Judicial clarification over Najib's home detention vital for the rule of law

Project Stability and Accountability for Malaysia (Projek Sama), the Center to Combat Corruption and Cronyism (C4 Center) and the Coalition for Clean and Fair Elections (Bersih) urge all quarters to allow due legal process to resolve all legal ambiguities surrounding the home detention of 1MDB corruption convict Najib Razak. 

The Attorney General’s Chambers appears to have vigilantly flagged a serious ambiguity, if not error, in the High Court order dated 6 November that would cause Najib’s SRC International prison term to be discharged.

Whether or not this ambiguity or error was intentional, it has gone beyond what the public understands of the Pardons Board’s decision over Najib’s home detention.

Ironically, if Najib is unlawfully discharged in the SRC case, his 15-year imprisonment in the 1MDB-Tanore case should commence immediately.

Any attempt to make this ambiguity or error unchallengeable in court fundamentally undermines the rule of law and alters the basic character of Malaysia as a constitutional monarchy grounded in parliamentary democracy.

It is common for different institutions to hold differing interpretations of constitutional and legal provisions. That is precisely why we need the Judiciary to interpret and arbitrate.

Denying the Attorney General’s Chambers the opportunity to have its queries addressed and have these ambiguities expunged by the court undermines the rule of law – and by extension, erodes public and international confidence in Malaysia’s good governance and economy.

No individual or institution acting in good faith should fear the transparency and clarity brought by judicial deliberations.

If Najib’s home detention is constitutional and judicially sound, a brief wait will ultimately benefit him in the eyes of public opinion.

Having already cost the nation RM2.3bn across the SRC and 1MDB-Tanore cases, Najib must refrain from rushing this process so as not to further undermine the rule of law and public confidence in parliamentary democracy.

No political pressure or public campaign should be allowed to rush the implementation of an order whose legal status remains unsettled. Public trust demands that every ambiguity be resolved transparently, in accordance with the law, before Najib’s home detention proceeds.

The Attorney General’s Chambers should have made Attorney General Dusuki Mokhtar’s written opinion on Najib’s home detention application public. The public has every right to know how Najib’s home detention is regulated and on what legal basis.

Late as it may be, the chambers’ vigilance in spotting the ‘discharge’ ambiguity or error is commendable. The chambers must not be politically pressured or punished for playing its role.

We reiterate our demand for full disclosure of all relevant documents – including the attorney general’s written submission; the federal territories minister’s position; the minutes of the pardons board meeting, and any legal or regulatory instruments governing Najib’s home detention.

As the Malay proverb goes, “courage dwells in righteousness, fear dwells in guilt (berani kerana benar, takut kerana salah) – those who truly believe in the validity of Najib’s pardon and home detention should support this call. – Projek Sama / C4 Center / Bersih