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'Why Is He Not In Jail?': We Get A Lawyer To Answer Some Burning Questions About Najib Razak's Trial

Common questions answered.


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'Why Is He Not In Jail?': We Get A Lawyer To Answer Some Burning Questions About Najib Razak's Trial

All you need to know about Najib Razak's Trial.


Everyone is talking about the SRC International trial and how former Prime Minister Najib Razak was found guilty of all seven charges by the High Court.

Here's a recap of what the court decided:

  • 12 years jail and a fine of RM210mil, in default five years jail for the charge under Section 23 of the Malaysian Anti-Corruption Commission (MACC) 2009 for abuse of power.
  • 10 years jail each for three charges under Section 409 of the Penal Code for criminal breach of trust (CBT).​
  • 10 years jail each for three charges under Section 4(1)(b) of the Anti-Money Laundering Act, Anti-Terrorism Financing Act and Proceeds of Unlawful Activities Act.

Justice Mohd Nazlan Mohd Ghazali ordered for all the jail sentences to run concurrently.

Ensuring justice is served.
Non-lawyer folk (like a lot of us - who are we kidding - like all of us at Rojak Daily) were slightly confused by some of the stuff happening during the proceedings and had a lot of questions after the sentence was announced on 28 July.

Since sharing is always caring, we decided to take some of our questions (and your questions) to our lawyer friend N.G.Vinod from Law Chamber of Vin Sa & Ian.

Vinod is used to dealing with white-collar crime cases, so for him, answering the questions were kacang goreng lah

(*NOTE: Lawyer Vinod's replies are italicised. The gifs and other additional comments are all the work/input of RD Minion)

Q: Why isn't Najib being led to jail immediately after the court found him guilty?

 

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"Najib’s lawyers had made an application for a stay of execution pending appeal to The Court of Appeal. A stay of execution is, in simple language, a pause or freeze on the sentencing given by the Courts. 

As appeals to the appellate courts are constitutional rights of all citizens, the Malaysian Courts would generally allow a stay of execution pending the outcome of the Appeal. 



This practice is to ensure that if The Court of Appeal finds him innocent, he would not have wrongly served his jail sentence. This may even continue to the Federal Court as Najib can appeal to the Federal Court in the event he is not successful in The Court of Appeal. 

Prosecution too will have the right to appeal to the Federal Court if the Court of Appeal overturns the High Court decision."

Q: How long does an appeal usually take? If proven guilty, when will Najib start serving his sentence?


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"It would be difficult to determine the duration it may take as there is no fixed time frame for an appeal to be heard. However, it has been the practice of most Courts since 2012 for matters to be heard and decided between 9 to 12 months. 

This is, of course, not taking into account postponements sought by any of the parties owing to health reasons or circumstances beyond the control of courts."

FYI: Previous reports on Najib + postponements.

Najib has eye problem again, 1MDB trial postponed - New Straits Times
Najib summoned to palace, SRC trial postponed - The Straits Times
1MDB trial postponed after Najib’s team goes on Covid-19 self-quarantine - Today
Najib's 1MDB trial postponed to May 19 due to parliamentary sitting - The Star 
Najib's SRC trial postponed after lawyer Shafee injured by pet dog - The Star

So, the point is, postponements seem to be happening quite often in the 67-year-old former premiere's case.

Q: For the charge under Section 23 of the Malaysian Anti-Corruption Commission (MACC) 2009 on abuse of power, Najib was sentenced to 12 years and fined RM210mil, in default five years' jail. Just to be clear, this five years is on top of the 12, right?

 

"This five years is an additional jail sentence in the event Najib fails to pay the fine of RM210mil. However at this stage it is unclear if it would be on top of the 12 years, as for all the other charges, the judge had ruled that the sentencing run concurrently.

However taking into account that this additional five years is in the event of a default, one can expect that it would be on top of the 12 years. If this is the case, he would likely have to serve 17 years."


The judge is responsible for determining the jail term.
For court noobs, there are basically two ways a judge could decide on how a person serves their sentence: concurrently or consecutively.

Here's the difference (according to NOLO.com).

Concurrent sentences: When sentences run concurrently, defendants serve all the sentences at the same time.

Consecutive sentences: When sentences run consecutively, defendants have to finish serving the sentence for one offense before they start serving the sentence for any other offense.

If we take Najib's case as an example, concurrently, he would serve 12 years in jail.

If the judge ruled that the sentences run consecutively, he would have to serve 72 years in jail for the seven charges. 

 

Q: Why have we never seen Najib in handcuffs?

 

"There is no reason to handcuff a person unless there is a risk of the person fleeing. However it cannot be denied that many of those who have been accused, despite voluntarily surrendering, have been handcuffed before.

This appears to be the Standard Operating Procedure of the Malaysian Police Department as stated by them on various occasions.

But from the observation of various instances the discretion appears to be entirely up to the Police officers dealing with the accused or convict. 


In Najib’s case, it is unclear if he was handcuffed when he was initially arrested and charged but once bail is granted an accused would not be handcuffed during his appearance in court. And after a decision, the convict (a.k.a. Najib in this case) will not be handcuffed if the court grants a stay of execution.

No cuffs needed.

So, in summary, it seems like it's all up to the court popo to decide if you should be cuffed or not. #benicetoabangpolis

Q: For a person involved in mishandling of millions, why is Najib's bail amount only RM1mil? Is there a fixed criteria that a judge follows when fixing bail?

 

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"Firstly, the bail amount was an addition to the RM1 million he (Najib) had posted when he was first charged. Which means, it is now RM2 million pending the final disposal of the case.

There is no fixed criteria or scale for bail sums, it is usually up to the judge to fix an amount he deems fair upon hearing submissions from both the prosecution and defence teams.

It has to also be noted that the bail sum should not operate as a punishment in itself."

Q: Can he still be an MP now that he's been found guilty?

Still an MP.

"He can still be a MP as the execution of his sentencing has been stayed by the Court and provided he files an appeal to the Court of Appeal within the prescribed time frame.

The Federal Constitution says that;

(48) (1)

Subject to the provisions of this article, a person is disqualified for being a member of either house of parliament if;

(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 1 year or to a fine of not less than two thousand ringgit and has not received a free pardon;

(48) (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) –

(b) if within the period of 14 days specified in paragraph (a) an appeal or any other court proceedings is brought in respect of such convictions 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 other court proceedings is disposed off by the court;

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

For now, he's still an MP.
But should the Parliament be dissolved and an election is held anytime soon, he would not be able to contest unless his conviction has been reversed by the Court of Appeal before such time.

48(5)

Clause (4) shall not apply for the purpose of nomination, election or appointment of any person to either house of parliament, for which purpose the disqualification shall take effect immediately upon the occurance of the event referred to in paragraph (e) or clause (1) or in clause (2), as the case may be."

Q: In your experience, how often is a guilty verdict reversed when appealed?


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"It is very subjective as different cases have different facts and evidences relied upon by the trial Court. The appellate Courts generally do not disturb findings made by the trial judge unless they find there have been grave errors.

In Najib’s case, the judge has convicted him on all seven charges. That essentially means that the Prosecution has successfully proved beyond reasonable doubt for all seven charges.

Each of those charges would have been dealt with separately and the Judge would have considered the evidences for each of it accordingly. It is definitely going to be an uphill task for Najib’s lawyers to successfully overturn all seven convictions."


And there you go. Some of the major questions answered by lawyer Vinod. 

Let justice take its course

 

We also asked Vinod if he would like to add any comments pertaining to the whole saga and here's what he had to say:

"Certain sections of the public seem to be disturbed that this whole process is taking too long as Najib is walking free during this duration. Most Malaysians wish to see a conclusion to this saga soon as possible. 

But one has to bear in mind that the due process of law is accorded equally to all and there appears to be no special treatment whatsoever in Najib’s case. He is merely exercising his constitutional rights with the assistance of his lawyers.

The golden rule in legal jurisprudence is: 'Justice must be seen to be done.' In this context, all avenues of appeal must be accorded to any accused, irrespective of one’s status."

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So, there you have it guys. 

We just have to be patient and let justice take its due course.

PS: If you have any other burning questions about the case, let us know in the comments and we'll try to get the answers for you. 


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