act 1948 would be repealed and be replaced by a National Harmony Act. In London last year, he renewed his pledge to abrogate the Sedition Act

To the surprise of many (including MIC’s deputy chief), Datuk Seri Najib Razak decided that it mattered more to please his fellow party members and regain their support, than to be a man of his word and honor his promise.

In UMNO’s recently concluded annual general meeting, Datuk Seri Najib announced that the Sedition Act 1948 is here to stay and will receive further strengthening (as if the Act is not oppressive enough at the moment)

We now know that maintaining the Sedition Act is what UMNO, its members and several other BN component parties want. But more importantly, is it what the electorate wants? The only reason the Government is in power is because of the mandate given by the people. Never forget that political sovereignity lies with the electorate!

So how do we know what the people want? One of the more effective ways would be by engaging in some form of direct democracy. It is not something new and has proven to be a good barometer of the public’s opinion

Alex Salmond, former leader of the Scottish National Party (SNP) wanted Scotland to exit the United Kingdom and go solo despite being a part of Great Britain since 1707. As SNP advocates Scottish independence, it is safe to assume that all of Salmond’s party members would have wanted the same for Scotland

The question is, did Alex Salmond and the SNP decide amongst themselves whether to leave the union on behalf of the people of Scotland, just because they were democratically elected? No!

What happened is that Alex Salmond and co got the UK Government, led by Prime Minister David Cameron, to allow Scotland to conduct a referendum regarding its future in the UK (see the 2012 Edinburgh Agreement)

The decision to leave the United Kingdom would have had grave repercussions, thus it was only logical that the people should be consulted. What better way to obtain the public’s views than through a referendum?

The Scottish Parliament then passed the Scottish Independence Referendum Act 2013 and the Scottish Independence Referedum (Franchise) Act 2013 in order for the referendum to take place

The 2014 Scottish Independence Referendum showed the entire world that the majority (55.3%) of people who voted wanted Scotland to remain in the United Kingdom. Why can’t we have a referendum regarding the preservation/repeal of the 1948 Sedition Act?

Some of you may be wondering, “but going independent is not the same as maintaining the Sedition Act!” That’s true to a certain extent. However, once you see the bigger picture, you’ll see that both have the ability to impact the lives of the people

It has been established that it may be seditious to give a legal opinion (see Karpal Singh’s case), or to state the law as it is (see Azmi Sharom’s case), or to ‘like’ a Facebook page of your choice (see case of Form Five student). Still disagree with me?

Furthermore, less than a month ago, the state of Massachusetts conducted a referendum regarding the abolition of the Massachusetts 2011 casino gambling law. The result: 60% of voters agreed to preserve the statute, and the legislation remains valid till today. If a state in the United States can do so, why can’t we learn from their example?

After all, some who voted for Barisan Nasional may be against the Sedition Act because of its possible misuse due the absence of requisite to prove the accused’s intention (contrary to criminal law principles)

Perhaps many who voted for Pakatan Rakyat are against the Sedition Act because of the wide definition of ‘seditious tendency’ which leaves it open to potential abuse

Moreover, fence sitters could be sick and tired of the Sedition Act appearing to be a tool for the Government to silence dissent and Opposition leaders. There are so many uncertainties which can be resolved by a simple referendum!

Anyhow, by virtue of going back on his promise, Datuk Seri Najib has created a very dangerous precedent in which the very promises/pledges that come out of his mouth are subject to sudden change. The only silver lining is that his flip-flop attitude may lead him to someday make a u-turn regarding his decision to preserve the Act!

*The Malay Mail Online, Malaysiakini, and Free Malaysia Today featured this article