Guest Editorial: Thaksin and Lula Freedom Help Najib’s Case For Early Release

Joe Fernandez

This is an interesting article that postulates Najib Razak could be released on 23rd August this year. This is worth reading, as this scenario is in the realm of probabilities.

Former Prime Minister Najib Razak merits one third remission on jail sentence just like former Thai Prime Minister Thaksin Shinawatra, there are parallels in law and discretion as both are former heads of government! And then there’s the case of Brazil President Lula da Silva who was released from jail by UN Review!

Commentary And Analysis . . . There’s news that former Thai Prime Minister Thaksin Shinawatra will be released after jail sentence was cut by a third, and there’s time off for good behaviour, age and health issues. This can probably help former Prime Minister Datuk Seri Najib Tun Razak win freedom as early as 23 August this year.

There are also parallels between Najib, who has filed Petition for UN Review on Arbitrary Detention, and Brazilian President Luiz Inacio Lula da Silva who was jailed nine years after he lost the presidency previously. He was freed in 2021, after UN Review, just before the presidential election.

Najib was jailed, unrepresented, on 23 August 2022 by Five Person Federal Court Appeal Panel headed by Chief Justice (CJ) Tun Maimun Tuan Mat.

In the wake of positive developments on the Thaksin case, Najib’s freedom cannot be in 2026 after one third remission on the original 12 year jailing, and serving half the remaining jail time. His freedom would be in 2028 as per the letter from the Pardons’ Board on the 29 January meeting which halved the sentence. The letter indicated no remission.

Thaksin

There are parallels, in a way, on the Thaksin and Najib cases.

Thaksin, based on new procedures, merits one third remission on jail sentence. The King has sole Discretion.

Taksin to be released from prison on Sunday 18th February

Najib

Najib, if we read the letter from the Pardons’ Board on the 29 January meet correctly, will not get one third remission after Agong halved the 12 year jail sentence. He will be released on 23 August 2028. If the one third remission applies on the halving, the former Prime Minister will be released on 23 August this year. In law, Article 8 in Malaysia, there can be no discrimination.

It’s not clear that Najib merits Full Royal Pardon, i.e. on 23 August 2024, after the jail sentence had been halved by Agong, and if not, questions arise on the sentence now reading longer compared with the original 12 year jailing.

Emeritus Prof Dr Shad Saleem Faruqi, Holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya, has op-ed on Najib’s release date.

Shad Faruqi said the “one-third remission rule cannot apply to Najib”. That implies that once there’s sentence reduction, there cannot be remission.

Shad Faruqi said as follows, “under Section 43 of the Prisons Regulations 2000, a prisoner sentenced to a term of imprisonment exceeding one month may be granted remission of one-third of his sentence for good behaviour. However, this is subject to the terms of an order of the Pardons Board, and that order was to release him (Najib) on 23 August 2028.”

“The Najib camp may succeed in obtaining a discharge not amounting to acquittal (DNAA). The vicissitudes of the law are many and that opens up possibilities for parties on both sides of the political fence,” added Shad Faruqi.

There are contradictions, disorientation, confusion and chaos on Najib’s plight in jail.

Shad Faruqi does not explain the grounds for the DNAA, i.e. away from Agong, after the Federal Court Appeal had ruled on 23 August 2022. DNAA and DNA, generally, comes before ruling.

Malaysia isn’t jurisdiction that can comply with the rule of law. It’s because lawyers generally lack skills for law practice and probably have few skills, if any, in the court room. They fall back on the letter of the law, by itself, as law. The court has no options if both sides are “equally hopeless” in submission.

Istana Can Clarify

The 23 August date can’t be changed. Najib was jailed, unrepresented, on 23 August 2022. Any release date must take the cue from 2022.

So, going forward, which year applies now for Najib’s release? 2028, 2026 or 2024? Istana can clarify.

Agong would tweak the Pardons Board letter on the 29 January 2024 meeting and release Najib on 23 August this year Wikipedia image

There’s immediate task that Najib faces in the coming days, with or without lawyers, on Agong’s Decree for freedom. Istana can say that where the letter from the Pardons’ Board reads 23 August 2028, it should be read as 23 August 2024.

If Najib’s sentence had not been halved on 29 January, Agong would tell him albeit indirectly that he wasn’t eligible for Pardon until he has served half the remaining sentence. In that case, the Istana would conclude that conviction has been perfected in law for perfection in law.

If push comes after shove, Agong must tweak the 29 January Decree and perfect the flawed declaration as reflected in the Pardons’ Board letter on the Petition for Pardon. Again, the letter informed Najib that freedom would be delayed until 23 August 2028. The Prisons’s Dept received copy.

The High Court, in passing sentence on 28 July 2020, set no release date.

Agong halved the 12 year jail sentence, by Decree, on the controversial conviction involving the RM42m SRC International case. Najib’s RM210m fine was reduced. It now stands at RM50m, in default additional one year jail, running concurrently with the six years halved sentence.

Calculations

Let’s get into the calculations again. Under the original 12 year jail sentence imposed by the High Court, Najib would be free on 23 August 2026 as per procedures i.e. four years after jailing. Four years would be shaved off for weekends, public holidays and good behaviour. Najib serves only half the remaining 8 year sentence.

However, based on Agong’s allegedly flawed Decree — unsafe in law — the former Prime Minister may only be freed on 23 August 2028, as per letter from the Pardons’ Board.

If the Pardons’ Board maintains that Najib will only be eligible for early release and/or parole on 23 August 2028, after the 12 year jail sentence had been halved, that’s worse fate for the former Prime Minister.

Full Royal Pardon

Najib’s defence team, awaiting firm Client instructions, stands ready in the above video link for lodging another Petition for Full Royal Pardon, whatever it means.

The Petition for Full Royal Pardon, if true, might be another flawed appoach. Najib’s conviction on the RM42m SRC International case wasn’t perfected in law for perfection in law. Pardon, if granted, would render redundant any Najib bid in court for compensation arising from arbitrary detention since 23 August 2022. Also, based on the original 12 year jail sentence imposed by the High Court on 28 July 2020 and the jailing which began on 23 August 2022, Najib merits Full Royal Pardon only on 23 August 2026 i.e. if conviction had been perfected in law for perfection in law.

Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli ruled DNA (discharge and acquittal) for Najib on 31 March last year. Judge Sebli, in ruling out retrial as pointless, discovered many transgressions.

There was no majority ruling. The majority struck out the judicial review on the grounds that the court had no jurisdiction when Review was argued as Appeal. Again, there was only one Ruling i.e. by Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli. DAP lawmaker Ramkarpal Singh dismissed Debate with Najib on the grounds that there was 4 vs 1 ruling during the Federal Court Review stage. There was no 4 vs 1 ruling. Dismissal of case isn’t ruling.

Suspended and retired Court of Appeal Judge Hamid Sultan Abu Backer, likewise, expressed dismay over the manner in which Najib was treated by the court.

Letter Of Representation

Najib, in response to the letter from Pardons’ Board on 29 January 2024, can file letter of representation directly with Agong for Decree, based on Discretion, for Freedom. He can cite the special circumstances based on flawed Decree on 29 January.

Najib, being former Prime Minister, should in fact push for Agong’s Decree for Freedom ala Judge Sebli and related reasons, based on Discretion, and not Pardon per se.

Again, the RM42m SRC International case wasn’t perfected in law for perfection in law. Najib was jailed, unrepresented, on 23 August 2022. Pardon implies conviction. That comes under the jurisdiction of the Pardon’s Board. It changes the Equation and dynamics as there are strict timelines for freedom via Pardon. Agong has no Discretion on the matter although it — i.e. Pardon — would still involve Decree.

The former Prime Minister should not file Petition with Agong for Pardon. In Malaysia, unlike in America for example, Pardon implies admission of guilt. Najib has chance to get compensation for arbitrary detention if Agong’s Decree for Freedom, based on Discretion, was granted.

Ex-DAP MP Tony Pua faces sedition charges on allegedly mocking Agong for allowing 50 per cent reduction in Najib’s 12 year jail sentence based on the DNA (discharge and acquittal) Ruling by Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli.

Najib, in the wake of DAP MP Ramkarpal Singh’s unsavoury remarks on the former winning imminent freedom, has rightly challenged the latter for public Debate on the RM42m SRC International case. The issue was whether Najib deserves full Pardon.

The dispute on the 23 August 2024 release date, if any, can be resolved by the High Court. Najib’s family can file habeas corpus Application. The Ganja King case refers.

It must be stated in no uncertain terms that there’s great risk, if sanity doesn’t prevail before 23 August this year, that Najib again may be left worse off by the Petition for Full Pardon heard on 29 January. — NMH

Joe Fernandez

Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.

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