Malaysia used to be considered a safe investment destination and a major regional anchor in Southeast Asia given its stable political environment. It was also one of South Asia’s key economic and geopolitical partners. However, since the general election in May 2018, Malaysia has been in the political spotlight for all the wrong reasons.
In less than five years it has had four ruling governments, with four different prime ministers and has been facing severe economic challenges with ever-rising cost of living as compared to the period prior to this. Furthermore, it has struggled to attract significant global investments in comparison to its closest neighbours. Its standing in the geopolitical space seem tenuous given misplaced foreign policies by the leadership churn.
Malaysia began to experience growing social dissent on the heels of the “Arab Spring” that spread across most of West Asia in the 2010’s. This, effectively gave rise to a growing domestic activism spurred on by foreign entities expounding a pro-western model of democracy and western liberal values. The nonagenarian former prime minister (PM) Mahathir Mohamad seized this opportunity to stage a comeback in 2018.
Soon after his return to power, Mahathir sought to incarcerate Najib Razak, who was the two-term PM up until 2018. Clearly there were political machinations as asserted by senior Malaysian legal counsel, Jahaberdeen Mohamed Yunoos, but recent finding suggest that these machinations went well beyond to possibly impede the independence of the Malaysian judiciary.
Jahaberdeen asserts that immediately following the 2018 general elections, Mahathir set in motion various judicial appointments that had serious implications on Najib’s judicial predicament. Ironically, these events are carefully chronicled by Tommy Thomas, who was appointed as attorney general (AG) in 2018 by Mahathir, in his memoir My Story: Justice in the Wilderness.
In the memoir, Thomas chronicles his own appointment as AG and describes in relative detail how he and Mahathir went about screening and selecting judges to fill senior judicial positions. This is a serious violation of the Judicial Appointments Commission (JAC) Act of 2009. Coincidentally, this Act was actually brought into existence following the Royal Commission of Inquiry on the infamous VK Lingam case, widely regarded as an intermediary for, none other than, Mahathir in the mid-1990’s, for illegal intervention into the judicial appointment process of judges.
Jahaberdeen says that this entire episode of realigning judicial appointments is reminiscent of Mahathir’s act of firing the then Lord President of the judiciary, Tun Salleh Abbas, in 1988, in order to appoint judges compliant to the PM. This, in essence, was the first assault on the independence and integrity of the Malaysian judiciary. Mr. Thomas’ memoir, now shows that Mahathir has yet again struck the very foundations of the judiciary seeking to realign it to benefit him and his political compatriots.
The current minister in the PM’s Department (Law and Institutional Reform) has announced that the Malaysian Cabinet, under PM Anwar Ibrahim, has decided to institute a Royal Commission of Inquiry (RCI) to look into the actions of the former AG and Mahathir.
On March 31, 2023, the judicial review of Najib Razak, ended with a four to one judgement to not substantiate his claims of a blatant denial of his rights as a citizen and the basic justice that was to have been accorded to him at his appeal in the SRC International case, back in August 2022.
Justice Nazlan is the enigmatic personality who has raised concerns over judicial integrity with his very persona, conduct and eventual judgement over the SRC International case. In early 2022, the Malaysian Anti-Corruption Commission (MACC) had mounted an investigation into the judge which was triggered by allegations of corruption and an eventual police report that he had himself filed.
This investigation had identified several interesting facts. Firstly, it confirmed that Justice Nazlan was indeed conflicted in adjudicating over the SRC International case. This was because he was personally involved as the legal advisor and company secretary of the very bank that was responsible for recommending the establishment of SRC International. The investigation papers were eventually submitted to the AG and the Chief Justice of Malaysia, as confirmed in Parliament.
Secondly, a leaked copy of the letter dated March 20, 2023 from the MACC to the Chief Justice of Malaysia, has further revealed that a “judge shopping” exercise was conducted. The report states that despite the court having an independent and possibly unbiased system of assigning judges to cases, three other judges were informally approached to take over the case from Justice Sofian, who had already begun hearing Najib’s case. These three refused the offer, not a formal recusal, citing possible conflicts of interest. It was following this that Justice Nazlan was transferred from the civil courts to adjudicate over the criminal proceedings of the SRC International case, replacing Justice Sofian. The extent of Justice Nazlan’s conflict of interest, according to the legal counsel for Najib, was never fully revealed to the defence team until after he was convicted on July 28, 2020.
Post the initial conviction and leading up to the appeal, Najib sought to strengthen his defence team with legal capabilities from around the Commonwealth. In this case, it was to include Mr. Jonathan Laidlaw, King’s Counsel. The application was duly lodged with the office of Chief Justice of Malaysia, but this was rejected. At this point, Najib was left with little choice but to seek the assistance of a fresh set of lawyers. Discharging his original legal team, Mr. Najib engaged another firm along with two senior counsels from India, former additional solicitor general of India and senior advocate, Sidharth Luthra and senior advocate, Kavin Gulati.
Najib’s new defence team literally had less than three weeks to prepare for this significant and clearly high-profile appeal hearing. In order to become duly competent to defend their client, the team had to review and digest over 30,000 documents. The requests for a three-month adjournment in order to adequately study the documents and to adduce fresh evidence on Justice Nazlan that was not materially available to the legal team during the original trial proceedings were refused. This left the new defence team with little or no recourse but to request to discharge themselves from representing Najib citing their inability to competently argue the case given the insufficient time to prepare for such a case. The Court of Appeal did not allow the counsel to discharge themselves.
Subsequently, the judgement to uphold the sentencing was announced three days earlier on August 23, 2022 despite the court registry having scheduled it for August 26, 2022. Sidharth Luthra said, “The criminal procedure in India and Malaysia entitles an accused to have opportunity to be represented fairly. The denial of time to the new team appointed by Najib…deprived Najib of being represented by counsel of his choice, constituted a failure of justice, a principle accepted across common law jurisdictions.”
All in all, this entire episode has begun to highlight how institutions are compromised by Machiavellian interventions, and by increasing domestic activism with possible external influences seeking to avert balanced and centrist functioning of key Malaysian institutions.
Najib is now seeking a Royal Pardon from the King, The Yang Di Pertuan Agung of Malaysia. While the pardon is the prerogative of the King, the nation awaits to see how the PM Anwar Ibrahim, defines his premiership and eventual legacy to truly reform various institutions, in this case the judiciary. Mr. Anwar’s catapult to global fame was his famous rallying call for reform, or “Refomasi”. It may now be an opportune time realise that call.
This article is authored by Ravindran Devagunam, senior correspondent, foreign policy and politics, Malaysia Gazette.