This article first appeared in Forum, The Edge Malaysia Weekly on October 10, 2022 - October 16, 2022
The basic premise behind a jail sentence is to deprive a convicted person of his or her freedom as punishment for an offence that he or she has committed.
Nevertheless, the degree of restriction on a person’s freedom depends on the crime committed. On this score, it is acceptable for prisoners such as former prime minister Datuk Seri Najib Razak to be accorded some privileges.
But like many things in life, such privileges should also be made available in moderation. Going overboard would erode the credibility of the country’s criminal justice system.
The Prison Department is one of the three core institutions that have the responsibility of ensuring that those who have committed crimes meet with the appropriate punishment; the other two being the police and the judiciary.
A lapse in judgement or enforcement in any of the three institutions would impact the standing of the entire system.
Najib is not an ordinary citizen. He is a former prime minister who ran the country for nine years. During his tenure, he implemented some bold economic measures to help improve the country’s finances and the government’s balance sheet.
He introduced the Goods and Services Tax (GST) to reduce the country’s reliance on oil revenue. He reduced the bumiputera equity requirement for listed companies from 30% to 12.5%, attempted to introduce a New Economic Model (NEM), and reduced the powers of the Foreign Investment Committee.
But his economic measures have been overshadowed by the colossal financial fiasco in the form of 1Malaysia Development Bhd (1MDB).
The level of blatant financial mismanagement in the sovereign wealth fund is well recorded not only in Malaysia, but goes all the way to the US Department of Justice. The fund was described as a “personal ATM” to fund the activities of the then prime minister and others at large such as Jho Low.
Until today, Malaysia is paying the price for the gross financial mismanagement of the fund where large sums of money raised by 1MDB, through federal government guarantees, were syphoned off. As of June this year, 1MDB had outstanding financial obligations of RM31.6 billion. It includes a US$1.75 billion bond due this month and another US$3 billion debt paper to be redeemed in March next year. The finances of SRC International, another company related to 1MDB, is also in shambles.
It became so bad that money allocated for the country’s development expenditure was channelled to repay SRC’s loan obligations.
After going through nine judges at three levels of the judiciary, Najib was found guilty and started his 12-year jail sentence on Aug 23.
The police and the judiciary have completed their work. It is now left to the Prison Department to carry out the edict of the judiciary.
Generally, those who are convicted are to be confined to their cell unless they have to attend court or are in need of medical attention. They are allowed scheduled visits by their immediate family. There are no extra privileges accorded unless the person has a special status — such as the case of Najib — where there is room for some discretion.
Najib is already being treated differently from other felons. He comes to court in special vehicles and not a Black Maria. He is not handcuffed and gets to spend some time with his family during the hearings. A news website even reported that there is a special room for Najib next to the court, which his lawyers have denied.
Apart from his criminal cases involving 1MDB, Najib has also obtained clearance from the courts to attend civil suits that he is involved in. This effectively means that in the next few years, Najib would be shuttling frequently between his prison cell and the court house.
According to his lawyer, Tan Sri Mohamed Shafee Abdullah, Najib does not get any special privileges except for his dietary requirements.
In the latest turn of events, Najib’s lawyers have filed for a judicial review seeking approval for him to attend parliament and meet with his aides to help service his constituents in Pekan. The court process has just started and it could be moot when a decision is arrived at because a general election could be called very soon.
If parliament were to be dissolved, Najib would not be able to defend his seat in Pekan and, hence, would no longer be an MP. The question of him appearing in parliament or seeking to meet his aides to service his constituents would therefore not arise.
Nevertheless, Najib’s seeking to attend parliament became a topic of discussion last week. Speaker Tan Sri Azhar Azizan Harun said that he could not stop Najib from entering parliament if the Prison Department allowed him to do so. The department had already rejected Najib’s application, which led to Najib’s application for a judicial review.
Legally, a convicted MP can seek legal redress for him to perform his duties as a MP. But this poses certain ethical questions. Does election to public office mean that life goes on virtually like normal even though the official is serving a jail sentence and awaiting the outcome of a petition for a royal pardon?
The fact that the matter was even brought up in parliament is baffling. On the face of it, it may sound logical for the Speaker to state that if the Prison Department allowed Najib to attend parliament, there was nothing to stop him from entering the august House.
But what does that do to Malaysia’s criminal justice system?
The principal objective of that system is to help keep society safe from people who commit crimes. The offenders are removed from society and spend time in isolation to ponder the effects of their actions on others. Many take the opportunity to become law-abiding citizens and return to society. But in reality, it does not happen very often as most people who go to prison do not have a happy story to tell.
Another overriding objective of the system is that it acts as a deterrent for society at large. It is a showcase for the principle that nobody is above the law and those who commit crimes will have to pay the price.
On that score, the functions and operations of the Prison Department cannot be compromised. It will inadvertently affect the credibility of the police and the judiciary.
M Shanmugam is a contributing editor at The Edge
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