How Malaysia’s Judiciary Fought Back and Convicted a Former PM

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How Malaysia’s Judiciary Fought Back and Convicted a Former PM

After decades of subordination to politicians, the conviction of Najib Razak on corruption charges was a powerful assertion of independence by the country’s judiciary.

How Malaysia’s Judiciary Fought Back and Convicted a Former PM

A person passes in front of the High Court as former Prime Minister Najib Razak is planning to attend a hearing related to another case filed against him involving the 1MDB scandal in Kuala Lumpur, Malaysia, August 25, 2022.

Credit: AP Photo/Vincent Thian

On the morning of his final court appearance, Malaysia’s former prime minister, Najib Razak, left his glitzy Pavilion residence in Kuala Lumpur surrounded by bodyguards and outriders. This was the same place where in 2018 the police seized assets worth RM114 million ($25.5 million), including 72 bags of cash and jewelry, boxes of designer handbags (mainly Hermès), watches, and a few tiaras, as part of the investigation into the massive corruption scandal involving the state investment fund 1Malaysia Development Berhad (1MDB).

Much has changed since May 2018, when Najib became the first sitting prime minister to suffer an election defeat in the country’s 60-year history. The night of the historic defeat filled Najib with “agonizing frustration,” he recalled in March.

“It was the kind of defeat I had never before felt in my life… I was going down in history as the first Malaysian leader to leave with a change of government,” he told a crowd at the Malaysia Democracy Forum.

But what Najib said next proved ominous. The beauty of democracy, he continued, is that those who have come up short have the opportunity to reinvent themselves. And this is exactly what he did. Through a combination of disinformation and lies, laced with casual humor, his expensive social media team transformed a scandal-ridden, defeated former prime minister into the most popular politician in Malaysia.

Hundreds thronged to catch a glimpse of Najib wherever he went. His online posts generated thousands of reactions that turned viral within minutes. His party, the United Malays National Organisation (UMNO), made him the unofficial poster boy for a succession of state election campaigns in which the party secured landslide victories. His biggest dissenters, the ethnic Chinese groups, started inviting him to business conferences and community events.

Najib Against the World

Despite having a number of ongoing criminal cases against him, these carefully crafted lies and the passage of time softened Najib’s image. No longer a disgraced and corrupt former prime minister, now his tagline was “Malu Apa Bossku” – “What is there to be ashamed of, my boss?.” Just as Philippines’ Ferdinand “Bongbong” Marcos Jr. cleansed his family name of its connotations with massive corruption and abuses of power by winning the presidency in May, the possible return of Najib as prime minister no longer seemed like an impossibility.

In four short years, Najib has regained the sense of invincibility he felt when he was prime minister. During his 9-year premiership, he bent every government institution in his favor. He sacked the attorney-general who was about to charge him over the 1MDB scandal and replaced him with another who exonerated him of any wrongdoing. He got rid of Cabinet ministers who raised concerns about 1MDB. He passed oppressive laws and shut down media outlets. 1MDB was a financial blackhole that sucked out as much as RM42 billion ($9.4 billion) from the Malaysian state coffers, forcing him to overreach his executive boundaries into government-linked funds and institutions to plug the 1MDB hole.

In feudal Malaysia, institutions are hollow and corrupt politicians have long run the show.

There is perhaps no better example of political interference than the Malaysian judiciary. In 1988, the government under Mahathir Mohamad suspended six Supreme Court judges and dismissed half of them, including the Lord President, to prevent them from ruling against the government. The constitution was then amended to restrict judicial power, even removing the word “Supreme” from the name of the country’s highest court, violating the sacred principles of separation of powers and judicial independence.

The ensuing decades were filled with allegations of corruption, judge-fixing, foul-play, and dubious judgments, giving rise to the impression that the courts were mere tools of the government.

During his tenure, Najib took advantage of this judicial vulnerability to convict the popular opposition leader, Anwar Ibrahim, in trials and hearings that were largely considered a sham. Nurul Izzah Anwar, a member of parliament and the eldest daughter of Anwar, told me that a United Nations Working Group concluded that Anwar’s imprisonment was arbitrary and politically motivated.

The Judiciary as the Final Bastion of Democracy

Last week, Najib took this same invincibility mindset to his final appeal against the 2020 conviction and 12-year prison sentence, just the first of five cases against him relating to 1MDB. He changed lawyers at the eleventh hour, hiring a counsel that hadn’t seen the case documents, in an attempt to delay proceedings. His legal team unsuccessfully adduced evidence to show that the previous High Court judge was conflicted and thus biased. He tried to discharge his entire legal team and leave himself unrepresented to cry foul about the legal process. He even asked two lawyers to casually walk in and argue his case even though they were not counsels on record.

“[I remember] seeing senior lawyers walking in halfway through an appeal to attempt to argue the case, as if this was a common coffee shop,” lawyer Lim Wei Jiet told The Diplomat. “It is utterly shocking seeing fellow lawyers abuse the court process in such a manner.”

Running out of options, Najib’s lawyers pulled one last stunt on the final day of the proceedings, filing to recuse the Chief Justice herself, arguing that a Facebook post by her husband four years ago rendered her biased.

Tengku Maimun, the first-ever female chief justice of Malaysia, was immune to political manipulation as she earned her way up on merits. She refused all requests to delay the court proceedings. “We are here not to waste time,” she told the defense lawyers.

Against Najib’s lawyer’s request for more time, she said, “You have Saturday, Sunday, and Monday, that’s three days. Don’t tell us you’re not prepared.” When Najib’s former lawyer walked in and said he was too busy to argue Najib’s case due to an ongoing conference, the chief justice asked him what the point of the story was since he wasn’t the lawyer on record, and proceeded to ask him to leave.

And on the question of whether she was biased by her husband, she simply stated that her husband’s post had no relevance to the current case, neither in time nor fact. In other words, her mind was her own, not influenced by her husband’s. When left to argue the case on its own merit, the defense couldn’t present a single new argument.

How the Judiciary Fought Back

“It was an absolutely watertight case,” the former attorney-general, Tommy Thomas, who initially charged Najib in all 1MDB-related cases, told me. “Even at the start, I was convinced we had a strong case because of the paper trail. We had minutes of meeting[s], bank statements, vouchers, company resolutions… Najib’s fingerprints were everywhere.”

In the first case against him, all levels of the court found Najib guilty of money laundering, abuse of power, and criminal breach of trust after RM42 million ($9.4 million) was transferred into his private bank accounts from SRC International, a unit of 1MCB. He was the “overall master” who used his directors as “puppets on a string” to pressure the pension fund to loan money to a shell company, and eventually transfer it to his bank accounts. His defense of the money being a Saudi donation was “nothing but an impossible concoction.” There was no national interest in these actions, the appellate court said, only a “national embarrassment.”

At the fall of Tengku Maimun’s gavel, history changed. Twelve years of prison and a fine of RM210 million ($47 million) was imposed on the former prime minister – an unprecedented development in a land where corrupt elites routinely act with impunity. In the face of smear campaigns and mudslinging against a judiciary long considered submissive, the courts at every level fought back and discharged their duties in a professional fashion, without regard to the political pressure that has hung over their heads since 1988.

Nobody knows how long Malaysia could hold as one of the few countries in the world that convicted its former leader for corruption. As I write, UMNO is plotting a nationwide petition campaign for a royal pardon. Though nearly legally impossible, the undercurrents of interfering with the judicial process haven’t ceased.

I still remember the day Anwar Ibrahim was thrown into prison for the second time. It was 2015 and I was a law student whose idealism was crushed by the transparently political charges against the longtime opposition leader. Anwar’s angry words against the judges still ring in my ears:

“You had the best opportunity to redeem yourselves – to right the wrongs of the past and put the judiciary on a clean slate and carve your names for posterity as true defenders of justice. But instead, you chose to remain on the dark side… You have become partners in crime for the murder of judicial independence and integrity. You have sold your souls to the devil.”

Perhaps in time, Najib’s conviction will be seen as the second coming of the Malaysian judiciary, led by courageous judges who will no longer bow to any political master.