As Najib makes prison his home, what options does he have left?

KUALA LUMPUR – After an exhausting three-and-a-half-year court process that had dragged on since April 2019, Datuk Seri Najib Razak will finally begin his 12-year prison sentence, having depleted all legal avenues available to him. 

He goes down as the first former Malaysian prime minister to serve jail time, following the apex court’s decision to uphold the high court’s previous ruling that Najib was guilty of all of the seven charges in his SRC International Sdn Bhd corruption case. 

This is despite Najib and his counsels’ various delay tactics to postpone his appeal process and sentence, which saw his defence team even attempt to recuse chief justice Tun Tengku Maimun Tuan Mat from hearing his final appeal. 

As the disgraced former prime minister makes his way to his new prison home, The Vibes takes a look at what the fallen Umno leader has left in his pursuit of freedom. 

Challenge decision on grounds of miscarriage of justice

One option for the Pekan MP is to challenge the court’s decision under Rule 137 of the Rules of the Federal Court 1995, which grants the apex court inherent power to, among others, review previous decisions on grounds of injustice and abuse of process. 

The rule specifically states: “For the removal of doubts, it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court.” 

For this rule to be triggered, Najib’s counsel will have to file an application to the court to review his case and prove that there was a breach of natural justice during the legal process.

Former Malaysian Bar president Salim Bashir Bhaskaran said the Federal Court will only consider reviewing a case if it is satisfied that the applicant has suffered a serious miscarriage of justice. Should it decide in Najib’s favour, the case will then be reheard before a different panel. 

However, it should be noted that a review will only be considered in very exceptional cases, he added, with history showing that there is a very slim chance of the court even accepting an application.

Speaking to The Vibes, lawyer Fahri Azzat said in Najib’s case in particular, it is extremely unlikely that Najib will succeed in his bid under Rule 137, if he decides to do so, considering his appalling actions deemed to have made a mockery of the court process during his final appeal in the past couple of weeks. 

“Even in ordinary cases, lawyers would usually advise their clients that such an attempt (to use Rule 137) is a waste of time and money. 

“The court is not just going to review, there must be grounds for revision. But given the conduct of both the accused and his counsels, behaving so contemptuously, I don’t see how they are going to frame their grounds for review.”

Apart from applying to recuse the chief justice, Najib's defence team had also on multiple occasions attempted to postpone his final appeal, while his lead counsel, Hisyam Teh Poh Teik, applied to discharge himself in an apparent desperate bid to delay proceedings. 

Seek royal pardon

Najib’s second option comes in the form of a royal pardon, a move that was famously employed by his political rival, PKR president Datuk Seri Anwar Ibrahim, in May 2018 following Pakatan Harapan’s election victory. 

Article 42 of the federal constitution provides the Yang di-Pertuan Agong and state rulers the power to grant pardons, reprieves and respites in respect of all offences which have been tried. 

For Najib to qualify for this, an application has to be filed to the Pardons Board, which consists of, among others, the attorney-general. 

The king will then be guided by recommendations made by the board before making a decision, a process that could potentially take years. 

The king, however, is not obliged to heed the advice of the Pardons Board and has discretionary powers to make his own decisions, based on the overarching interest of justice, public interest and conscience. 

Essentially, the granting of pardon is a vestige power accorded to the monarch. It removes all punishments for the offences committed, as well as any disqualifications as a result of a sentence, Salim Bashir said.

Article 48(1)(e) of the constitution stipulates that any MP who is convicted of an offence and sentenced to prison for not less than a year will lose his Parliament membership.

According to lawyer New Sin Yew, Najib’s status as Pekan MP would remain for 14 days, and the lawmaker would only be disqualified if there was no petition filed within the period. Should he file a petition, he will continue to be an MP until the pardon process is completed. 

So what happens next? Najib's status as MP Pekan remains intact for at least the next 14 days. If there is no petition for pardon within the next 14 days then he will be disqualified. If Najib applies for pardon then he will remain as an MP until and unless the pardon is denied.

— Sin Yew (@S_Y_New) August 23, 2022

However, considering the gravity of Najib’s offence and the overwhelming evidence of corruption against him, it is unlikely that a sitting Agong would take the risk of granting the Umno man a pardon, particularly as his case has attracted global attention. 

Apart from the completed SRC International proceedings, Najib still faces four other trials, namely the 1Malaysia Development Berhad graft case, the tampering of an audit report of the state investment arm, criminal breach of trust involving International Petroleum Investment Co, and three other additional charges related to SRC international. – The Vibes, August 23, 2022