The Najib Addendum Too Little Knowledge Is A Dangerous Thing

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Reports in the media suggesting that the government is planning to gag the public from discussing Najib Razak’s attempt to be placed under house arrest have amused me.
Najib’s pardon has been hotly discussed by the Malaysian public and all around the world for almost a year now, ever since it emerged that the former king had commuted his jail sentence and substantially reduced his fine.
During that time, the question whether Al-Sultan Abdullah Sultan Ahmad Shah also decreed that Najib be placed under house arrest, as rumoured from the very beginning, was also the subject of feverish speculation.
That question appeared to have been answered at the beginning of this year when the Pahang palace confirmed the existence of the document, now famously known as the “addendum”, in a letter, a copy of which went viral on social media almost instantly.
Not having dealt with it properly at the outset, the government is in no position now to deny the addendum’s existence. It must now explain to the court why it can, cannot, should, should not, will or will not give effect to it, and for the court to rule on the case.
The government’s explanation must be grounded in law and premised on the need to preserve and protect the rule of law in this country, not political expediency, bias or sentiment. Here, the absence of sufficient knowledge within the Attorney-General’s Chambers would be a dangerous thing.
Meanwhile, every segment of the Malaysian public continues to voice its opinion on a host of questions: whether the monarch’s power to pardon is absolute; whether he is required to consult the pardons board before granting a pardon; whether he must take the advice of the pardons board; whether a pardon can be granted only if discussed and approved at a pardons board meeting; the rights and wrongs of the pardon granted to Najib; and the propriety of the provision for house arrest.
Opinions on those matters have already been voiced by people with some knowledge, and others with none at all. Here again, a little knowledge is a dangerous thing. Oftentimes, these opinions are inaccurate, biased or offered with a hidden agenda.
But not being proffered inside a courtroom, the government should not worry too much about them.
Outside court, a debater’s objective is simply to convince the audience that his point of view is correct and reasonable, even though it is not premised on the rule of law, ethics, or a full set of facts.
In modern language, the debater is an “influencer”, out to win over public opinion. The debater’s objective is to keep his audience engaged and excited by the unilateral justification he puts forward.
Those with vested interests should not seek to shut out such opinions purely on grounds that the issues have yet to be decided by the court (sub-judice) or because the arguments put forward do not conform to rules applicable inside a courtroom, such as hearsay.
For instance, in my view, much of the debate thus far has given scant regard to the absolute power to pardon vested in the king, and the non-justiciability of his decision, as confirmed on several occasions by the Federal Court. Those arguing otherwise in public forums tend not to disclose the number of hurdles one would have to jump to reverse these decisions.
Critics who claim there is no provision in our laws allowing for house arrest may also be overlooking Section 43(1) of the Prison Act 1995, which reads: “Subject to any regulations made by the minister, the commissioner general may, at any time if he thinks fit, release on licence and on such conditions as may be specified in the licence, a prisoner serving any term of imprisonment.”
To my mind, that provision suggests the government has the power to release any prisoner under licence, subject to certain formalities being satisfied.
It also means the law does not even require a convict to have obtained a royal pardon to be placed under “house arrest”. That term is simply a label used to identify one form of the licence the government may issue.
But inside the courtroom, the determination as to whether these views are correct depends on the submissions of the parties and, most importantly, the wisdom of the presiding judge.
That wisdom is premised on many factors, but is especially dependent on integrity, impartiality, an encyclopaedic knowledge of the law, and a deep desire to uphold the rule of law.
The judge must be able to block out white noises emanating from the political arena, the coffee shops, and the internet. The judge must also be equipped to ignore playacting by the parties and their legal representatives, and zero-in only on the law and evidence presented to him.
Anything short of that would be a disaster for the rule of law. For the legal system to function smoothly and expeditiously, having too little knowledge of the law will, without question, compromise the rule of law.
Under Article 123 of the Federal Constitution presently, judges of the High Court, Court of Appeal and Federal Court only require a basic law degree and 10 years’ experience as an advocate and solicitor or in the judicial service to qualify for appointment.
But modern day realities suggest that a basic degree to practice law is no longer sufficient.
Judges must also possess and constantly seek to acquire additional qualifications relevant to their judicial functions. They must be subjected to rigorous ongoing skills training, including in efficient case management. They must also be prepared to fix early hearing dates without getting bogged down by interlocutory applications.
In my book on the Federal Constitution, I commented that it is important to place more realistic qualifications for superior courts judges, as done in many other jurisdictions, since they are the supreme authority entrusted with the onerous duty of preserving, protecting and defending the constitution.
For them, having too little knowledge is a dangerous thing for the country.
The prime minister must deliver on his promise of judicial reforms by introducing changes to the law and the appointment processes of judges. These reforms must seek to tighten the appointment criteria so that only the best legal minds take their seats on the bench.
The time has come for a parliamentary select committee to be set up to oversee and examine the work processes of the Judicial Appointments Commission and the courts, and recommend changes and improvements with the ultimate goal of upholding the rule of law.
To my mind, the gag order is likely to be a toothless remedy.
For the rule of law to be upheld, we must rid the judicial and legal system of those with too little knowledge. - FMT
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

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