"The recipients of the spending by the accused are many and various but unmistakably for the accused’s own purposes and benefits.” — Justice Mohd Nazlan Mohd Ghazali.
KUALA LUMPUR (Sept 10) : High Court judge Justice Mohd Nazlan Mohd Ghazali characterised the conviction of former premier Datuk Seri Najib Razak, last July 28, as the worst case of abuse of position.
In a 500 plus page written judgment for the Malaysian Law Journal, the judge said while Najib had made contributions to the well-being and the peoples betterment in many different ways, the court would let political history to debate whether the former premier of nine years had done on balance more good than harm.
“This very process (the long trial) would arguably be inimical to the ideals (of the nation) of a clean administration that does not tolerate corruption and abuse of power.
“What this court seeks to affirm is the sanctity of the rule of law and the supremacy of the Constitution. No one - not even one who was the most powerful political figure and the leader of the country enjoys a cloak of invincibility from the force of the law. Any notion to such effect is the very antithesis to the Article 8 of the Constitution that enshrines that rule that all persons all equal before the law,” he said.
Betrayal of trust
Commenting on Najib's ascension to the pinnacle of the country's leadership and his grip to power, he said he had seen citizens to place the former premier in a position of trust in our system of constitutional democracy.
However, his conviction, Nazlan said of all seven charges concerning abuse of position, criminal breach of trust (CBT) and money laundering constitutes nothing less than “an absolute betrayal of that trust”.
“For this reason, I consider the conviction of the accused for abuse of position under Section 23 of the MACC Act as the most serious transgression amongst the three given his position of trust as the nation’s Prime Minister and Finance Minister when the offences were committed.
“I would not hesitate to find that this case can be characterised as one that falls within the range of the worst kind of abuse of position, of CBT and of money laundering because not only of how the crimes were committed, but more importantly also it involved a huge sum of RM42 million, had an element of public impact as the RM42 million belonged to an MOF Inc. company.”
“Perhaps most importantly, it involved the person who at the material time was in the highest ranking authority in the government,” Justice Nazlan said.
The government funds, the judge said could have originated from the RM4 billion financing from state pension fund Retirement Fund Inc (KWAP), and the status of the bulk of the RM4 billion is said to be an indeterminate obscurity.
The court contrasted Najib's case with past convictions of other higher ranking official, namely Datuk Seri Anwar Ibrahim (deputy prime minister), Datuk Harun Idris and Dr Mohd Khir Toyo (Selangor menteri besars), Abdul Ghani bin Ishak, Datuk Waad Mansor, Datuk Sahar Arpan and Datuk Mohamed Muslim Othman (who were either state exco's or assemblymen).
“In respect of the offence under Section 23 of the MACC Act, and its precursor (the Prevention of Corruption Act 1961, this is the first time a person was charged for acts done when he was the serving Prime Minister, and is undoubtedly without precedent in the sense that previous convictions of high ranking politicians could not be considered to be in the same league as the Prime Minister of the country,” he said.
Justice Nazlan also found the former premier not to be remorseful over the charges he (Najib) is facing.
“The accused did not express any remorse and even maintains his defence of no knowledge of the RM42 million from SRC in his mitigation speech. Yet I cannot deny he was the Prime Minister of the country,” he said.
“The use of that property by others can never be justified under any circumstances. This is immutable and cannot be obfuscated by any diversions that the certain portions of the monies out of the RM42 million were expended for charitable purposes.
“There is quite simply no virtue in donating what one does not own. SRC International Sdn Bhd was established to spearhead the promotion of alternative energy resources for the country. The recipients of the spending by the accused are many and various but unmistakably for the accused’s own purposes and benefits,” he said in alluding the purpose SRC was set-up.
SRC was formerly a subsidiary of 1Malaysia Development Bhd, and later placed directly under Finance Ministry Inc.
Witnesses from the prosecution had testified how they received cheques from the former premier for charity including a widow of a staff from the Prime Minister's Department, and also various payments for purported work done on renovation to his house in Jalan Langgak Duta and Pekan and other expenses.
Najib during mitigation before the sentence meted out by the court described his achievements in leading the country for nine years – 2009 to 2018 and also reiterated by saying the religious oath in the accused dock.
“As a Muslim, wallahi wabillahi watallahi [...] I never sought any gratification and I did not know that the RM42 million went into my account at that material time," said the former premier.
However, Justice Nazlan finds little merit to what the former premier said in his mitigation.
“There is little merit in this court pontificating and lamenting on why the accused had done what he did, despite (or because of) his undisputed standing at the apex of the vast wealth of power and unparalleled authority. The accused, I repeat, is a person with a keen intellect and must surely have a firm sense of right and wrong,” the judge said.
Najib in the end was sentenced to a total of 12 years jail, and fined a total of RM210 million for all three charges, which the former premier is appealing on his conviction and sentence.
On the other hand, the prosecution is also cross-appealing on the sentence.