What's next for Najib Razak? Controversies with the trial and the possibility of Royal Pardon
Updated: Mar 29
Aug. 23, 2022. Najib was sentenced to 12 years in jail by a high court in July 2020, after being found guilty of abuse of power, criminal breach of trust and money laundering for illegally receiving 42 million ringgit ($9.4 million) from SRC International, a former unit of 1MDB
*Disclaimer: this article does not aim to pass judgement on the actions of the convicted and instead merely aims to predict and discuss what the next moves of the former-Prime Minister might be from a legal standpoint
Malaysian Twitter feeds were abuzz on the morning of August 23rd 2022, when former Malaysian Prime Minister Dato Sri Najib Razak lost his final appeal at the Federal Court. Najib’s 12-year prison sentence and conviction from the High Court in 2020 was unanimously upheld by a 5-member panel, led by Chief Justice Maimun Tuan Mat. This was the last opportunity the politician had to have his conviction overturned and means that he will have to begin his term immediately — the first former PM in Malaysian history to be jailed. Najib who is currently 69 years old will be 81 years old on completion of his prison term.
The final appeal earlier today was held at the Palace of Justice in Putrajaya, it was reported that over 10 busses of Najib’s supporters showed up in solidarity of their leader. Chants of “Bossku” can be seen in various TikToks and news clips filmed outside the court.
Supporters of Najib chanting “Long live Bossku” outside the court (ref: Malaymail)
The past few years for the Dato Sri has not been typical of a convicted criminal, Najib has been out on bail for the entirety of the trial process for nearly 4 years. He has been seen frequently enjoying the comfort of his multimillion ringgit property equipped with a home gym, taken an acting role in a Malaysian TV show and even took part in a televised Prime Minister debate with opposition leader Anwar Ibrahim-all whilst being convicted on 7 counts of corruption.
Najib playing a cameo role in a Malaysian TV series- acting as his late father.
Despite today’s conviction, Najib’s support is still incredibly significant within Malaysia even amongst some minorities. This is because for 9 years prior to the 2018 General Election where he lost power, under the Najib administration Malaysia experienced steady, uninterrupted GDP growth and witnessed the longest bull-run in its stock exchange. Many Malaysians who currently tie their stomachs from rising inflation costs and covid-19 disruptions fondly remember Najib’s tenure as the time where the Malaysian ringgit was highest against the USD (RM3 = 1USD).
This was before the oil price crash in 2014 and the 2015 1Malaysia Development Berhad (1MDB) scandal when it was discovered that over RM2.67 billion ($700 million) was channelled into then Prime Minister Najib Razak’s personal accounts. It was estimated by the US Department of Justice that over $4.5 billion had been siphoned from the development fund to Najib and his associates. The resulting use of that money funded various luxuries such as £23 million townhouse in Belgravia (owned under the name of Najib’s stepson), £273 million of jewellery and handbags (including 14 diamond tiaras), and $60 million to finance the Leonardo Dicaprio movie — The Wolf of Wall Street.
Controversies With the Trial
While many are rejoicing the Federal Court’s decision to uphold Najib’s conviction, there are many who support Najib’s view that he was ‘unfairly treated’. Other than his millions of supporters from his time as the leader of UMNO, Anand Murgun of Firstpost.com also shares the view that Najib was deprived of fair judicial hearings.
Amongst the controversy is the appointing of Justice Datuk Mohd Nazlan Mohd Ghazali, who was a junior judge with no criminal case experience to hear the SRC case. This had been after multiple judges were either disallowed by the defense from adjudicating due to ties to UMNO or had recused themselves. The controversy lies where Justice Nazlan was allegedly involved in the very transactions within the case itself- and was the legal counsel at the very bank that propagated the creation of SRC international (a former unit of 1MDB).
Secondly, Najib’s counsel also raised the issue of the husband of the Chief Justice of Malaysia (Tun Tengku Maimun Tuan Mat)- Zamani Ibrahim- being an active supporter of opposition party BERSATU. Screenshots of Zamani’s social media were recently released where he berated Najib’s policies. This request by Najib’s counsel for Chief Justice Maimun’s recusal has been taken online as a sexist insult that women cannot make decisions in a professional capacity independently-without her husband.
Thirdly within Najib’s statement to the Federal Court, he remarks how he was unjustly denied the counsel of Jonathan Laidlaw QC (Queens Counsel) a “top silk” lawyer from the UK. Najib in the same statement, claims Laidlaw was denied for the “ridiculous” reason that Bahasa Malaysia qualifications were required to practice in Malaysia. However in truth, (as elaborated in an open letter to Chief Justice Maimun by malaysiakini ) as set in precedence by the dismissal of QC’s in previous cases (Cherie Booth), a QC is required to show that he or she had special qualifications or experience of a nature not available among solicitors in Malaysia.
Whether these allegations by Najib’s team are true or not, he will doubtlessly try to propagate these narratives amongst his sizable fanbase.
Najib’s Next Steps
Whereas he was prior to the Federal Court’s decision today Najib was still allowed to retain his title as Pekan MP, now that the decision has been laid out his position will longer be held (Article 48(4)(b) of the Federal Constitution). This means he can no longer carry out duties as an MP in the Dewan Rakyat (Parliament) such as attending Dewan Rakyat sessions, debate and voting procedures.
In addition he can no longer be nominated for a Dewan Rakyat seat, this has been effective since his conviction at the High Court and Court of Appeal decision earlier last year.
Najib is also banned from becoming an election candidate for a period of five years from the last date of his sentence according to a Article 48(3) of the Federal Constitution.
There is still another avenue for Najib Razak to drop his conviction-royal pardon. Tun Dr Mathathir Mohammad said that there is a “50–50 chance” Najib may be able to receive a royal pardon for his conviction over the 1MDB scandal just like how Datuk Seri Anwar Ibrahim (Leader of the Opposition previously received for sodomy charges.
Article 42(1) of the Federal Constitution states:
“The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.”
The effect of such a pardon would remove all legal punishment for the offence and any disqualifications, meaning that Najib would be free to run for office and avoid the 5 year ban listed above.
Criminal Review - Rule 137 of the Federal Court Rules
Finally, Najib may resort to Rule 137 of the Federal Court Rules is a procedure which allows for review of court decisions on the grounds that there has been a breach of natural justice or an abuse of process- according to Lawyer Guok Ngek Seong. For the non-law students out there, the rules of natural justice is simply a term that refers to rule against bias and the right to a fair hearing. Specifically in the context of Rule 137, successful applicants will tend to have proved Coram failure. Coram failure describes where a court is improperly constituted, whether in the course of trial or when the judgement is being pronounced.
Whilst the success of these applications are quoted to be extremely rare in any case, Najib's legal team will no doubt pursue it as it is at his disposal. Najib's claims as summarised above are rooted in the idea that he was deprived of a fair judge, and fair counsel- therefore it is likely his counsel will go ahead with pursuing this claim. If successful, based on the precedent of Chia Yan Tek v Ng Swee Kiat in December of 2000, the Federal court will set aside its decision and order the appeal to be re-heard before a different panel.
A failed applicant of review will have to pay a high cost to the respondents. In a March 2020 case involving a challenge to the Sultanate of Terengganu, the failed applicant Tengku Sulaiman bin Tengku Halim was ordered to pay costs of RM100k- an amount reduced from RM300k.