Build a society that ‘knows shame’: Make public all documents in Najib’s pardon

With heavy hearts, we, the undersigned civil society organisations, call upon all Malaysians to build a society that ‘knows shame’ (tahu malu), where the theft of public funds and the betrayal of a public mandate will be shunned by every stratum of society. 

Blessed by the teachings of Islam and other faiths and civilisations, Malaysia must revert to be a society with a strong sense of integrity and shame, to deter – not defend – corruption and abuse of power. Past contributions are not a license to steal or to escape punishment.

To that end, we call for the immediate and full disclosure of all documents in Najib’s ‘conditional pardon’ on 18 September, in which he is allowed to serve the remainder of his six-year sentence (after reduction in the previous pardon) at home after paying the reduced fine of RM50m (after the reduction granted in the previous pardon), including the attorney general’s written submission, and the pardon board’s meeting minutes.

Good decisions can withstand public scrutiny and need no protection of confidentiality. The Malaysian public deserves to understand the reasoning behind Najib’s pardon.

Our detailed position is as follows:

Najib’s crime against the people and adamant refusal to accept his punishment underlines a deep malaise amid the people: a growing new norm that excuses or even embraces wrongs against public interests, to the extent wrongdoers see themselves as victims of political persecution and know no shame (tak tahu malu).

Such affirmation of immorality is a wake-up call for us to build a law-abiding and moral society, upholding the Rukun Negara (national principles) – formulated under the second Prime Minister, the late Abdul Razak Hussein – of which the fourth principle, ‘The Rule of Law’ (Kedaulatan Undang-undang), is followed by the fifth, ‘Courtesy and Morality’ (Kesopanan dan Kesusilaan).

Building a society that ‘knows shame’ requires us to put to rest toxic partisanship, often fuelled by weaponised identity politics, and build a cross-party consensus towards fairness and decency.

We must humbly recognise and own up the failure of our political system in enabling Najib’s impunity as our collective responsibility.

We must be firm yet prudent in combating corruption, abuse of power, and mistreatment of the opposition, making sure our attacks on corruption do not get weaponised in identity politics.

We must demand the separation of the attorney general and public prosecutor and the passage of the enabling act to be completed before the coming general election.

Najib’s pardon casts a shadow on public perception of the rule of law, not only because he never fully admitted his guilt in the SRC (corruption) case  – instead he has repeatedly framed himself as a victim of political prosecution – but also because he has an outstanding case in 1MDB Tanore, for which he was convicted, with a sentence of 15 years in jail and RM 11.4bn in fines, and his appeal is still underway.

On top of that, he has two more cases – SRC2 (money laundering) and Ipic, in which he has only been given a discharge not amounting to acquittal order and may be re-charged.

The amounts involved in all these four cases total RM9.0bn – equivalent to roughly 250,000 years of a RM3,000 monthly salary.

Najib’s home detention raises a fundamental question: if his conviction for 1MDB Tanore is upheld by the Federal Court, would he be realistically sent back to jail? Or, is he expected to get another pardon to stay out of jail, which risks making the judicial process a mockery?

Najib’s unsettled case makes his pardon distinctively different from that of Prime Minister Anwar Ibrahim, who did not have an outstanding case at the time of his pardon in 2018.

In a parliamentary democracy, laws are made only by parliament and, with derived power from constitution and laws, by the executive.

There is currently no law providing for home detention or arrest by way of pardon. Article 42(1) and (2) of the Federal Constitution empowers the Agong (for the federal territories) and the ruler or governor (for the states) to “grant pardons, reprieves and respites” and to exercise “any power conferred by Federal or State law to remit, suspend or commute sentences”.

Section 43 of the Prisons Act 1995 only allows for the release of any prisoner “on licence”, subject to “any regulation made by the minister”.

Home Minister Saifuddin Nasution Ismail talked about a proposed law on the matter in November 2024.

This raises two pertinent questions that the Attorney General’s Chambers must answer:

• Can the imprisonment imposed on Najib in the SRC case be commuted to home detention within the confines of Article 42(1) and (2) of the Federal Constitution?
• If so, has the pardons board effectively assumed Parliament’s role in creating a law for “home detention” through its decision? 

Justice must not only be done but also be seen as done. Failure to convince [the public] that laws are equally applied, regardless of status, power or any political or demographic category, destroys public faith in the rule of law, breeds cynicism and endangers democracy.

‘Dua darjat’ (double standards in enforcement of laws) can destroy Malaysia by granting impunity to privileged criminals and demoralising the law-abiding masses.

Hence, important public decisions must be made transparent for the people to understand the reasons employed in such decisions. Good decisions can withstand public scrutiny and need no protection of confidentiality.

As Najib’s pardon carries far-reaching implications on both the rule of law concerning his unsettled cases and Parliament’s role of law-making, all documents involved, including the attorney general’s written submission and the pardons board’s meeting minutes, should be immediately and fully disclosed.

The people still remember the troubling suit regarding the last pardon for Najib, exactly because the documents were not fully disclosed.

Endorsed by: 

1. Project Stability and Accountability for Malaysia (Projek Sama)
2. Angkatan Belia Islam Malaysia (Abim)
3. Engage (citizens in action)
4. Gabungan Bertindak Malaysia
5. Gabungan Pilihanraya Bersih dan Adil (Bersih)
6. Iman Research
7. Institute for Democracy and Economic Affairs (Ideas)
8. Lawyer Kamek
9. Liga Rakyat Demokratik
10. Muslim Professionals Forum (MPF)
11. Persatuan Pemangkin Daya Masyarakat (PPDM/Rose)
12. Pertubuhan Ikram
13. Rasuah Busters
14. Suara Mahasiswa UMS

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