KUALA LUMPUR, Feb 7 — Lawyer Tan Sri Muhammad Shafee Abdullah has today announced that his client, convicted former prime minister Datuk Seri Najib Razak, will consider another application for a full pardon.
Despite his prison sentence and fine reduced by the Pardons Board, Shafee said Najib insisted that he had not been given a fair trial after changing his legal team and was unclear if the Pardons Board had undergone a consistent process for its decision.
“But the law is clear that the royal prerogative of mercy is the sole discretion of the Yang di-Pertuan Agong. It is unfettered and non-challengeable in any court. This is trite law. But due to the inconsistencies pointed out many members of the public are rather concerned. Datuk Seri Najib is most baffled.
“As a result of these unsatisfactory features we are looking at another application for a full royal pardon. We will decide when we will put in the application. We will have sufficient grounds including some new ones,” Shafee told a press conference at the High Court here.
Clarifying further Shafee said there have been various controversies raised by the public, while some are justified, mostly are not.
“Certain groups have raised a question of whether Najib deserves the partial pardon including the reduction of sentence and fine.
“Some have even said, rather ignorantly, that since Najib has not apologised nor pleaded mercy for his crime, his pardon ought not to be considered.
“Our simple answer is that the basis of our application for pardon is not anchored on any fact of admission of guilt. They are anchored on the fact that he is not guilty and has never been given a fair trial and appeal, especially at the Federal Court.
“In the Federal Court, as you are aware, Najib’s counsel was not given the adjournment they requested as they were newly appointed and the Federal Court proceeded to hear the appeal without any submission made by Najib’s counsel,” he said.
He added that while the Court recognised that Najib was not to be blamed but rather blamed the new counsel and solicitors.
“Further, the Court did not find Najib of being in complicity with his lawyers to cause a tactical manoeuvre for adjournment.
“Therefore, it is our client’s (Najib) position that he ought to be given a free pardon as he ought to have been given a discharge and acquittal in view of the lack of fair trial or appeal or due process,” Shafee said.
He cited an example in the past whereby the Federal Court decision in Lee Kwan Woh (2009) 5 MLJ pas 301 where in a drug trafficking case, at the end of the prosecution’s case, the accused counsel was not invited to submit of no case to answer because the judge thought that the case for the prosecution was overwhelming.
“His conviction subsequently by the High Court (and confirmed by the Court of Appeal) was set aside by the Federal Court as the Federal Court said that the deprivation of submission at the end of the prosecution’s case was a fundamental breach of of guarantee of fair trial and due process as provided under Article 5 of the Federal Constitution.
“In our case, there was a total deprivation of the entire submission of Najib at the final appeal. It is for that reason the Federal Court Judge Tan Sri Datuk Rahman Sebli decided that Najib did not have a fair trial and acquitted and discharged him forthwith,” Shafee said.
In addition, he called out Bar Council for their disappointing press statement whereby he claimed has no substance.
He said the Bar Council failed to recognise the total lack of due process when Najib’s new counsel was not given sufficient and reasonable time to prepare for a final submission.
“The Bar did not even deal with the clear dissenting view of the Federal Court Judge Tan Sri Rahman Sebli, especially in the context of a certain murder cases in the Federal Court, whereby the Federal Court readily granted adjournment when counsel for one of the accused/appellants was just appointed requested for adjournment.
“The Bar Council is ignorant of the law relating to Royal Prerogative of mercy in relation to pardon. It is an absolute and unqualified power and discretion, and the Yang di-Pertuan Agong need not accept the opinion or advice of the members of the Board,” Shafee said.
Shafee also responded to an academic opinion that because the earliest date of release of Najib would be on August 23, 2028, and the extended date in the event of the RM50 million fine is not paid, to be August 29, 2029, Najib is therefore not entitled to the one-third remission rule under Regulation 43 of the Prisons Regulations 2000.
“We disagree with this view. It is always the practice even of the Courts to hand down a definite period of imprisonment.
“There are times where the Court would say that the term of imprisonment would expire on a certain date because the Court had calculated the duration imprisonment to be taking effect from the date of arrest and confinement.
“In those context, Regulation 43 pertaining to remission still applies. We see no distinction in the Pardon’s Board specifying the last date of Najib’s imprisonment. Remission nevertheless is applicable,” he said.
Meanwhile Shafee confirmed that Najib has not paid any part the fine.
He said it is public knowledge that ‘the money’ went to welfares and political works.
“There is no money that went into his [Najib] pocket. See a lot of people have forgotten about this, (they say) let’s punish him because he has taken the money. The question is, did he take the money?
“And that is consistent with what he said. ‘I thought this money came from the Saudi Arabia King’ because in the presence of three other ministers there was a promise for financial health to bring about the Malaysian government into a moderate government which he [Najib] led.
“So because of that when the money came in exactly as promised, he spent it on political matters, welfare and he has helped a lot of poor throughout the country. But nothing he kept. And to put a cream on the icing, you see he received 689 million US$ you convert that it becomes RM2.6 billion.
“He used a portion of it for the election welfare and he returned 620 million US$ which is about 75 per cent of what he received back to the account that he thought donated to him. So, can you actually as what Dr Mahathir (Tun Dr Mahathir Mohamad) said that this is the work of a ‘penyangak’. This must be a real gentlemen penyangak — he took money and returned it — returned the money that is not his,” he said.
On February 2, the Pardon’s Board halved Najib’s sentence from a 12-year prison term to six years for misappropriating funds amounting to RM42 million, which means he may be released earlier on August 23, 2028.
Najib has been imprisoned since August 23, 2022, after the Federal Court upheld his conviction for criminal breach of trust, power abuse and money laundering over the misappropriation of SRC International Sdn Bhd’s funds.
The Pardon’s Board said it had also decided to reduce his RM210 million fine to RM50 million, and his early release would be contingent on him paying this amount.
If he fails to do so, his early release date will be a year later on August 23, 2029.
He has been a prisoner for more than one year and five months now since August 2022, and his 12-year jail term was initially due to end in 2034.
Najib still has an ongoing trial involving 1 Malaysia Development Berhad (1MDB) funds worth RM2.27 billion in which he has been charged with four counts of abuse of power and 21 counts of money laundering.
