It has been a week of relief and disbelief on the legal front in Malaysia.
Relief after Sam Ke Ting was freed by the Court of Appeal in the modified bicycle or “basikal lajak” case, after six long and arduous years.
First in 2019 and then again in 2021, the magistrates court acquitted Sam. The judgment written there was comprehensive. Yet, the prosecution appealed and in April 2022, the Johor Bahru High Court convicted and sentenced Sam to six years’ jail for dangerous driving.
Our legal system is puzzling.
For a country that wants to be a progressive democracy, we do not have a sentencing council or any official sentencing guidelines. In Malaysia most penal code offences, just state the minimum and maximum punishment, or simply the maximum.
Sentencing, upon conviction is still very much at the discretion of the magistrate or judge. The seriousness of an offense is a consideration. But other principles also apply, such as proportionality, being a first- time offender, etc.
Ultimately though, it is noticeable that one magistrate’s or judge’s sentence can vary from another.
When I inquired about the rather arbitrary nature of sentencing by our courts, one lawyer friend joked that it was ultimately dependent on the “mood” of the court. So, lawyers always work to “keep the court happy”.
That is probably why we see so many cases where different offenders in similarly serious cases receive radically differing sentences.
In the UK, which is the source legal system for Malaysia, the Sentencing Council for England and Wales was set up in April 2010. It promotes greater transparency and consistency in sentencing, while maintaining the independence of the judiciary.
The primary role of this Council is to issue guidelines on sentencing, which the courts must follow, unless it is in the interests of justice not to do so.
Perhaps, our minister in charge of law and institutional reform should consider doing likewise.
My disbelief on the legal front comes with the Umno Supreme Council decision to appeal to the Yang di-Pertuan Agong to consider pardoning Najib Razak. This is over his full and final conviction for misappropriating a staggering RM42 million.
Umno’s current president, a deputy prime minister with a stunning number of pending corruption cases himself, Ahmad Zahid Hamidi, ironically says his party will follow all existing legal procedures before making an appeal to the Pardons Board for consideration of the matter.
The PH Pasir Gudang MP Hassan Karim recently warned that a pardon for Najib would be a “disaster” for Anwar Ibrahim’s unity government and detrimental to the PKR president.
This was rebutted by Puad Zarkashi, an Umno Supreme Council member. Puad struck back telling Hassan not to practice double standards. He questioned whether Anwar’s royal pardon was detrimental to the then PH government.
Incidentally, many non-Umno ministers in the current unity government have distanced themselves from the decision by their government-partner to ask for a royal pardon for Najib. They just keep repeating that they will leave it to the wisdom of our King.
A petition opposing a pardon for Najib has garnered over 150,000 signatures and others supporting a pardon has between 19,000 and 35,000 signatures.
Some political analysts say the unity government has more to gain, and can ride on Najib’s popularity, especially on the “Malay-front.” Others say its image would be hurt if Najib is given a full pardon.
What is certain is that equating Najib’s potential pardon with Anwar’s pardon is ludicrous.
Anwar was accused of sodomising a male political aide in 2008 but was acquitted by the High Court in 2012. Subsequently, the appeals court overturned the acquittal and in 2015, the federal court upheld the conviction.
I still remember that the nation was in shock by the frivolity of the case.
Anwar reportedly, when addressing the panel of five Federal Court judges after his conviction was upheld, said: “You have become partners in crime in the murder of judicial independence.”
He went on to say “I maintain my innocence. This to me is a fabrication coming from a political conspiracy to stop my political career.”
Eventually, the then Yang di-Pertuan Agong pardoned him in 2018. Anwar himself said that the King found his conviction a travesty of justice. I reckon that most Malaysians agree with this.
Yes, sodomy is illegal in our Muslim-majority Malaysia. But for argument’s sake, it is an offence which is essentially a private construct? No one polices his neighbour’s premises to see if someone there is getting sodomised or not.
The nation does not get hurt by this.
However, Najib has been found guilty of looting money to the tune of RM42 million, which was transferred from SRC International – a former unit of 1MDB – into his private accounts. Additionally, there are a slew of other pending cases against him.
The nation has been seriously hurt by his actions.
Funds that should have been used to benefit our country and provide for good governance with better schools, healthcare, and welfare, were looted. Najib’s actions, together with the actions of other corrupt politicians, have ripped a gaping hole in the very fabric of our society.
Surely, even the sycophants can see the difference in pardoning Anwar and asking the same for Najib?
The views expressed are those of the writer and do not necessarily reflect those of FMT.