What happens to his position as an MP?

Because of his conviction, and the nature of his sentence, Najib is automatically disqualified from being an MP. The duration of imprisonment is for more than a year. Additionally, he has to pay a fine larger than RM2,000.00.¹Article 48(1)(e) of the Federal Constitution

But there is a catch to this: his position as MP can be preserved if he receives a ‘free pardon’.²Article 48(1)(e) of the Federal Constitution 

Other than that, Najib has two main options at his disposal. Let us deal with the legal option.

First Option: File a Review Application

Najib can choose to ask another panel of Federal Court judges to Review the Federal Court’s decision.

Najib’s counsel hinted at it earlier, but did not elaborate.

The Federal Court may review its own decision if Najib can show one of 8 grounds

The  Federal Court may, on rare occasions, review its own decision in one of eight circumstances. This is where:-

[1].    there is procedural injustice;³

Megat Najmuddin bin Dato’ Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385;

Raja Prithvi Chand Lall Chaudhary v Sukrai AIR 1941 FC 1
cited, in, inter alia, Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2020] MLJU 2626

[2].    the earlier decision is ‘tainted by bias’;⁴Taylor & Anor v. Lawrence & Anor [2002] 2 All ER 353

[3].    ‘due process had been corrupted’;⁵Taylor, supra

[4].    is a ‘jurisdictional error’;⁶Chan Yock Cher v. Chan Teong Peng [2005] 4 CLJ 29

[5].    the earlier decision had been obtained by dishonesty; ⁷ fraud or suppression of material evidence

[6].    there is a ‘clear infringement’ of the law;⁸ Adorna Properties Sdn Bhd v Kobchai Sosothikul [2005] 1 CLJ 565; PP v Denish Madhavan [2010] 5 CLJ 635).

[7].    there is ‘coram failure’ [or a ‘lack of quorum’];⁹Chian Tan Tek; Allied Capital Sdn Bhd v Mohd Latiff Bin Shah Mohd. & Another Application [2004] 4 CLJ 350, in particular the dissenting judgment of Abdul Hamid Mohamad, FCJ and

[8].    the earlier court had imposed ‘a sentence unknown to the law’. ¹⁰Chan Yock Cher v Chan Teong Peng [2005] 4 CLJ 29

The point that Najib is expected to push – and push hard – having regard to his last speech to the Federal Court, is that the Federal Court had ‘denied’ him justice. That complaint will fall under the rubric of ‘procedural injustice’ or decision by (an alleged) ‘biased’ panel.

From the way he and his counsel have argued the case, and his carefully prepared speech at the end – bristling as it does with case references no untutored layman will never even know – it is clear that he might raise

two grounds at the Review:-

(1) Denial of Justice; or

(2) Incompetence of Counsel.

We should not discuss here the merits of these arguments. That can be done after Najib’s application is disposed of.

How easy is a review application?

It is terribly difficult.

Although Rule 137 of the Rules of the Federal Court 1995 states that the  Federal Court has “inherent powers … to make any order … to prevent injustice, …,” the Federal has repeatedly ruled that it will only interfere ‘rarely’,¹¹ Chu Tak Fai v PP [2006] 4 CLJ 931 ‘with caution’, and under ‘very narrow grounds’.¹²Ibid

The courts all over the Commonwealth have always repeated that there must be a finality to a final court’s decision and that such a decision cannot be easily re-opened. ¹³Adorna Properties Sdn Bhd (supra); PP v Denish Madhavan [2010] 5 CLJ 635)

When will the court refuse a review?

In two circumstances the court may be exceedingly reluctant to intervene:-

[1].    where the Appellant had his appeal dismissed ‘on merits’;¹⁴Chan Yock Cher, supra; or

[2].    where the appellant has suffered a ‘Three Strikes’ fate,  or a ‘3-0’ score, (meaning, in a three-stage process, he has lost all the way). In those circumstances any final court, and especially a reviewing court, will accept the ‘concurrent finding of two (or here, ‘three’) previous courts.¹⁵Joceline Tan Poh Choo & Ors v V. Muthusamy [2008] 6 MLJ 621

So, Najib’s Review application depends, quite simply, on the application of the law to the facts.

And so, it is the easiest of all the issues.

If the Federal Court allows the Review, what results can Najib expect?

He may have his FC appeal reheard. To hope that there will be a re-trial from the start is a legal impossibility.

But let us wait and see what happens.

Second Option: Royal Pardon

Then one faces the difficult, but inevitable, question of a royal pardon.

This is a step Najib most probably will take.

Najib has very closely followed what Anwar Ibrahim has done. It is more than possible he will try the same method.

It is said to be a legal prerogative to be exercised solely by the monarch, without regard to the nation’s overall sentiments.

That is not the way pardons work, or are meant to work.

How is it done?

If Najib has committed the offence in the Federal Territory, Putrajaya or Labuan, the King can issue a pardon. If the offence is committed in any other state, the respective State Ruler or the Governor has that power.

This is what Article 42(1) of the Federal Constitution states:-

“The [King] has power to grant pardons, reprieves and respites in respect of all offences … committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the [State] Ruler or [the Governor] of a State has power to [do so] for [offences committed] in his State.”

You will note that there is no requirement that there must be a conviction first, before a pardon can be granted. Technically, it can be done even before a conviction is determined.

So the ‘reprieving’ power of the King is rather wide. And, unusually, it is not subject to any examination by the courts.

Yet, under the Federal Constitution, the Rulers and the King always act on the advice of the Pardons Board.

What might impress the Pardons Board?

 There are several procedures to comply with.

Usually, the relevant considerations are:

[1].  the accused’s previous conduct,

[2].  the reason for the crime, and

[3].  his antecedents.

You must ask yourself this question: which of these factors will assist Najib convince His Majesty the King?

The timing of the pardon is another crucial issue 

Suppose the pardon is granted before the elections, what might happen? Then Najib will be entitled to contest the elections.

He will, naturally, try to reclaim the BN leadership. UMNO is sufficiently weakened for him to mount a challenge; and he has the means to effect it.

If the pardon is to be granted after elections, then, during elections, someone else will stand in for him. Then, when Najib gets his post-election pardon, the nominee might resign. Then there shall have to be a re-election. Najib is expected to win on the principle of ‘Bossku’.

That seems to be the plan, anyway.

In this furious drama, Najib is but one minor player. The fate of democracy hangs in the balance. 

When we speak of pardons, there are larger issues at play

The most important question is, will the King pardon Najib, and if so, why? 

You might be right to think – if Najib is granted a pardon – then every politician who had breached his duty of trust, who has looted billions of dollars of your money, might, do the deed, then, as a first step, simply weather out a difficult criminal prosecution.

At the end of all that, all he has to do is to cast himself at the feet of the King, seeking a pardon because, as any criminal will say, “As a politician, I have carried out national service!” 

Indeed.

If those are the grounds, the pardon will become an open charter for thieves.

Now there is another serious issue

What if other cases start against him before that? They should.

Will the pardon then, extinguish all of Najib’s crimes? Any answer boggles the mind.

And so, the wheel of Destiny turns, lifting some, and crushing others.

But you see, the Hand that guides Destiny is not the Hand of Logic, or that of Political Power, but that of Providence.

While there are no easy answers, one thing is certain.

There will be ‘plans’, after ‘schemes’, after ‘strategy’.