KUALA LUMPUR – Malaysia’s highest court will soon reach its final and incontestable conclusion on whether to uphold former prime minister Najib Razak’s landmark corruption conviction, a ruling that will leave the influential ex-leader either firmly emboldened as he mounts a political comeback or forced to adjust to life in a jail cell.
Lawyers for the 68-year-old politician recently filed a last-ditch bid to nullify his conviction and 12-year prison sentence handed down in July 2020 over the misappropriation of 42 million ringgit (US$9.5 million) from SRC International, a now-defunct investment vehicle of the infamous 1Malaysia Development Berhad (1MDB) state fund.
Najib’s legal team contends that the judge who handed down the historic ruling, Mohd Nazlan Mohd Ghazali, should be disqualified for a purported conflict of interest due to his previous stint as the general counsel of Maybank Group, a commercial lender to 1MDB that had played an advisory role in the establishment of SRC International.
A probe into the same sitting judge by the government’s anti-graft agency in response to unsubstantiated claims leveled by a fugitive blogger that Nazlan had pocketed stolen 1MDB funds has, meanwhile, shaken Malaysia’s legal fraternity and prompted the country’s chief justice to push back against “scurrilous attacks” leveled against the judiciary.
More than 300 lawyers staged a march in Kuala Lumpur on June 17 to protest the investigation by the Malaysian Anti-Corruption Commission’s (MACC) into Nazlan, which organizers the Malaysian Bar say is an unconstitutional breach of judicial independence and contrary to established legal mechanisms to deal with complaints of judicial misconduct.
Legal experts argue the complaint against Nazlan should have been referred to a judicial ethics committee established in 2009 specifically to investigate allegations against sitting judges. Other see the MACC probe as an example of attempts to intimidate judges presiding over high-profile cases in order to secure favorable rulings for politically prominent individuals.
“It is clear that the executive arm is being used to pressure the judiciary,” said constitutional lawyer Surendra Ananth. “To allow investigative bodies to investigate sitting judges at their whims and fancies would give the impression that the judiciary can be suborned to the executive. As far as I am concerned as a lawyer, what is being done is against the law.”
Critics say the MACC’s decision to publicly announce the probe in April without a prima facie case first being established had handed political ammunition to Najib, whose lawyers have sought to discredit Nazlan in court, arguing that the judge had “failed, neglected or omitted to make a declaration of his personal involvement” in the SRC International case.
Ananth told Asia Times that it was “public knowledge” that the judge had served as Maybank’s former general counsel prior to hearing the ex-premier’s case. “No issues were taken then. I don’t see this as an actual conflict but rather, if at all, an apparent bias which I don’t think can be made out based on the material available to the public.”
The probe into Nazlan has overlapped with a broader credibility crisis facing the MACC and its chief commissioner Azam Baki, who in January found himself ensnared in a shareholder controversy after a whistleblower whom he later sued for defamation had highlighted his alleged ownership of two million shares in a publicly listed company.
The MACC leadership declared the claims to be “politically motivated” while a defiant Azam refused calls to go on leave after denying that he was the beneficial owner of the stocks. He claimed that the shares, valued at an amount far exceeding what civil servants are allowed to own, were purchased in Azam’s name by his younger brother.
Azam was expeditiously cleared by the Securities Commission, which said it was unable to establish conclusive wrongdoing in the case. A bipartisan Parliamentary Select Committee had subpoenaed Azam over the controversy but postponed the hearing due to Azam’s objection that the matter would be heard in court during his defamation suit.
The swift dismissal of potential corruption allegations against Azam and the MACC’s subsequent probe into Nazlan based on what were widely seen as spurious claims of “unexplained wealth” allegedly received from 1MDB-linked fugitive Low Taek Jho have deepened concerns over political interference in Malaysia’s institutions, say observers.
Nazlan, who as a High Court judge ruled Najib guilty of seven offenses including abuse of power, criminal breach of trust and money laundering, lodged a police report against the author of the claims, blogger Raja Petra Kamaruddin, who has lived in self-imposed exile in the United Kingdom since 2009 after failing to appear in court to face sedition charges.
The judge, who was promoted to the Court of Appeal in February, has denied the allegations against him as false, baseless and malicious. The MACC, which said it had launched the probe into Nazlan as a matter of procedure, submitted the findings of its investigation to the Attorney-General’s Chambers in late May. A decision on the case is pending.
“Dragging the judge concerned through the mud – on a mere allegation which first arose from a discredited pro-Najib blogger – is wholly unfair,” said Lim Wei Jiet, a lawyer and author of several publications on constitutional law, and vice president of youth-led opposition party the Malaysian United Democratic Alliance (MUDA).
“The public announcement of the probe together with a series of other events clearly show a pattern of intimidation against the judiciary orchestrated by those who wish to avoid imprisonment for crimes committed. There is a message that is being sent to the judges hearing Najib’s appeal as well as other high-profile politicians from the ruling party.”
In 2018, voters rejected Najib’s nine-year premiership at the ballot box, handing the United Malays National Organization (UMNO) its first-ever defeat after 61 years of continuous rule. The historically dominant party managed to retake power through parliamentary maneuverers last August, even as its senior-most leaders face graft charges.
UMNO president Ahmad Zahid Hamidi, a key Najib ally, is currently on trial facing 47 charges involving criminal breach of trust, corruption and money laundering unrelated to 1MDB. Though he has yet to be convicted, he has been unable to take a cabinet position in the current UMNO-led government, which has only a narrow governing majority.
Despite their legal troubles, Najib and Zahid remain popular with grassroots party supporters – arguably more so than incumbent Prime Minister Ismail Sabri Yaakob – and have aggressively lobbied for an early general election to capitalize on dysfunction in the opposition camp and renewed support for UMNO and its Barisan Nasional (BN) coalition.
But the two scandal-tainted politicians also risk being unable to stand for elections if the criminal convictions against them are upheld. With pending court rulings threatening to end their political careers, analysts say their strategy is to bolster UMNO’s seat count at snap polls while dialing up pressure on the executive to intervene in their legal cases.
Constitutional lawyer Lim says Najib’s defense team is now attempting to “prolong the outcome of [his] appeal with the aim of delaying it until after the general election,” namely by filing a motion for a queen’s counsel (QC) from the UK to represent the ex-premier in his final SRC International appeal, which the Federal Court is scheduled to hear in August.
Lead counsel Muhammad Shafee Abdullah said a QC, a title given to distinguished senior trial lawyers within the Commonwealth, would help “evolve and mature” Malaysian jurisprudence and is necessary given that the SRC International case involves “several novel points which had never been decided by Malaysian courts.”
Prosecutors have opposed the application on grounds that the QC sought by Najib’s defense team, Jonathan Laidlaw, isn’t fluent in Bahasa Malaysia, the national language, and they argue that lawyers within the country possess the legal expertise to deal with the issues raised in the appeal. The High Court is due to hear Najib’s QC representation motion on July 6.
“It is highly unlikely that the Federal Court – QC or no QC – would overturn the SRC conviction,” said legal scholar Joe Fernandez. “At best, the Federal Court would set aside the High Court conviction, rule mistrial, and send the case back to the High Court to be heard before a new judge. Alternatively, the Federal Court can hear the case.”
Najib, who denies any wrongdoing, remains the only person convicted in connection with the 1MDB scandal in Malaysia’s courts. In December, the Court of Appeal upheld Nazlan’s ruling, with the appellate court’s lead judge pronouncing that the former premier had done less to advance the national interest than to produce “national embarrassment.”