Written by: Averroes
(1.0) Introduction
The High Court in Kuala Lumpur on 28th July 2020, Datuk Seri Najib Razak was convicted to 12 years jail and was fined RM210 million in relations to the SRC International Sdn Bhd case. Therefore, the 69-year-old former Prime Minister is appealing the sentence and conviction of abuse of power, criminal breach of trust and money laundering, amounting to RM42 million of SRC International Funds.
Despite the sentences and conviction arrived, Najib is probably still on Facebook posting his remarks against the opposition parties and providing his own economic opinion during this Covid-19 Pandemic. The author noticed Najib commenting on Azmin Ali when he visited Vienna, Austria. The question is, how was he able to do so, isn't he supposed to be in jail by now?
(1.1) Comments by lawyers
Well, according to one lawyer, Mohd Haniff Khatri Abdullah and his interview in the Malaysian Insight video on YouTube, Najib is allowed a stay in paying the RM210 million fine while appealing to the Court of Appeal. However, he did not mention that the stay also included the 12 years jail time. Another lawyer, Dr Syed Iskandar Syed Jaaf Al Mahdzar agreed that the court's decision to stay the fine was unusual.
He states;
"There should be no double standard as failing to pay the fine itself would in default result in additional prison terms and would normally be effective immediately,”
Reverting back to Haniff Khatri in his interview, every perpetrator must pay their fines and a stay order cannot be granted at all. If not, the perpetrator must go to prison until his next appeal or until he has the money.
Though, he justified this stay, perhaps RM210 million is impossible to be paid immediately, but he added a condition that if Najib were to have a stay, at least he should pay his fines by instalments, every month or he would have to pay bail on a specific period.
For instances, Haniff Khatri states that Najib should pay RM2.1 million monthly which represents 1% of the overall RM210 million. However, if Najib still could not pay the remaining 99% during the stay order, he could be imprisoned at home and may continue his functions as an MP from a certain time in a day, maybe 9am to 5pm. He could not attend recreational activities or events, such as weddings or vacations.
Though, the stay according to Najib's lawyer, Shafee Abdullah argued that a stay is given for both jail sentence and fine, as it was rationalised due to the former Prime Minister facing pressure from the Inland Revenue Board and another High Court ruling for him to pay RM1.69 billion taxes which is considered to be 'special circumstances' which enabled him to get out of prison while appealing and postpone the RM210 million fines.
(2.0) Legal Analysis
First, we have to determine the difference between "stay of execution" and "stay of proceeding". In Government of Malaysia v Mohd Najib Bin Haji Abd Razak [2020] MLJU 677, "stay of execution" is when there is already a judgement or order arrived by the court or tribunal to be enforced. For "stay of proceeding" is the opposite, when the court is still in proceeding with no orders or judgement pronounced yet.
Moreover, the case of Ismail bin Suid & Anor v Wan Nadzim bin Wan Mohd Nori & Anor [2021] MLJU 417, defined "stay of execution" based on dictionaries.
According to Merriam-Webster, stay of execution means as an order that temporarily stops an execution. The Black's Law Dictionary defines it as the hold that is put on the carryout of an order or judgement of a court. In Latin, it is known as Cesset Executio.
From here, the case of Salconmas Sdn Bhd v Ketua Setiausaha Kementerian Dalam Negeri & Anor [2020] MLJU 2238, outlines what are the provisions for stay of execution and proceeding.
According to section 73 of the Courts of Judicature Act 1964;
"An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court below or the Court of Appeal so orders and no intermediate act or proceeding shall be invalidated except so far as the Court of Appeal may direct."
According to Order 45 rule 11 of Rules of Court 2012;
"Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit.”
However, this case cited Syarikat Berpakat v. Lim Kai Kok [1983] 1 MLJ 406, that as a rule the court will only grant stay if there are "special circumstances" and which circumstances must be deposed in the affidavit supporting the application.
This is also affirmed in Universal Trustee (M) Bhd v. Lambang Pertama Sdn Bhd & Anor (supra), that case law requires both the applicants for stay of execution and stay of proceedings to show "special circumstances" to justify a stay.
(2.1) Najib's "Special Circumstances"
Overall, the court has absolute and unfettered power to grant or to refuse the defendant's stay application, but it must be in accordance with the established judicial principles. So far, the author have not found the reason as to why the court granted Najib stay. It was not mentioned what type of stay was given, most likely it is stay of execution, since the court already gave the sentencing or judgement to Najib.
However, court may have granted stay of execution because Najib's lawyer (Shafee Abdullah) argued the 'special circumstances', that Najib would be financially handicapped and burdened if he were to pay the fines, since he has other criminal trials as well and he may end up bankrupt. He would also be at risk of losing his MP seat and lose all his other assets as he needs time to handle each one of his liability.
It can be true if lawyers that criticised the court for granting him stay are subjected to 'double standards', as he is an MP and is entitled to get away with the sentencing and convictions by 'postponing' his sentences of jail and fines easily, as compared to the normal rakyat or commoners when they commit offences.
Most ordinary rakyat not even entitled to stay to their jail time and fines with any 'special circumstances' that they may try to prove to the court.
(3.0) References;
Sharanjit Singh. (April, 2020) High Court judge bent over backwards to find Najib guilty, claims defence. Retrieved from, https://www.nst.com.my/news/crime-courts/2021/04/680184/high-court-judge-bent-over-backwards-find-najib-guilty-claims
Hafiz Yati. (August, 2020) Lawyers question why Najib allowed stay of RM210m fine. Retrieved from, https://www.theedgemarkets.com/article/lawyers-question-why-najib-allowed-stay-rm210m-fine
Kes SRC: Kenapa Najib Razak masih bebas? (April, 2021) Retrieved from, https://www.youtube.com/watch?v=6mBK2pQnpPE
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