This article first appeared in The Edge Malaysia Weekly on September 12, 2022 - September 18, 2022

LAST week was eventful for jailed ex-prime minister Datuk Seri Najib Razak as his lawyers filed two applications — the first to the Yang di-Pertuan Agong for a pardon, and the second, for a review of the Federal Court’s Aug 23 decision that affirmed his conviction and sentence for his SRC International Sdn Bhd offences.

The application for pardon was filed on Sept 2. Meanwhile, Najib gets to keep his Pekan parliamentary seat until parliament is dissolved, Dewan Rakyat Speaker Tan Sri Azhar Azizan Harun confirmed.

In order to keep his seat, Najib had to file the application within 14 days of the affirmation of his sentence and conviction, as stipulated by Article 48(4) of the Federal Constitution. The disqualification takes effect only after the petition has been disposed. That means Najib will still be an MP until parliament is dissolved.

In his motion for a review of the Federal Court’s decision, he alleges that the apex court last month did not give him the right to a proper appeal hearing. Hence, he is seeking for his case to be heard before a seven-member bench, different from the five-member bench led by Chief Justice Tun Tengku Maimun Tuan Mat.

This two-pronged approach comes after he has served slightly more than two weeks in prison. Legal eagles say there is nothing wrong with this approach, despite questions posed by DAP veteran politician and Iskandar Puteri MP Lim Kit Siang. Lim asked whether Najib could seek a review for a new apex court bench to look at his conviction and sentence when he had already filed an application for a pardon.

Criminal lawyer Datuk Baljit Singh Sidhu tells The Edge that this is the first time the country is seeing the filing of both a pardon and a review at the same time. He says Lim is from the school of thought that asks, when you have filed for a pardon, why seek a review of the apex court’s decision?

“However, Najib may see it in a different context, namely that the offences never took place. Hence, that is why he has filed the pardon and also sought a review at the same time.

“So, his lawyers may be thinking of having either the pardon option or the review. If the pardon is considered, then possibly the review may not take place, and vice versa. This [pardon or review] would have to be handled at each stage.”

Another criminal lawyer, who prefers to be anonymous, shares the same view, that basically what Lim is saying is that when one seeks a pardon, one acknowledges or accepts the conviction and sentence.

“Basically, Lim is saying you cannot be blowing hot and cold. However, the law provides both processes where there is a time limit for applying a pardon and a review. It is not in conflict per se and it depends on the timeline each process may take place,” he says. “If a royal pardon takes place first, then the review becomes obsolete. If the review takes place first, depending on the outcome, the pardon may also become redundant.”

Opposition leader Datuk Seri Anwar Ibrahim, after he was convicted for sodomy for the second time, did not file for a pardon directly, resulting in his losing his Permatang Pauh seat. A by-election was held and his wife Datin Seri Dr Wan Azizah Wan Ismail was victorious. His family applied for a pardon later and he was released when Pakatan Harapan came to power.

Najib’s eldest son from his first marriage and Pekan Umno Youth chief, Datuk Mohd Nizar Najib, recently compared his father’s imprisonment to that of former South African president Nelson Mandela, claiming that his father would rise above the present challenge of imprisonment. Nizar also drew parallels with Prophet Joseph — who had faced a false charge and was later elevated to a ministerial level in ancient Egypt after he was released — when saying his father would emerge a better man from his incarceration.

Nizar’s description and comparison was met with criticism from netizens. Amanah’s Mohamed Hanipa Maidin, who is MP for Sepang, said Nizar’s assertion that his father had been unduly victimised and comparing him to Mandela and Prophet Joseph as manifestly erroneous or a false analogy.

“To begin with, Prophet Joseph never perpetrated any crime let alone corruption, breach of trust or money laundering. Prophet Joseph voluntarily served his prison sentence. After all, he was unlawfully maligned and later rose to become a minister,” Hanipa pointed out.

“As far as Mandela is concerned, he was the freedom fighter par excellence who bravely fought against the Apartheid regime. He never misappropriated any state funds, let alone succumb to mega scandals or kleptocracy. He fought for his people. He never stole from his people! Therein lies the fundamental difference.”

He added that it was fallacious for Nizar to draw any resemblance between his father and Mandela, let alone Prophet Joseph.

Both applications were filed suddenly after a lull of slightly more than two weeks. Najib is also facing four cases — the 1Malaysia Development Bhd-Tanore and the 1MDB audit tampering trials are ongoing, while the other two have yet to start.

Former chief justice Tun Abdul Hamid Mohamad and former attorney-general Tan Sri Tommy Thomas have given their thoughts on this issue.

Abdul Hamid, in a blog post last week, said Malaysia’s laws and judiciary would become a laughing stock if the Pardons Board pardons Najib, who has only just begun serving his 12-year prison sentence.

“The Malaysian Anti-Corruption Commission spent years investigating and the prosecutor spent months studying the investigation papers while the various judges (from the High Court, Court of Appeal and Federal Court) spent years in the hearings and appeals, reviewing and researching, taking into consideration the various evidence, documents, witness testimonies and hundreds of pages of written judgments produced. Need I say more? Let us ponder this,” he said, adding that Najib’s offences are actually much bigger than those of Anwar.

“Anwar’s offence is against an individual. Najib’s offence involves the country’s finances. Should the constitutional monarch give a pardon because his party won the next general election? If this happens, Malaysia and the constitutional monarchy would be a laughing stock,” the former judge cautioned.

Abdul Hamid also noted that Najib is facing more charges and trials, and if he were given a pardon for the SRC case, would he ask for a pardon for the next conviction, and again and again?

He also asked whether it was wise to give him a pardon should BN win the 15th general election. “I think not. The strongest argument is that a pardon should not be given if we follow the previous precedent in Anwar’s pardon (when PH won). This is to prevent leaders who are corrupt, who abuse their power and swindle the country’s money, from facing their sentences. It is also to avoid politicians using our constitutional monarch and the Pardons Board as tools for them to claim power back,” he added.

Former AG Thomas also thinks that the chances of the Yang di-Pertuan Agong granting a pardon and/or court granting a review are minimal.

In an interview with news portal Malaysiakini, he said the whole idea of pardons is that the convict must show remorse and show evidence that you have reformed and turned over a new leaf after being in jail for three or four years, and would not return to engage in criminal deeds.

The Prisons Department would have to prepare a report on the convict, as would the AG, who also sits on the Pardons Board.

“How do you prove that? [The application] is always backed by the parole officer, prison officer and many other independent sources. The more references you get, the better your case. All the references must point to the fact that you have reformed.

“Then, the criterion is if you are a convict, and you apply, you cannot have other criminal cases. In Najib’s case, he has four other pending cases, two of which are very advanced. The audit trial is nearly completed. The 1MDB-Tanore one has crossed halfway in the prosecution’s case. The other two have not started [RM27 million SRC money laundering case and the RM6.6 billion IPIC criminal breach of trust case].”

The former AG added the monarch cannot be entertaining a pardon for an offence when you have four other cases pending.

“So, it is not legally possible for him to put forward his application now. Just not legally possible. He does not pass muster to even submit an application at the present time,” Thomas opined.

As for the motion for review, he said there must be finality in any litigation and the appeal must end at the apex court, which is the Federal Court.

“A lot of lawyers have applied [for review] and I think if there have been 100 review applications in Malaysia in the last 15 years under Rule 137 [of the Federal Court Rules]. I would say 99% of the applications have been rejected.

“The threshold is incredibly, incredibly high. There are two stages. First, the leave, and then the ‘review hearing’ proper. Here in Najib’s SRC case, the problem is everything that happened was self-inflicted and self-induced by the lawyers, whose actions and omissions bound Najib. Indeed, suicidal or kamikaze conduct. After engaging voluntarily in such conduct, it does not lie in their mouths to say, ‘Can we have a review?’” he said.

The Yang di-Pertuan Agong, in officiating the opening of the Pahang Shariah Court Complex last week, said justice does not at all give any privilege or exception to anyone who commits a wrongdoing, be it oneself, close friends, family members or parents.

Although the Agong did not specifically refer to anyone, he added that the principle of Islamic justice does not allow any form of injustice, including to those unliked, besides also upholding justice without favouritism that was practised successfully, and which raised the dignity of Islam during the time of Prophet Muhammad SAW.

“The principle of justice that is transparent [would] also succeed in developing a just, fair and prosperous society. The principle of justice, according to Islam, is upholding God’s trust. Based on the same principle, shariah courts must also be wise in using discretionary powers, and to always be fair to all parties when sentencing, especially those involving family cases.

“If the law is not implemented consistently and fairly, justice will certainly not be achieved, as the philosophy behind the enactment of a law would have been tainted, and as a result, the disadvantaged party would end up being victimised by those in power,” His Majesty said.

As Najib continues to enter and leave Kajang prison to attend his ongoing trials while serving his jail time, only time will tell whether the pardon or review will result in his freedom.

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