While a single mother of four is jailed without any apparent judicial compassion for the theft of two packets of Milo, a convicted felon responsible for the theft of billions of Ringgit, remains free. Former prime minister Najib Razak, convicted in the SRC International case in the High Court July 2020, upheld in the Court of Appeals December 2021 is living in luxury, while on bail.
The above situation shows a deep difference in the way people are treated before the law.
The failure to jail former prime minister Najib after his conviction for abuse of power, money laundering, and criminal breach of trust has a number of consequences for Malaysia.
An alarming precedent
While petty criminals are given no leeway on a stay of execution of their sentences, Najib received VIP treatment. Najib was granted delays in the trial for trivial reasons, during the case and appeal. After his conviction, Najib’s bail was extended, and after the appeal, extended once again. While on bail after conviction, Najib even had his passport returned for a visit to Singapore for the birth of his granddaughter.
These privileges smack of entitlement. Similar treatment was granted to two former French presidents, who after many years never saw a jail cell. However, within the English law system, bail after conviction is extremely rare. Cardinal George Pell, formally the third highest ranked official in the Vatican was jailed in Melbourne Australia immediately after his conviction, to lodge his appeal from jail, which was eventually upheld in Australia’s court.
We can only speculate why Justice Nazlan Mohd Ghazali felt a need to respect the social status of Najib after his conviction and grant him a stay of execution, deferring any serving of time in jail. This precedent has been picked up by trial lawyers. One successfully cited it for a farmer Faiz Mohd Ruzeli, who was convicted of causing grievous hurt, but received a stay of execution of his sentence at the Court of Appeal in April this year.
This potentially opens the floodgates of those convicted to obtain stays of execution of their sentences until the appeals processes are exhausted. The integrity of the justice system as a deterrent is undermined, when serving any sentence can be held off for years.
The risk of portraying the court system as sandiwara (drama)
During the 2018 election, Mahathir Mohamed spearheading the Pakatan Harapan campaign harped on Najib’s guilt and wrong doing over the 1MDB issue. When Pakatan unexpectedly won the election, Najib was dramatically investigated (and even humiliated) through the media on a daily basis. This led to a high public expectation that justice would be served upon Najib.
However, counterintuitively the heavy-handed media approach for Pakatan’s political advantage also gave Najib a narrative to espouse, that he is being politically persecuted.
This is very much a twin edge sword. Many were disappointed that Najib was not jailed after his original conviction and appeal, some believing Najib would never face jail time. The other edge of the sword gave Najib credibility in his narrative that the SRC International trial was political in nature. Most of his rural followers don’t understand the complexities of such a case and gave him the benefit of doubt, believing Najib was facing the wrath of Mahathir, just like Anwar before him.
The failure to jail Najib actually exonerates him in the eyes of many of his supporters within the Malay heartlands. This is exemplified by the phrase created by his expensive media handlers, “Malu apa Bossku.”
Since the Court of Appeal decision, Najib has taken on an even higher profile. He rigorously campaigned in Melaka, and the Johor state elections, portrayed himself as a stateman with visits from international leaders, participated in a televised debate with the opposition Leader Anwar Ibrahim. All of this contributed to his persona as a politician who is persecuted.
Najib is playing internal politics to the hilt within UMNO. He is showing that as a powerful UMNO warlord, he is one of the most influential persons in Malaysian politics today. Depriving Najib of personal liberty would have stemmed his influence greatly and possibly changed the dynamics of the politics in Malaysia going on today.
In fact, it can be strongly argued that the prime source of political instability at this time is due to the manoeuvring of Najib, holding the current Ismail Sabri Yaakob government hostage.
The failure to jail Najib assisted him to reinvent his “Bossku” persona and become one of the most potent power brokers in Malaysian politics today. Had Najib been jailed, his influence would have greatly diminished, and perhaps the government today been a little bit more stable than it is presently.
Great cost to the integrity of the Malaysian legal system
The failure to jail Najib after such a high-profile case, has enormously dinted the integrity of the Malaysian judicial system both at home and abroad.
Members of the Malaysian Bar Association held a protest march to parliament, blocked by the police to demand judicial independence. Outside of Malaysia, some commentators view the Malaysian judicial system something akin to Thailand, Indonesia, and even Cambodia.
These images are almost unrepairable.
The Najib situation highlights a two-tier legal system
To many Malaysians, the privileges granted to Najib during and after the trial, highlights the existence of one set of laws and procedures for the elite, and another set for the rest. Some argue this is a sign of a failed state, while others argue this is a symptom of feudalism. Either one of the above interpretations is not a good image for the nation.
Damage done to the national sense of right and wrong
By far, the greatest damage done is the distortion of the sense of right and wrong for the nation. The cultural assumption that ‘crime can pay’ reinforces the culture of corruption plaguing the country. Najib’s freedom is glorifying the notion that ‘a crook can get away with it.’ This will have a generational impact upon Malaysia’s youth now entering the civil service. Everyday Najib is outside jail implicitly resonates the notion that white collar crime is victimless and “OK to do.”
Subliminally and unintentionally, the judicial system is saying white collar crime is less serious than other crimes. If this hypothesis holds, then corruption will increase over the rest of the decade, as Malaysian Anti-Corruption Commission (MACC) statistics already indicate.
This has weakened the institutions of the nation. It’s keeping Malaysia captive within the third world.
However, there is a remedy. A remedy that many UMNO leaders privately are talking about. That is to send Najib to jail as soon as possible, with an opportunity at his appeal to the Federal Court on 15th August, should his final appeal be dismissed.
Malaysia’s judges acted according to the law. However, they are strongly influenced by Malaysian culture and political dynamics. Showing compassion in the wrong place has grave national consequences.
Originally published in The Malaysian Insight 13th July 2022
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