The Center to Combat Corruption and Cronyism (C4 Center) is gravely disappointed by the recent decision to commute the sentence of disgraced former Prime Minister Najib Razak after his conviction in the SRC International trial.
Najib’s convictions for abuse of position for gratification of RM42m, three counts of criminal breach of trust and three counts of money laundering led to the imposition of a sentence of 12 years’ imprisonment and a fine of RM210m, which has now been reduced to only five years’ imprisonment and a mere RM50m fine.
Pardons in various forms are inextricably linked with considerations of justice. This process acts as a final safeguard where the criminal justice system fails to exonerate those who are deserving of mercy due to all surrounding circumstances.
However, in this case, there is serious doubt whether Najib is deserving of such mercy for the crimes he has committed. In his position as the leader of the nation, he abused the authority and trust reposed in him by voters to unjustly enrich himself to the detriment of all other people in Malaysia.
The Court of Appeal referred to his SRC International case as a “national embarrassment”. He still has several pending criminal trials for other corruption-related offences and a summary judgment of about RM1.7bn in unpaid taxes due to the Inland Revenue Board.
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His legacy is tainted with multiple instances of massive theft from the people of Malaysia. His actions have imposed exorbitant debts upon innocent taxpayers, depleting public funds, which could have provided for our people for years to come. Is this truly the sort of person who deserves clemency?
We cannot deny the harm that the decision will have on public perception of the integrity of our national institutions and the criminal justice system, most notably a loss of faith in the government due to the perceived unequal administration of justice that favours the powerful and influential.
In a nation where individuals are imprisoned for stealing minor sums to support their families and have to serve their sentences in their entirety, the conferral of mercy upon a man who stole millions is a mockery of the constitutional right to equality and equal protection of the law under Article 8 of the Federal Constitution. Indeed, politicians such as Mokhtar Hashim, Harun Idris and Anwar Ibrahim are examples of powerful individuals who have also been able to receive pardons.
This decision comes at a huge cost: that of public funds spent on the various trials, interlocutory applications and appeals arising from Najib’s prosecution.
Furthermore, the concerted efforts of the enforcement agencies, investigative journalists and various foreign governments who were involved in the investigations and, most importantly, the whistleblowers who risked their lives to expose the scandal are now all rendered meaningless.
This decision also effectively undermines the sentencing decision made and confirmed by three levels of the judiciary and, most of all, brings the monarchy into disrepute by dragging them through the quagmire of politics and power.
The commutation of Najib’s sentence does not undo the damage he has caused to this nation, both in terms of tangible impact and international reputation.
The investigations against and prosecution of Najib spanned different continents and across the multitude of scandals he played a role in – from the Scorpene scandal to the US Department of Justice aiding in the 1MDB investigations.
The reduction of Najib’s sentence sends a message to the international community, some nations of which may have been affected by the nature of this cross-border corruption, that the Malaysian authorities simply do not care about corruption taking place within and outside of Malaysia – that the politicking taking place within our borders supersedes considerations of inter-governmental relations.
That is not even to speak of the impact this will have on Malaysia’s socioeconomic status, owing to how this will affect the government’s relationship with the private sector both domestically and internationally.
It is commonly argued that the government’s lax attitude towards corruption and those found to have been perpetrating corruption will result in a drop in foreign direct investments into Malaysia due to a lack of confidence by international companies that they will be able to conduct their operations in a fair and competitive market. This would culminate in the wholesale detriment of the people.
As for next steps, it is important to consider the legal position of the power of pardon. This power is constitutionally afforded to the rulers of each state and the Agong (for the federal territories) under Article 42 of the Federal Constitution.
In this case, although the Pardons Board of the federal territories – on which the attorney general and the minister in charge of the federal territories sit — does provide advice, the ultimate discretion to grant the pardon is a purely personal prerogative of the Agong, unlike most other exercises of discretion by the Agong, which is subject to the binding advice of the executive. This power has been repeatedly declared by the judiciary as a non-justiciable one, ie it cannot be challenged even by the courts.
Nevertheless, this incident must be viewed as a watershed moment for Malaysia. We must be prepared to recognise that the pardons process should undergo appropriate reforms to better reflect the needs of the country.
Suitable limits should be introduced in order to uphold justice and fairness for all, such as mandatory minimum periods for serving one’s prison sentence before a pardon application may be considered and a restriction against granting pardons where other criminal prosecutions of a similar nature are still pending against the individual.
We must be allowed to have open, sincere and respectful discussions on this topic for the shared goal of the betterment of this nation. Other nations also have sets of guiding principles which shall guide the granting body in determining pardon applications, such as Canada, which stipulates minimum “waiting periods” to be eligible to apply and requires evidence of substantial injustice or undue hardship arising from the nature of the sentence or conviction.
As for the Anwar administration, this decision should be viewed with significant concern. Although the PM and his cabinet cannot be held responsible for the commutation itself, this is only the latest in a series of concerning incidents which cast doubt upon the government’s conviction to tackling corruption and upholding good governance in Malaysia.
Despite repeatedly asserting his government’s commitment to these goals, to date many promised reforms have not yet materialised or have been completely abandoned. The people grow weary of empty words which are not reflected in reality.
It is now incumbent upon Anwar and his ministers to work even harder to reverse the growing trust deficit in his leadership, lest his legacy as the leader of Reformasi itself is shattered irreparably.
Therefore, C4 Center urges the following:
- Introduce minimum criteria for eligibility to apply for pardons, and a fair and transparent procedure for the processing of pardon applications and
- Expedite the implementation of long-standing reform proposals, such as laws to control political financing, the separation of the attorney general’s and public prosecutor’s offices, and the independence of the Malaysian Anti-Corruption Commission