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This article first appeared in The Edge Malaysia Weekly on September 14, 2020 - September 20, 2020

HIGH Court judge 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.

He observed that Najib had expressed no remorse for his actions, and that his explanation that he had used a part of the RM42 million stolen from SRC International Sdn Bhd for charitable purposes simply could not be justified.

“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,” Nazlan said.

In a 500-plus-page written judgment for the Malaysian Law Journal, the judge said that, while Najib had made contributions to the people’s well-being and betterment in many different ways, the court would let political history 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 of Article 8 of the Constitution that enshrines that rule that all persons are 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 on power, Nazlan said he had seen citizens place the former premier in a position of trust in Malaysia’s system of constitutional democracy.

However, Najib’s conviction on 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”, Nazlan said.

“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 among 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, that it involved a huge sum of RM42 million [and] had an element of public impact, as the RM42 million belonged to an MOF Inc (Minister of Finance Inc) company.

“Perhaps most importantly, it involved the person who at the material time was in the highest-ranking authority in the government,” 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 officials such as Datuk Seri Anwar Ibrahim (deputy prime minister), Datuk Harun Idris and Dr Mohd Khir Toyo (both menteri besar of Selangor), Abdul Ghani Ishak, Datuk Waad Mansor, Datuk Sahar Arpan and Datuk Mohamed Muslim Othman (who were either state excos 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,” Nazlan said.

Not remorseful

Nazlan also found the former premier not to be remorseful over the charges. “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.

“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.”

Formerly a subsidiary of 1Malaysia Development Bhd, SRC was later placed directly under MOF Inc.

Prosecution witnesses had testified to receiving cheques from Najib for various charities — he also gave money to a widow of a staff at his department — but he had also spent on his personal purposes, including renovations to his house in Jalan Langgak Duta and Pekan homes.

During mitigation before the sentence was meted out, Najib had described his achievements in leading the country for nine years from 2009 to 2018. He also took to reciting a religious oath.

“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.

Nazlan finds little merit, however, 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.”

Najib was sentenced to a total of 12 years’ jail, and fined a total of RM210 million on all three charges. He is appealing his conviction and sentence, while the prosecution is also cross-appealing the sentence, as it is seeking a heavier sentence.

This story first appeared in The Edge CEO Morning Brief on Sept 11

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