Malaysia: Justice Undone – Asia Sentinel

By: Murray Hunter

At a time when an unnamed 43-year-old single mother of four was recently jailed in Malaysia for 14 months for the theft of two packets of Milo, former Prime Minister Razak, held responsible in the trial and appellate courts for the theft of millions of US dollars and still facing far more serious charges, remains free.

Najib, known to millions as “Bossku,” was convicted in the SRC International case in the High Court two years ago – in July 2020 – upheld in the Court of Appeals in December 2021. Nonetheless, he is living in luxury while on bail on a stipend of RM1 million after retiring as prime minister as provided under the Members of Parliament (Remuneration) Act 1980.

That is an ugly demonstration of the different ways the poor and the powerful are treated before the law. Nor is the unfortunate Terengganu woman alone. Malaysia’s prison system is bulging with impoverished offenders with no resources in the courts while the so-called “court cluster” of top United Malays National Union politicians who participated in looting the country prior to the 2018 election continue to romp free. 

While petty criminals are given no leeway on stays of execution, Najib has been granted repeated delays for trivial reasons both during the high court case and appeal. After his conviction, his 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 make a mockery even of entitlement. Within the English law system on which Malaysia’s judiciary is modeled down to the robes and wigs, bail after conviction is extremely rare. Cardinal George Pell, formally the third highest ranked official in the Vatican, was jailed in Melbourne, also under the English legal framework, 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 grant him a stay of execution, deferring any time in jail. This precedent has been picked up by trial lawyers, one of whom 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 for the convicted – at least those with money – to obtain stays until appeals are exhausted. The integrity of the justice system as a deterrent is undermined, with serving any sentence held off for years.

The risk of portraying the court system as sandiwara

During the 2018 election, Mahathir Mohamed, spearheading the successful Pakatan Harapan coalition that brought down the long-serving Barisan Nasional, harped on Najib’s guilt and wrongdoing over the issue of the state-backed investment fund 1Malysia Development Bhd, which lost at least US$4.6 billion to corruption and mismanagement and saddled the national treasury with vast debt. When Pakatan unexpectedly won the election, Najib was dramatically investigated and even humiliated through the media on a daily basis, leading to a high public expectation that justice would be served on Najib, his grasping wife Rosmah Mansor and many of the top leaders of the deeply corrupt UMNO, then the country’s leading political party, which has since returned to power.

This was very much a double-edged sword. Many were disappointed that Najib wasn’t jailed after his original conviction and appeal, some believing he would never face jail. 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 he was facing Mahathir’s wrath.

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” (Shy about what? I am proud of my boss).

But It is worth recalling what police found at Najib’s digs when they arrested him in 2018 on corruption charges. It wasn’t two packets of noodles. The loot included US$273 million worth of jewelry, handbags and other valuables, the biggest haul in Malaysian history by far and a pretty penny for a man whose salary as prime minister and member of parliament was roughly US$120,000 a year. Police filled five trucks with cash in 26 currencies totaling US$28.6 million plus 457 handbags, including Hermes bags worth US$12 million, 423 watches valued at US$19 million, and 234 pairs of sunglasses worth US$93,000. Included were 1,400 necklaces, 2,200 rings, 2,100 bangles, 2,800 pairs of earrings, 1,600 brooches and 14 tiaras. They didn’t get there magically. He is believed to have also spirited at least US$640 million and possibly as much as US$1 billion into banks in other countries.

Nonetheless, despite that, and despite the Court of Appeal decision, which basically said Najib had not a shred of excuse for his culpability, he has taken on an even higher profile. He rigorously campaigned for UMNO candidates in Melaka and Johor state elections, cementing his position as a party kingmaker while portraying himself as a statesman with visits from international leaders. Despite his felon status, he participated in a televised debate with the opposition leader Anwar Ibrahim. All of this contributed to his persona as a politician who is persecuted.

He is playing internal politics to the hilt, showing that as the top UMNO warlord, he is one of the most influential persons in politics today. In fact, it can be strongly argued that the prime source of political instability at this time is Najib’s maneuvering, holding the current Ismail Sabri Yaakob government hostage. Had Najib been jailed, his influence would have greatly diminished, and perhaps the government today would be stable than it is presently.

Great cost to integrity of legal system

The failure to jail Najib has also enormously dented the integrity of the judicial system both at home and abroad. Members of the Malaysian Bar Association held a protest march to parliament to demand judicial independence and integrity but were blocked by police. Outside Malaysia, some commentators view the once-proud judicial system as something akin to those of Thailand, Indonesia and even Cambodia. These images are almost unrepairable.

To many Malaysians, the privileges granted to Najib during and after the trial highlight the existence of one set of laws and procedures for the elite and another for the rest. Some argue this is a sign of a failed state, while others argue it is a symptom of feudalism. Neither is good for the nation.

By far, the greatest damage done is the distortion of the sense of right and wrong for the nation as the housewife’s jailing demonstrates. The cultural assumption that crime can pay reinforces the culture of corruption plaguing the country. Najib’s freedom is glorifying the notion that he is the crook who can get away with it, which will have a generational impact on Malaysia’s youth now entering the civil service. Every day 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, as Malaysian Anti-Corruption Commission (MACC) statistics already indicate. That has weakened the national institutions. 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. It is also a remedy that has almost no chance of being acted upon. Malaysia’s judges are strongly influenced by Malaysian culture and political dynamics. Bossku is likely to remain free.