Court clarification could prevent floodgates of litigation over Najib

The delay in implementing Najib Razak’s house arrest has sparked a heated debate, particularly over whether the Attorney-General’s Chambers (AGC) is defying a royal decree.

Yet the more consequential legal question may lie elsewhere.

Beyond the dispute over implementation is the issue of how the move could affect the calculation and enforcement of Najib’s existing prison sentences.

What happens if Najib is transferred home today, only for the courts to spend years hearing arguments over whether his SRC International sentence had already ended?

A few words in a court document could affect not only Najib’s treatment under the royal decree, but also when his next prison sentence begins.

Unless clarified now, the dispute could open the floodgates to further litigation.

Two sentences, one important date

Najib is serving a prison sentence in the SRC International case, scheduled to end on Aug 23, 2028.

In the separate 1MDB case, he received another 15-year sentence, which remains subject to appeal.

The court ordered the 1MDB sentence to begin only after the SRC sentence ends.

Under the existing arrangement, that means Aug 23, 2028.

The problem with ‘discharge’

On Nov 6, Najib paid his fine, following which a court document was issued containing the words “discharge forthwith”.

In ordinary language, that means immediate release.

But releasing someone from a prison sentence is different from transferring that person to serve the same sentence at home.

Under house arrest, Najib would remain a prisoner. Only the location of his detention would change.

The confusion appears to have arisen because this unusual situation is not expressly governed by existing written law.

The court registry appears to have applied provisions governing the discharge of prisoners to a situation those provisions were not intended to cover.

Najib’s situation involves a royal decree concerning where he serves the remainder of his prison sentence, rather than its termination.

Whether the discharge procedure was legally appropriate is a question only the court can decide.

But the significance of that question extends beyond the implementation of house arrest.

If the meaning of the discharge order remains unresolved, it could have implications for the commencement and enforcement of Najib’s separate 1MDB sentence.

The risk of future disputes

Consider what could happen if Najib is transferred home without clarification.

An argument could subsequently be made that the discharge order ended his SRC sentence on Nov 6, 2026.

If accepted, could his 1MDB sentence then be treated as having started that day instead of Aug 23, 2028?

That is almost two years earlier.

Could Najib also argue that time spent under house arrest should count towards his 1MDB sentence?

These are not automatic consequences, nor is there evidence that Najib’s lawyers intend to pursue such arguments.

But the possibility creates uncertainty.

The courts could face further applications and appeals over when one sentence ended, when the next began and how time served should be calculated.

The 1MDB judge refused a stay

The uncertainty becomes more significant when viewed alongside developments in the 1MDB case.

The High Court rejected Najib’s application for a stay of execution of his 15-year sentence pending appeal.

The judge found that Najib had not demonstrated the special circumstances necessary to justify suspending the sentence.

Unless a higher court decides otherwise, that sentence remains enforceable once his SRC sentence ends.

But if the discharge order were interpreted as ending the SRC sentence on Nov 6, would the 1MDB sentence become enforceable immediately?

Could Najib then argue that he had already begun serving his 1MDB sentence while under house arrest?

The refusal of a stay does not itself prevent Najib from serving the remainder of his SRC sentence at home.

However, would the High Court in the 1MDB case have deferred the commencement of Najib’s prison sentence if the house arrest was in place when the sentence was handed down?

What Najib’s lawyers acknowledge

In their latest statement, Najib’s lawyers acknowledged that paying a fine does not, by itself, end a prison sentence.

This is consistent with Section 283(1)(e) of the Criminal Procedure Code.

Paying a fine removes imprisonment imposed for failing to pay it. It does not automatically cancel the original prison sentence.

On that interpretation, Najib’s SRC sentence continues until Aug 23, 2028.

However, his lawyers have reserved his legal position concerning the overall effect of the royal pardon and his sentence.

That does not establish any intention to challenge the commencement date of the 1MDB sentence, but reinforces the need for judicial clarification.

Respecting the royal decree

The AGC maintains that it does not dispute the royal decree concerning Najib’s house arrest.

The question is how to implement it correctly.

Seeking clarification from the court does not necessarily mean challenging the king’s authority.

A clear ruling would help ensure the royal decree is implemented without affecting Najib’s other sentence or drawing the monarchy into further legal controversy.

Only the courts can decide

Najib is a convicted prisoner. His sentence was imposed by the courts, and its legal consequences must be judicially determined.

His lawyers are entitled to make submissions, and the AGC may present its position. But the outcome cannot be negotiated between the parties.

The court should clarify whether the SRC sentence continues until Aug 23, 2028, whether payment of the fine affected only imprisonment in default of payment, and when the 1MDB sentence legally begins.

It should also consider the existing refusal to suspend the 1MDB sentence.

Once these questions are judicially determined, the relevant authorities can implement the decision.

Preventing a bigger problem

There is an understandable desire to implement the royal decree without delay.

But speed should not come at the expense of legal certainty.

Najib remains a prisoner whether detained at Kajang Prison or under house arrest. A short delay for clarification would not, by itself, extend his sentence.

Proceeding without clarification, however, could trigger years of litigation involving two criminal sentences and existing judicial decisions.

The purpose of clarification is not to frustrate the royal decree, but to ensure that it is implemented correctly.

A judicial ruling today could prevent years of legal arguments tomorrow.

That is preferable to allowing one disputed word to open the floodgates to further litigation.

Ibrahim M Ahmad is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of FMT.