This article first appeared in Forum, The Edge Malaysia Weekly on May 13, 2024 - May 19, 2024

The Malaysian Bar’s bid to seek a judicial review of the Federal Territories Pardons Board’s decision to cut former prime minister Datuk Seri Najib Razak’s jail term and fine for his conviction in the SRC International case gives hope to the court of public opinion.

The grounds listed in the Malaysian Bar’s affidavit to support its bid for judicial review clearly sum up the extraordinary impact that the decision of the Pardons Board has had on the judiciary, the man in the street and ordinary prisoners waiting for clemency.

The brunt of the outcome is on the judiciary. The decision of the Pardons Board falls just short of making a mockery of the judiciary that had exhausted hundreds of hours and much money and time to restore some measure of respect to the country that was branded the centre of the biggest kleptocracy scandal in the world.

The trial went through the High Court, Court of Appeal and Federal Court. It was presided over by nine judges over four years. But all it took was a decision by a five-member panel of the Pardons Board to water down the sentence meted out to Najib and diminish the efforts of the judiciary.

Other than the judiciary, a group that is somewhat impacted by the decision of the Pardons Board comprises the thousands of prisoners waiting for clemency. The fast-tracking of Najib’s file to the Pardons Board has left a deep sense of disquiet over the favouritism accorded to the former prime minister because there are reportedly some 70,000 prisoners waiting for their appeals for clemency to be heard.

The norm is that a prisoner needs to finish at least one third of his jail term before his file goes up to the Pardons Board. In Najib’s case, he had served less than 18 months before he received his pardon. If the normal practice had been followed, this would have taken at least 48 months.

And in Najib’s case, the pardon goes against the convention where such clemency would be given to someone who has demonstrated that he is remorseful for his actions.

In Najib’s case, he has not said sorry.

But given that the former prime minister is facing three other criminal cases that are ongoing and a few civil suits as well, he would be shooting himself in the foot if he were to accept full responsibility for the 1Malaysia Development Bhd (1MDB) and SRC International scandals.

And finally, the decision of the Pardons Board would have badly shaken up the millions of Malaysians who would have followed the trial that began on April 3, 2019, and concluded with Najib being sentenced to 12 years’ jail and fined RM210 million on Aug 23, 2022.

Many may have followed the high-profile case because it is a prime example of what happens to a country’s coffers and credibility when there is a lack of governance and too much power is vested in one person.

Najib, together with fugitive Low Taek Jho, was at the centre of a scandal involving 1MDB from which more than US$4.5 billion was diverted, and SRC International from which RM3.6 billion was taken overseas and never recovered.

In a bid to stop all investigations against him, Najib even removed former Attorney General Tan Sri Abdul Gani Patail.

In 2015, Gani headed a high-powered four-member team that was investigating 1MDB and the depositing of money into Najib’s account. The formation of the task force was a low-key affair.

Najib replaced Gani around mid-2015 when the Attorney General’s Chambers was preparing criminal charges against the prime minister. Tan Sri Mohamed Apandi Ali, who replaced Gani, later cleared Najib of all wrongdoing.

With the Attorney General’s Chambers compromised, there was no way for criminal charges to be brought against those responsible for the mess at 1MDB. This led to a complete breakdown in the checks and balances between the executive, judiciary and legislature.

The US Department of Justice described the 1MDB fiasco as the biggest kleptocracy scandal in the world to date. Until now, there are several ongoing cases related to 1MDB in Malaysia and in other countries as well.

For all the damage done, shouldn’t those responsible pay the penalty?

So far, the government has repaid RM48.06 billion of 1MDB’s debts. There is still a RM5 billion bond that matures in 2039. In essence, the Malaysian taxpayer will continue to pay for the breakdown in governance and the mishandling of public funds in the 1MDB scandal.

A pardon for Najib is not conceivable to most people although the former prime minister had already sought clemency way back in September 2022, just two weeks after starting his jail term.

In December 2023, when rumours were rife that Najib would be given a pardon before the previous King ended his term in January 2024, it seemed imminent that he would get a pardon. The Pardons Board decided on Jan 29 that Najib’s jail term be cut by half and the fine reduced to RM50 million.

In the court of public opinion, the logic is simple. Everyone should be treated equally before the law, whether it is a high-profile personality or an ordinary person. They should go through the process and pay the price if found guilty so that the integrity of the judiciary is maintained and governance is in place.

An exception would set a precedent that would come back to haunt the present government led by Datuk Seri Anwar Ibrahim, who has made the “war against corruption” his political mantra.

There are still a few more high-profile cases pending in court, including one involving Anwar’s deputy, Datuk Seri Ahmad Zahid Hamidi.

The pardon and now the possibility of Najib serving the rest of his detention at home runs against the stand of the court of public opinion, especially when one has not said “sorry”.

Fortunately, the Malaysian Bar’s application for a judicial review of the pardon gives the silent majority some hope that the system may work after all.

M Shanmugam is a contributing editor at The Edge

Save by subscribing to us for your print and/or digital copy.

P/S: The Edge is also available on Apple's App Store and Android's Google Play.