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Former prime minister Najib Razak has been granted a conditional pardon, allowing him to serve the remainder of his SRC International sentence under house arrest, subject to a RM50 million payment and other conditions. So what does this decision mean for Malaysian politics and the criminal justice system, and how should the public understand what happens next to Najib? On this episode of #ConsiderThis Melisa Idris speaks with senior criminal lawyer Datuk N. Sivananthan, who is the first Malaysian lawyer admitted to the list of counsel at the International Criminal Court (ICC) in The Hague
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00:10Hi, welcome back to Consider This, I'm Melissa Idris.
00:14The Yang Di Putuan Agong has exercised his constitutional power to grant Najib Razak a
00:18conditional pardon, allowing the former Prime Minister to serve the remainder of his SRC
00:23international sentence under house arrest. This of course is subject to conditions including
00:28a RM50 million payment. The government says the decision must be respected, but is there
00:35still space for public scrutiny of the process and its implications? Well, joining me on the
00:42line we have with the senior criminal lawyer, Dato N Sivanandan, who is the first Malaysian
00:48lawyer to be admitted to the International Criminal Court. Dato Sivan, it's good of you
00:52to join me on the show. Thank you for your time. Let's start with the most basic legal
00:56question to kick off the conversation. What exactly has the Yang Di Putuan Agong granted
01:01Najib Razak? I'm curious to know, help us understand, what exactly has and has not changed?
01:07Okay, as you know, in 2024, the original sentence given to Rajib was a prison sentence of 12 years.
01:16Subsequently, the Yang Di Putuan Agong then reduced that to six years. Effectively, it means when
01:23you have a six-year sentence, there's an automatic one-third remission, which effectively means that
01:29from 2024, his sentence would end in 2028. Now, he still has that time to serve. What the Yang Di
01:38Putuan
01:38Agong has done is simply this. The fine was also reduced by the previous Yang Di Putuan Agong to 50
01:44million.
01:44So, what the current Yang Di Putuan Agong has done is to say that I am agreeable or allowing you
01:52to spend
01:53the rest of your sentence until 2028 by way of a house arrest, provided you settle the fine of 50
02:01million.
02:01So, that's effectively what has been done. It means that if the fine is paid, the house arrest will start
02:09and that will continue until 2028 after which the sentence would have been served and, well,
02:15he'll be a free man then.
02:17Okay. Well, okay. Constitutionally, Datuk, where does the public's right to scrutinise the process begin and end?
02:26I'm just wondering, can we respect the Agong's constitutional prerogative to grant clemency,
02:32but still question how that prerogative was exercised? Is it a legitimate question if a citizen says,
02:42I accept the king has power to grant clemency, but I still want to know why this particular form
02:48of clemency was granted? You can ask, but unfortunately, the prerogative is absolute
02:56and the young di Pertuan Agong has no obligation to explain why he came to their decision. In fact,
03:05even the proceedings of the Pardons Board, apart from the Minister in Kuala Lumpur and the Attorney
03:10General being there, even the other members of the Pardons Board, even that is top secret.
03:16So, we don't really know who were the other members who were present at the Pardons Board meeting
03:22with the young di Pertuan Agong. And he is not bound by their recommendation. He is guided,
03:29but ultimately, it's his decision. Now, I think what has made this somewhat interesting
03:36is this is the first time ever that in allowing a pardon, an order of an house arrest has been
03:43given.
03:44It's never been done before. So, in that sense, it's unusual, but very much still within his powers.
03:53Okay. Well, let's talk about the house arrest then. You said this is the first time. So,
03:58what is the framework or the legal mechanism by which a person can now serve a custodial sentence
04:05at home? Actually, the simple answer to that is there isn't. The house arrest provisions are now being
04:14considered and they plan to take it to Parliament and draft it into written law. Nothing is concluded.
04:21However, under the Prison Act Section 3, it's open to the prison to gazette any building as a prison.
04:30So, what they are going to do, I suspect, is Najib Razak's house is going to be gazetted as a
04:39prison
04:40for the purposes of him being in custody and house arrest, which is why this is all new ground.
04:47Are there going to be conditions as to who lives there? Are there going to be conditions as to who
04:52comes and goes? Are there going to be conditions as to the type of food he eats? Does it mean
04:59that you can
05:00have maids and this and that or whatever? It's open season. No one has any idea, including the prison.
05:08The prison is now formulating some guidelines because theoretically, whilst you may be serving your sentence
05:17in your house, it still has to be considered a prison of sorts. So, would it make sense then for,
05:25so as if I understand you correctly, Datuk, that the the stakeholders deciding these guidelines would be
05:32the Jabatan Penjara Negara Malaysia? Absolutely. Okay, so would it be fair or would it be logical to assume
05:39that the same conditions of a prison apply to house arrest? So, meaning the limitations of a prison
05:46would still apply to a house gazetted as a prison? Again, no set rules. So, they're going to set rules
05:55now. How are they going to set those rules? I mean, let's look at the practical realities. You can put
06:00a
06:00guard outside but it's a house and it means that there are other people living in the house. Are you
06:06going to
06:06say that he's the only person who lives in the house? That doesn't make sense. It's house arrest.
06:11I mean, are you then going to be able to control what he eats? I don't think so. That doesn't
06:16make
06:16sense at all. Is there going to be someone in the house watching what he eats? How is it done
06:22in other
06:23jurisdictions with similar legal framework? Do we have a benchmark elsewhere? No, actually other
06:30jurisdictions, yes, they do have house arrest in some of the Middle Eastern countries and so forth,
06:34where basically you're confined to the house, but otherwise in the house everything goes.
06:39They do have regulations, I think in most countries that control access to electronic media,
06:46which means you don't have access so that you're speaking to the outside world as and when you wish
06:50to. And they also control, apart from the people who live in the house, they control the people who
06:56can come in and visit you. And all that in most countries, you need permission from the prisons in
07:02advance before someone can come in and visit you. But otherwise in the house, to be honest,
07:07you are entitled to eat whatever food is there and all that. I mean, but so again, this is all
07:14really
07:15new ground. I have no idea what the prison department is going to do.
07:19All right, so can I ask you then, in the days and weeks and months that we will be watching
07:25the
07:25prison, the prison department for any announcements with these house arrest guidelines, what are you
07:33going to be watching out the most? What will be for you areas of concern or the areas of priority
07:40that you
07:40are watching for? I think personally, I'd like to know how they're going to implement the house arrest and
07:45what are the conditions. But more importantly, I think there are loads, thousands of pardon
07:51applications in all the various states. And I'm wondering, is the fact that a house arrest was
07:57given, is this going to be a new remedy that other pardon spots are going to consider, at least for
08:03white collar crime? I mean, you, I mean, you and I know that there are some prominent individuals in
08:10prison for white collar crime. Are they going to be entitled to house arrest as well? Or is this just
08:14going to be a one-off? I don't think you can say it's a one-off because that would be
08:18unfair.
08:19It's certainly on the table, but whether it's going to be given to someone else,
08:24I think left to be seen. And that's something that's of interest to me, apart from the fact that house
08:29arrest is being sent through parliament as a possible custodial sentence, which I fully support
08:35because it then allows for people, for more people to be kept under house arrest and reduce
08:41the overcrowding. As the minister has said, we are, I think, in excess of 20,000 people in our
08:47prisons in capacity-wise. And that's not a good thing. I think if there is a way to reduce
08:52the prison population by offering house arrest as an alternative, that's obviously something that,
08:57as a criminal lawyer, I'm very interested in because the conditions are quite bad.
09:01Right. Can I circle back to something you said a bit earlier, Datuk Siva, that was quite interesting.
09:05So you talked about how the pardons, boards, activities or minutes or procedures are treated as
09:13confidential. Can you help me understand why? Why is there a constitutional or public interest
09:20rationale for keeping their deliberations secret?
09:25I think the point is, if you start publishing the minutes of a pardons board, then it allows people
09:33to perhaps say, hey, I'm in the same category and I should be entitled to a pardon as well.
09:39But the pardon process by its very nature is very, very subjective. And the ruler must have the
09:48discretion for whatever reasons to be able to give the pardon without having to explain that,
09:54I am being persuaded by A, B, C, D or E, because that cannot be the case because it has
10:00to be a very
10:01holistic approach to a pardon. So I think not releasing the pardon minutes just prevents
10:08a problem of everyone saying, hey, I'm in the same category and I want a pardon. But there may be
10:13other
10:14factors that a ruler, well, under article 42 of the federal constitution, it's his prerogative. He doesn't
10:20have to tell you why. If he says tomorrow that I want this person free, that's his prerogative. I mean,
10:26that's in our constitution and it's just a power that the rulers have.
10:31Okay. So bearing that in mind, what is provided for in the constitution,
10:35what do you think the public should be reasonably entitled to know about this decision?
10:45That's a very, it's a million dollar question, really, you know, and I'm not, I'm not looking at
10:52the 50 million that he has to pay, but it's, as you can imagine, it's, it's, I mean, with this
10:57particular matter, I mean, everyone understands why the conviction took place. Everyone understands
11:04the amount of money that was lost in the 1MDB saga. But at the end of the day, I think
11:10people should just
11:11realize that this is a constitutional power given to the young Dibetuan Agong and to the ruler of state.
11:23And I suppose you can go back and wonder why this power was given to begin with.
11:27But the law, as it stands, doesn't allow Melissa for such questions to be asked.
11:34You cannot ask the questions. You can, but you are not entitled to any of the answers that you seek.
11:41I mean, but that is the law. I mean, there may be many laws that we don't agree with, but
11:45we have to
11:45follow it because it's the law. And if you don't agree with the law, then you have an election and
11:51you
11:51get parliamentarians going there and they try and change the law. I mean, that's the way it works.
11:55You know, so I'm, I'm afraid that with this particular issue, we are not going to get any answers.
12:01The decision has been given. It just has to be implemented.
12:05Okay. So, so in the couple of minutes that we have left, what are you, so help us understand what
12:10happens to Najib Raza next. So if I understand correctly, he's also appealing his, um, separate
12:151MDB conviction. Yes. What does this conditional pardon, does that, this, this conditional pardon
12:21have any bearing on that? And how, how should we understand these, uh, legal matters?
12:26Okay. The other, the 1MDB sentence, the judge ordered it to run once this sentence is over.
12:35So theoretically that doesn't come into play until 2028, because that was the order that it should
12:44run after he has served this sentence. So this period where he's under house arrest is still serving
12:51the sentence, except in a house. So by 2028, when he finishes, uh, this sentence, albeit, uh,
13:00by way of house arrest, if he hasn't got a state of that other sentence, then he would have to
13:07go back
13:07to prison to serve it. Of course, either he's got a state or perhaps he wins his appeal for one
13:15reason
13:15or the other than, you know, uh, no question about it. Having said that a state is normally granted
13:20in a criminal matter pending appeal. So I don't foresee that being a problem. Even if that matter
13:26has been disposed off at the court of appeal, uh, unsuccessfully, and he goes to the federal court,
13:31there will still be a state even with the SRT. As you, as you recall, there was no requirement to
13:37serve the sentence until he was disposed off at the federal court. So I don't think that's an issue.
13:42Even if they take another two or three years, but at the moment, I don't, the only issue I see
13:49is
13:49paying the 50 million of costs, because that's very clear until the 50 million is paid. Uh,
13:56the house arrest cannot take place. And at least from what I'm reading online, there appears to be some
14:01problem with the payment, because you know, the argument is a lot of his assets have been frozen
14:06and monies have been frozen. So how do you pay the 50 million? But assuming he pays the 50 million,
14:12until 2028, that other case is of no issue. Okay. At all. Okay. Well, Dr. Siva, thank you so
14:19much for joining us on the line today and sharing your legal, um, perspective on this, helping us
14:24understand this, this, uh, complex legal issue. I appreciate your time. Senior criminal lawyer,
14:29Dr. N. Siva Nandan, they're wrapping up this episode of Consider This. I'm Melissa Idris,
14:34signing off for the evening. Thank you so much for watching and good night. Thank you.
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