This article first appeared in The Edge Malaysia Weekly on August 3, 2020 - August 9, 2020

MANY are puzzled why former premier Datuk Seri Najib Razak was not immediately brought to jail after he was sentenced to 12 years’ jail and fined RM210 million or, in default, another five years’ jail by the High Court last Tuesday.

In short, it was because the defence managed to convince Judge Mohd Nazlan Mohd Ghazali that there were “exceptional circumstances” to warrant a stay of the sentence and fine.

The former prime minister and finance minister was also given a certain leeway after he was found guilty by Nazlan. For instance, in between recess by the court, Najib was not allowed to mingle freely but kept in the witness room, which is the holding room. Normally, after a person is convicted, he would be placed in the police lock-up, which is also in court, until bail is produced.

At the end of a long day, he was given a stay of the sentence and fine by Nazlan and ordered to pay an increased bail of RM2 million. (Taking his four other cases into account, his total bail amount stands at RM7 million.) Moreover, he was ordered to report to the nearest police station on the 1st and 15th of every month.

The suspension of the sentence and fine is provided for under Section 311 of the Criminal Procedure Code, confirmed former Court of Appeal judge Datuk Seri Mohd Hishamudin Md Yunus, who is also a member of the Human Rights Commission of Malaysia.

“Normally, as a matter of practice, the court does not stay the fine. In this court case, the court granted a stay due to the big amount of the fine,” Hishamudin told The Edge.

In granting a stay of execution, the court and in this case Nazlan must be satisfied that there are special circumstances to grant the stay — in this case, the jail term and fine — pending an appeal.

Najib is now the most senior member of the executive branch to be convicted, with the others previously being former Deputy Prime Minister Datuk Seri Anwar Ibrahim, former Youth and Sports Minister Datuk Mokhtar Hashim and past Selangor menteris besar Dr Mohamad Khir Toyo and Datuk Harun Idris.

Sentence and fine left hanging

Najib’s lead senior counsel Tan Sri Muhammad Shafee Abdullah indicated to the court that he would like to have the appeal process heard at the Court of Appeal within two or three months.

Najib has two opportunities in the two-tier appeal process, namely at the Court of Appeal and then up to the Federal Court.

He remains the elected lawmaker for Pekan until his appeal is exhausted. However, because of his conviction, he cannot run for elections — a problem the former Umno president and Barisan Nasional chairman may face should snap elections be called in the coming months as forecast.

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