Tuesday, September 06, 2022

Najib's Pardon? Would it undermine Malaysian laws and Courts?

Najib broke Malaysian laws, whilst he was Prime Minister and member of the Cabinet - that is certain now after the case have gone through all the appeals... and the sentence too have been confirmed. Note that he was really sentenced to 72 years in prison, but because the court ruled that his sentence was to run concurrently, he only needs to spend 12 years in prison.

Ex-PM Najib sentence of 72 years imprisonment, beats ex-DPM Anwar's 1999 corruption conviction and sentence of 24 years?

Now, Najib has sent a petition for pardon - and if the King grants him a pardon, he may be out in months....? 

Does Najib acknowledged his crimes - is he sorry?  A pardon should generally come into play if one is repentant - hence his sentenced shortened.... Of course, in exceptional cases, pardon is given for miscarriage of justice...when an innocent man is wrongly convicted.

Remember that the Court only convicts any person if the case is proven beyond reasonable doubt  - a very high standard. If there was any little reasonable doubt, then even a 'criminal' will not be convicted. Thus, when a 'criminal' is not charged or convicted or acquitted - it does not mean he/she is really innocent - it simply means that the prosecution did not manage to get sufficient evidence to prove the crime beyond reasonable doubt...that is all.

As such, when the prosecution after charging a person suddenly decides to discontinue a case, acquittal should never be granted more so for corruption, money laundering and similar offenses - a Discharge not Amounting to an Acquittal(DNAA) is just. An acquittal means the said person can NEVER EVER be charged for the same offence, even if the prosecution manages several weeks/months later to secure sufficient evidence to prove guilt beyond reasonable doubt. 

Prosecution should never charge anyone until it believes that they have obtained sufficient evidence to prove guilt beyond reasonable doubt  -  so, a discontinuance usually is because after charging, it lost evidence - or maybe some new evidence has emerged that proved that their conclusions were wrong. Was the loss of evidence that lead to the discontinuation of the criminal case of our former chief spy? 

High Court’s Acquittal of former spy chief, overturning the DNAA ordered by another High Court undermines Justice and raises questions - MACC was still gathering evidence, but now cannot re-charge because of the Acquittal (MADPET)

Former Spy Case - MACC officer stole monies from evidence, and replaced with counterfites - jail 3 years only?


Now, in Najib's case, the issue of Pardon arises when the Speaker decided that Najib still is Pekan Member of Parliament 

Article 48 - Malaysian Federal Constitution

(1) Subject to the provisions of this Article, a person is disqualified for being a member of either House of Parliament if -
(a) ...
(e) he has been convicted of an offence by a court of law in the Federation (or, before Malaysia Day, in the territories comprised in the State of Sabah or Sarawak or in Singapore) and sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon; or...

(4) Notwithstanding anything contained in the foregoing provisions of this Article, where a member of either House of Parliament becomes disqualified from continuing to be a member thereof pursuant to paragraph (e) of Clause (1) or under a federal law made in pursuance of Clause (2) -

(a) the disqualification shall take effect upon the expiry of fourteen days from the date on which he was -

(i) convicted and sentenced as specified in the aforesaid paragraph (e); or
(ii) convicted of an offence or proved guilty of an act under a federal law made in pursuance of Clause (2); or

(b) if within the period of fourteen days specified in paragraph (a) an appeal or any other court proceeding is brought in respect of such conviction or sentence, or in respect of being so convicted or proved guilty, as the case may be, the disqualification shall take effect upon the expiry of fourteen days from the date on which such appeal or other court proceeding is disposed of by the court; or

(c) if within the period specified in paragraph (a) or the period after the disposal of the appeal or other court proceeding specified in paragraph (b) there is filed a petition for a pardon, such disqualification shall take effect immediately upon the petition being disposed of. 

Well, Najib seem to have filed a Petition for a Pardon > and until the Petition is disposed off, he will remain the Pekan MP - and he will continue to receive his monthly allowances...

Is this JUST - or should we push for the repeal of Article 48(4)(b) - which means after all court appeals are over, he immediately ceases to a Member of Parliament? There is currently no time limit set for petitions for a pardon be disposed off - will it be months or years?

Should the KING pardon him so fast ending in him being released from prison fast? Well, that will sadden me and many others - What use of laws? What use of trials, appeals and courts - if a guilty person sentenced to 72 years, now having to serve only 12 years as the courts ordered all sentence to run concurrently and not consecutively?

Now in terms of Pardon - it is not a matter that the KING can act on his own - and as such he must act on the advice of the Pardons Board. So, if the Pardons Board says release Najib, the King has to release Najib. So, who exactly is in the Pardons Board..

It is 

(a) The Attorney General( who can delegate his functions as a member of the Board to any other person).

(b) The Minister responsible for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya (currently Federal Territories Minister Datuk Seri Shahidan Kassim); and 

(c) 3 others appointed by the King for a term of 3 years. [I do not know who this 3 are)

Shahidan Kassim is a UMNO MP - how will he decide when it comes to former PM and former UMNO President Najib?

Now Article 42(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di- Pertuan Agong shall accept and act in accordance with such advice. 

The specific instances the King really acts on his own - (a) the appointment of a Prime Minister; (b) the withholding of consent to a request for the dissolution of Parliament; (c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting, and in any other case mentioned in this Constitution.  

Did the King appoint the 3 other members of Board - or were they appointed on the advice of the Prime Minister? How does the Pardons Board decide - simple majority?

In any event, if Najib were to be pardoned now, it will have an impact on the law and the courts. What use trials if the 'guilty' can speedily be pardoned? Should we have a law, that the 'guilty' should generally not be pardoned until he has served at least 50%(or 75%) of his sentence? Things to think about.

Once, the final appeal is over, a MP should be disqualified - repeal Article 48(4)(b) that delays disqualification simply because a petition of pardon has been filed.

Government of the day should really not be seen as abusing their power by 'pardoning' their political party leaders and/or family members. I condemn the pardon of Anwar Ibrahim by PH, and hope that similar things not be repeated.

Another question - should a person in prison be allowed to contest and become a MP or ADUN > personally, I leave it to the voters of the constituency. Although unable to attend Parliamentary sessions, he/she can still participate virtually - he/she can still submit parliamentary questions...so, if the voters chose him/her as their MP/ADUN, what is the problem. Of course being appointed into State or Federal Cabinet may be denied.

When a MP or member of Cabinet is convicted of an offence whilst in office, which was an abuse of power, should we also make provisions to CANCEL all his pension entitlements > Why should Malaysia continue to pay pension to Najib until he dies, and the sum would be large...? 

When it comes to corruption, money laundering and abuse of power, the State may be able to get convictions for some, not all - possibly because of difficulty finding sufficient evidence? This is not like a crime of murder - it is so easy to hide - read the Auditor General's report >> so many cases of abuse, but how many successful convictions?




Najib still Pekan MP until pardon petition finalised, says Speaker

  • Nation
  • Monday, 05 Sep 2022

PETALING JAYA: Datuk Seri Najib Razak (pic) will remain Pekan MP until his appeal petition is finalised, says Tan Sri Azhar Azizan Harun.

The Dewan Rakyat Speaker said he had received the submission of several documents on the matter.

"I have received a copy of the pardon application under Article 42 of the Federal Constitution, for Datuk Seri Najib Razak, who is the Pekan MP, dated Sept 1; a copy of a letter from Messrs Shafee & Co dated Sept 1 which attached the pardon application accepted by the Prime Minister's Department, Legal Affairs Division's director-general on Sept 2; and a copy of each sealed Criminal Order for the appeal case in the Federal Court dated Aug 23," he said in a statement on Monday (Sept 5).

"In this case, a conviction order and the sentence of the High Court which was upheld by the Court of Appeal and the Federal Court against Datuk Seri Najib Razak is confirmed."

ALSO READ: Clock ticks for Najib in Pekan

Azhar added that according to Article 48(1)(e) of the Federal Constitution, any MP convicted of an offence by a federal court and sentenced to imprisonment for not less than one year or fined not less than RM2,000 will be disqualified as an MP.

Najib was sentenced to 12 years' imprisonment and fined RM210mil in the SRC International Sdn Bhd case.

"The validity of Article 48(1)(e) of the Constitution is subject to the provisions of Article 48(4) PP and Article 53(2) PP.

"In this regard, Article 48(4)(c) provides that if a pardon petition is filed by the MP concerned within 14 days from the date the appeal is decided, the disqualification of the MP will only take effect once the pardon petition is settled (if the petition is rejected).

ALSO READ: Two possible scenarios now for Najib

"Therefore, considering that the pardon petition was filed under Article 42 on Sept 2, which is within 14 days from the date of the Federal Court's decision, his disqualification (as MP) will only commence once the pardon petition is settled (in case the petition is rejected).

"This means that his status as Pekan MP has not changed at this time, and will only be finalised when the appeal petition is settled," he said. - Star, 5/9/2022



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