By M Santhananaban
Perhaps the most positive thing about the federal territories Pardons Board decision is that it held that the convictions for the offences committed by former Prime Minister Najib Razak in the RM42m SRC case should remain.
Najib, however, was granted a reduced term of imprisonment from 12 years to six years and a 76% ‘discount’ on the fine imposed on him – from RM210m to RM50m.
Consider this: when the Court of Appeal dismissed Najib’s appeal, it noted (in the last part of paragraph 54 of its judgment) that “when queried by this Court as to what had happened to the RM4 billion KWAP loan, counsel for the appellant answered no one knows”.
The court also noted (in paragraph 117) that “there were no discernible investments that required the funds”.
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Najib was tried and convicted for deriving advantage from RM42m, not for the entire RM4bn KWAP loan.
The irony is that Najib was one of the prime architects of our anti-corruption institutions and laws. He had vast and unmatched power as PM. But even before he assumed the prime minister’s post, he was a powerful man, as those high in the executive hierarchy had almost full control of Parliament.
In 2008, the prime minister was Abdullah Badawi. Back then, Najib was raring to assume the PM’s post. It would seem he wanted the then existing (already strong) anti-corruption laws to be strengthened further.
On 3 April the following year, Najib became PM. So did he have a role in the promulgation of the Malaysian Anti-Corruption Commission Act (MACC Act), which came into force on 1 January 2009?
To show he was serious about good governance, Najib saw to the passing of the Whistleblower Protection Act in May 2010 and the establishment of the Razak School of Government a few months later.
The MACC Act has several severe provisions. Judges who adjudicate these cases are given little scope for discretion in sentencing, especially in the fines they may impose when an accused is convicted under the act.
Section 24(1) of this act states:
Any person who commits an offence under sections 16, 17, 18, 20, 21, 22 and 23 shall on conviction be liable to—
(a) imprisonment for a term not exceeding twenty years; and
(b) a fine of not less than five times the sum or value of the gratification which is the subject matter of the offence, where such gratification is capable of being valued or is of a pecuniary nature, or ten thousand ringgit whichever is the higher.
Other sections of this act set the tone to show that the government of the day is serious and uncompromising in its fight against corruption.
The PM and his cabinet were seemingly convinced and committed to this fight against corruption, at least at the proclaimed and propaganda level.
With this backdrop, it seemed inconceivable that a deputy PM of the administration that had promulgated this law would, a dozen years later, become a convicted prisoner petitioning for his own pardon despite being given a fair and lengthy trial!
Some Najib’s sympathisers appeared deeply troubled by the sentence meted out to him. They may even have exerted pressure on the authorities to consider a pardon of some sort.
The details of the kind of pardon sought are not available. But it does seem that the current government was privy to an unspecified federal territories Pardons Board meeting to consider a pardon, given that a new federal territories minister sits on the board.
The preoccupation with a possible pardon on the penultimate day of the previous king’s reign was most unfortunate. Was there a desperate last-minute plea to appeal to the king’s compassion and forgiving nature?
When other criminals are convicted and given long sentences, people generally feel they deserve it because they committed serious crimes. But, it would seem, an objectionable exception has been made for Najib.
The speculation about a pardon for Najib rose to astonishing levels on 30 January, the day the previous king relinquished his position to return to Pahang. The rumour mill was fuelled by a foreign news report in the afternoon that predicted – accurately as it turned out – that the prison term would be halved.
Three days later, on 2 February – and there was still no official word about the pardon till late in the forenoon. Speculation was rife that Najib had been pardoned. References to some discussion or decision on a pardon by two cabinet ministers had further muddied the waters.
When the decision was finally revealed, it was fairly obvious that there had been some leak of the deliberations of the Pardons Board. How did it happen? If true, it was a serious security breach.
Any announcement on such an important decision by the Pardons Board must be made with due protocol and in line with established procedures. A pardon is not something that becomes legal or operational because the public had become attuned to such a possibility.
To begin with, a pardon or the commutation of the death penalty is rare. Political leaders receiving pardons only became public knowledge in the 1980s and 90s under Dr Mahathir Mohamad’s leadership. A former minister and menteri besar were among those granted pardons.
Then, there was the other pardon involving Anwar Ibrahim in 2018.
Some believed it was premature for Najib to be eligible for a pardon, as he had served less than one sixth of his prison term and had not yet paid the RM210m fine imposed on him. He was also not on death row and had not been given the maximum 20-year prison term.
The reduction of both the prison sentence and the fine suggests that the Pardons Board does not agree with the penalties specified in the MACC Act. It further suggests that there should be leniency in matters of corruption and abuse of office.
In seeking an early pardon, Najib appears to have put himself above the spirit of the law, even after his conviction and sentencing. But it was his serious flouting of the law in the first place that landed him in trouble – and in prison.
For Najib, his need to extricate himself from his long prison term and the hefty fine (over which the judiciary had little discretion) apparently assumed paramount significance.
Najib was involved in activities that had multi-billion dollar consequences for the nation.
The official announcement on 2 February that his prison term had been halved and the fine heavily discounted seemed highly unusual.
But even before that, it was already clear that while Najib had officially preached about the lofty principles of good governance, he was himself a dubious character who put his personal interest above the laws and the legitimate aspirations of the people.
The implications of the Pardons Board decision are far-reaching and inimical to Malaysia’s standing in the community of nations.
Tragically, the outcome could result in irreparable damage from a national perspective. It impinges on a fundamental principle in any political entity – that there has to be utmost respect for the rule of law.
What does it say about the current government’s commitment to combat corruption or abuse of office, especially when it involves highly placed officials?
The current PM and his government must realise that, with a few more cases involving Najib coming up, a pardon at this stage would only confuse the people.
It also undermines the efforts of investigators and prosecutors and demoralises the system of administration of justice.
For foreigners in the banking, business, financial and investor community, it suggests that while Malaysia has its laws and penalties, these may be side-stepped to suit the whims and fancies of particular members of the political elite.
The slashing of Najib’s sentence will be viewed adversely in most international corporate financial centres. Many will see this decision as implying that the strict penalties for any breach of the law in this country can be set aside or rendered ineffective.
Can ordinary people be blamed for now seeing the tough anti-corruption penalties as only applicable to compromised lower-grade civil servants or those on the lower rungs of the banking and business community? Did the political elite who formulated these laws have the belief and confidence that these laws would never in their wildest dreams apply to them?
At a time when Malaysia is trying to catch up with other countries and draw foreign investment and resources, it cannot afford to show that its institutions, including the pronouncements of its judiciary, do not have binding force. Varying or reducing penalties laid down by higher courts is a luxury the country can ill afford.
It would seem that Malaysia has defaulted on its debt of accountability to its own people and betrayed them.
Dato’ M Santhananaban is a former ambassador with 45 years of public sector experience