Strengths and weaknesses of a new 'perfect case'

Prime Minister Dr Mahathir Mohamad once affirmed that as a medical doctor, when he sees gangrene, he is trained to amputate the affected anatomy and ask the question(s) later. In other words, in any medical emergency, be decisive.

Why is this the case? It is more important to save the life of the patient than to waffle with indecision.

But with regard to the grand haul of hundreds of millions of ringgit in a myriad of forms, invariably cash, jewellery, gold bullions, expensive watches and other precious gems from the multiple residences of former prime minister Najib Razak, one wonders why the perpetrators have not been arrested.

Putting Najib and Rosmah Mansor on house arrest, indeed, being blacklisted from leaving Malaysia, are not the same as outright arrests of course. Malaysian are enraged by the massive haul and demand the law be applied to them as soon as possible.

Yet, Mahathir, ostensibly on the advice of attorney-general Tommy Thomas, still believes that a "perfect case," needs to be built against the first couple.

Rightfully, Mahathir wants them to face the full music of the law. No quarter must be given to the duo and their accomplices (ie Jho Low and gang) to get off on technicalities.

To be sure, neither Mahathir nor the whole of Malaysia want them to go scot-free on technicalities too. Indeed, there appears to be a few, and Najib seems to be hinting that his entire defence is built not merely on sheer denial (of the haul) but the sources of the gifts.

First, Najib claims that his son-in-law in Kazakhstan is a "man of some means". In other words, he is capable of buying several Hermes or Bijan handbags at the go and giving them to the wife Rosmah. And, after several years the gifts from him piled up, as did the gifts from some 41 businessmen who have been asked to account for these items.

And if all these are "gifts" from close kins, such as from the son-in-law to the mother-in-law, the Malaysian legal system probably cannot touch them. Since there is no regulation that says the son-in-law cannot provide the family with lavish gifts. Thus, it makes sense to exercise caution.

But wealth from personal and extended family lack jus standi (legal ground) in the court of laws, too, unless the legal system itself is corrupt. Here Malaysia needs to learn from other legal systems, not merely English ones. And granted the fact that Pakatan Harapan does have a majority in the Parliament, silly excuses from Najib, with the claim to legal immunity both for him and his family, must be stopped dead in its track.

Barring such a move, Malaysia will look like a narco-state, like Colombia at one stage. When faced with the charges of being the mastermind of drug-related activities, Pablo Escobar got himself elected into the Congress of Columbia - invariably through money politics - to enjoy blanket immunity. Eventually, he was hunted down, and killed, for various crimes related to terrorism, including the bombing of a Columbian civilian airplane in midair.

Indeed, parliamentary immunity in Turkey was no obstacle once President Erdogan decided he wanted to crush his political opponents who were members of the Fethullah Gullen Terror Organisation (Feto), which was responsible for the coup of July 16, 2016.

But closer to home, Malaysia has been how other corrupt politicians were brought to book. Park Geun Hye, the only daughter of the late Park Chung Hee in South Korea, was indicted. She is also a woman of means. Her presidential immunity did not and could not save her.

Across the Pacific, President Donald Trump is a man of means too. He has hinted that he can even pardon himself if brought to bear the full consequences of the law. Yet, the Trump Foundation was charged in a New York court recently for various tax evasions provisions. Thus what are the lessons here?

In European Union, there are efforts to put a check to legal and political immunity across the board to prevent wide-scale corruption. While the European Union is generally wary that the removal of political and legal immunity may lead to a whiplash effect that can undermine the institutions of democracy, they seem to agree that blind provision of immunity is now a blight on the democracy.

Enough to establish probable cause of guilt

Invariably, in any legal prosecution, it is enough to establish probable cause of guilt - and not be pre-empted by claim of immunity, or, a seemingly perfect alibi. In this sense, hauling the political secretaries and aides of Najib and Rosmah is the right legal move.

Their confessions will neuter all the counter-claims of Najib and Rosmah, since they as the first couple have had the habit of claiming that they were not aware of what the board members or underlings were doing. If these political secretaries are taken into custody, the evidence will mount.

Barring such a step, then the legal parameters of the office of Tommy Thomas are clearly lacking. When the Parliament reconvenes on July 16, Malaysia has to debate on the issue of how to retrospectively remove the immunity of other politicians in the past, without which Malaysia would have to restore its relationship with the Privy Council in England to get an external opinion.

Secondly, Najib has variously claimed that the haul also came from jewellers who merely showed the items to the wife. This is patently self-incriminating. If what Najib says it true, why are the jewellery not in neat, separate boxes? Rather, they appeared in bundles. Not boxes. Wouldn't the jewellers not be keen on getting them back in perfect conditions if the sales did not go through?

Thirdly, Najib also claimed that the cash discovered in his various residences were meant for the May 9 general election. Assuming this is the case, then why were there gold bullions and gold bars and thousands of precious gems too?

Was he implying that Malaysian election operates on barter trade? One vote for me, and one diamond necklace for you. Two votes for me, more gem studded watches for you, which Najib claims not to wear anyway.

Fourthly, if the cash discovered after May 9 came in stacks, and remained in stacks when taken away, wasn't this a probable cause to swing the election post the outcome of the 14th general election?

To be sure, there is only a perfect time to issue a warrant of arrest for a not perfect case. The latter cannot be found because the Malaysian legal systems have no accountability, especially on the politicians.

Asset declarations of the politicians, while useful, are not connected to electoral campaign laws. Politicians seem to enjoy the immunity of funding their campaign in any which way. Even a fugitive on the run, such as Jamal Yunus, can compete for the chair of Umno Youth!

The lesson here is immunity and spurious claims of gifts and ownership cannot prevent the current crop of lawmakers in Pakatan Harapan to bring Najib Razak and his ilk to book. A lot depends also on political courage and the will to hold a thorough and strong debate in the upcoming Parliament.

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PHAR KIM BENG is a Harvard/Cambridge Commonwealth Fellow, a former Monbusho scholar at the University of Tokyo and visiting scholar at Waseda University. -Mkini