In this webinar, Mr Philip Koh and Dr Azmi Hassan analysed the legal and political implications of Malaysia’s former Prime Minister Najib Razak’s sentence reduction relating to the 1Malaysia Development Berhad (1MDB) scandal.
MALAYSIA STUDIES PROGRAMME WEBINAR
Wednesday, 27 March 2024 – In 2020, Malaysia’s former Prime Minister Najib Razak was found guilty by the High Court for criminal breach of trust, money laundering and abuse of power pertaining to SRC, an affiliate of the 1MDB strategic wealth fund. He was then imprisoned in August 2022. In subsequent months, Najib and his legal team made two appeals to the Yang di Pertuan Agong (YDPA), Malaysia’s king, for pardon. In January 2024, on the last day of his reign, the YDPA reduced Najib’s sentence from twelve to six years and cut his fine from 210 million to 50 million ringgit. The Malaysia Studies Programme organised a webinar with Mr Philip Koh and Dr Azmi Hassan as guest speakers to address questions of interest surrounding this decision, specifically the legal and political implications. Mr Philip Koh is an advocate and solicitor at the High Court of Malaya while Dr Azmi Hassan is a Geostrategist and Senior Fellow at the Nusantara Academy of Strategic Research.
Mr Koh’s presentation covered two aspects: firstly, the court proceedings; secondly, what it means to relate a trial like this one to “political trials”. Looking at the court proceedings, Mr Koh first laid out the facts: seven charges were proffered against former Prime Minister Najib Razak. The Apex Court (Federal Court) ruled that they are not inclined to disturb findings concurrently made by the Court of Appeal and the High Court; neither found the sentence imposed as manifestly excessive. Mr Koh then focused on the power to pardon under the federal constitution. Article 42 (1) states that “the YDPA has power to grant pardons, reprieves and respites in respect of all offences in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.” The language used comes from the historical legacy of common law of the power of clemency and pardon under the royal prerogatives of the monarch in the United Kingdom, classified as royal prerogatives. A question that arises would be, is the YDPA’s power similar and equated to the royal prerogative of pardon? Mr Koh noted that Malaysian courts have consistently ruled the exercise of his majesty (YDPA)’s power as a royal prerogative and are not susceptible to be challenged in court, that is, non-justiciable. Nonetheless, it is worth pointing out that Article 42 does not use the term “royal prerogative”, which is notable when compared with the Perak state constitution for example which uses the term “royal prerogative” under provision article 10. Constitutional jurists would argue that provision 42 of the Federal Constitution is the nature of a creation of federal constitution. The elected monarch, YDPA, does not carry the same royal prerogatives but is in fact a constitutional monarch and the discretion that he is given the power to discharge the power of pardon may be susceptible for review. The Malaysian Bar Council in the recent annual general meeting has passed a resolution to launch a collateral attack on the reduction of sentence of Najib Razak, arguing that the Pardons Board in issuing the reduction of sentence needs to provide various grounds, among other arguments. Mr Koh said that it would be interesting to see if the Malaysian courts are willing to revisit this issue; whether it is justiciable or not. Summarising the first part of his presentation, Mr Koh said that the power of pardon has been characterised as royal prerogative thus far. The contestation now is whether the royal pardon is a constitutional discretion which may be reviewable, not as a direct attack against the YDPA but against the Pardons Board.
Moving on to the second part of his presentation, Mr Koh analysed why this case is in the nature of “political trials”, that is, a court action called upon to exert influence on the distribution of power. Najib Razak’s court case has resulted in several public controversies. One concern that arose was whether the Attorney General office would withdraw or dismiss Najib’s charges leading to a Dismissal Not Amounting to Acquittal (DNAA) such that Najib would be free from prosecution charges. Yet another issue of concern surrounds the transparency of the pardons process. Mr Koh said that in many Commonwealth countries such as Australia and the UK, the exercise of the Home Secretary in the pardons process has protocols and transparency. The opaqueness of the pardons process in Malaysia has thus given rise to controversy. While the exercise of pardon has been adhered to according to Article 42, beyond rules-based compliance, the moral legitimacy of the reduction of Najib’s sentence has come to the fore. A question that arises is, is it necessary for the petitioner of pardon to acknowledge remorse for their action before the Pardons Board sits? Article 42 provides very little guidance except that the Attorney General may provide advice and the Pardons Board takes into consideration the advice. Rulers also play a role—the Sultan of Selangor had supported a public statement that the YDPA cannot arbitrarily use his power of pardon. This case is thus in the nature of a “political trial” where beyond adherence to rules, public opinion and the moral legitimacy of the YDPA’s decision will be held in question.
Dr Azmi Hassan then provided his analysis from the political point of view. Dr Hassan said that “Najib’s clemency seems shocking” for two groups: Pakatan Harapan (PH) supporters and UMNO supporters. For the former, the reduction in fine by more than half does not tally with the halved jail time. For the latter, it is worth asking if Najib has influence in the current UMNO party. Dr Hassan said that Najib has supporters but not as many as before the 2018 General Elections. Nonetheless, many UMNO grassroots are not happy as they had expected Najib to be given a full pardon. Dr Hassan then analysed the sentence reduction to be a result of Malaysia’s tangled politics, pointing out that the two main blocs in politics are PH and Barisan Nasional (BN). Even though UMNO only has 26 seats, he argued that it is the kingmaker because if UMNO were to pull out from the Unity Government, the Unity Government would likely crumble even with a majority of 5-6 seats. Notably, there were quarters in UNMO who pulled out after the sentence reduction as there were rumours that current Prime Minister Anwar Ibrahim who is a member of the Pardons Board did not go far enough to convince the YDPA that Najib should be given full clemency. Nonetheless, there are many different versions of the story due to the lack of transparency in the pardons process and the strategy of waiting till the last day of then YDPA’s reign. Addressing the question of whether the reduction in sentence is a result of Malaysia’s back-scratching politics, Dr Hassan noted that PH and UMNO are working together. There are political interventions in this case given the precedence; not only so, Anwar Ibrahim who received a full pardon is now the prime minister of Malaysia.
Examining the 2022 General Elections (GE15) vote pattern based on race, Dr Hassan pointed out that nearly 80% of Malay voters voted for the Perikatan Nasional (PN) opposition coalition while nearly 100% of non-Malay voters voted for PH. While BN was not important in GE15, the Prime Minister understands that PH needs Malay votes (from PN) while PN needs non-Malay votes. Dr Hassan argued that it is not the job of PKR or Amanah to gain the trust of Malay voters migrating to PN, but the job of UMNO. One method is thus to show that UMNO has influence, thus the half clemency is a win-win situation. On the one hand, while PH supporters are not fully satisfied, they are happy as Najib is still in prison. The non-Malay voters who voted in GE15 and the last six state elections would have no choice but to support PH. Even if Najib is released earlier for parole, he would not be able to participate in the next General Elections. Dr Hassan thus noted that contrary to popular opinion, Anwar is not between a rock and a hard place. In fact, the reduction in sentence is a win-win situation that satisfies all quarters.
The webinar proceeded to a Q&A session. The speakers fielded questions including: the possibility of Najib’s early release, reactions to another guilty verdict, what Najib’s lawyer hoped to achieve in publicly disclosing that the YDPA was allegedly inclined to a full pardon, impacts of Najib’s release on PH, what Najib’s cause is, and Najib’s teams’ likely legal strategy. Malaysia Studies Programme Coordinator Dr Francis Hutchinson moderated this webinar, which attracted participants from the policy, business, legal and academic communities.