Can Najib Razak contest in the general election simply because his conviction has been stayed?


On December 8, Najib Razak failed to appeal his conviction and sentencing involving the misappropriation of RM42 million from SRC International Sdn Bhd.

According to a new report, the Court of Appeal then granted a stay of Najib’s conviction and sentence. This came as a surprise as, initially, I thought that a stay of execution on only his sentence was granted.

A “conviction” is a finding of guilt, while a “sentence” is the punishment imposed following a finding of guilt.

In criminal cases where the convicted person has an opportunity to further appeal the decision, the courts will commonly grant a stay of the sentence of imprisonment.

This is only logical, to ensure that the appeal would not be worthless. If there was no stay, the convicted person would have to serve time in prison pending the disposal of the appeal.

Should the appeals court subsequently exonerate the person, the loss and damage suffered during the imprisonment could never be reversed. 

However, it is quite rare to see our courts grant a stay of conviction, although it is not prohibited by law.

Stay of conviction

The court’s power to order a stay of execution is found in section 57 of the Courts of Judicature Act 1964 (CJA):

Appeal not to operate as stay of execution

57. (1) Except in the cases mentioned in subsection (3) and section 56A, no appeal shall operate as a stay of execution, but the High Court or the Court of Appeal may stay execution on any judgment, order, conviction or sentence pending appeal on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the judgment, order, conviction or sentence as to the court may seem reasonable.

The court can stay either a conviction or a sentence, or both. What does it mean to stay a conviction?

In Ravikant S. Patil, the appellant, an elected member of the Karnataka legislative assembly, India, was convicted and sentenced to imprisonment for seven years by the Sessions Court.

He appealed against his conviction and sentence. Pending the appeal, Bombay High Court granted a stay of the execution of the sentence.

The assembly was subsequently dissolved, and fresh elections were called. Right before the final day of nominations for electoral candidates, the High Court stayed the appellant’s conviction pending appeal.

The appellant then contested in the election and won. His election was challenged on the basis that the appellant was disqualified due to his conviction, and that his nomination should not have been accepted.

The Supreme Court of India held that the appellant was not disqualified in light of the conviction stay: 

Where the execution of the sentence is stayed, the conviction continues to operate. However, where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay.

An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may, insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election.

The High Court, after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.

See also Navjot Singh Sidhu and Lalsai Khunte confirming the legal position that a conviction can be “suspended” or stayed to make it temporarily non-operative.

There is no reason why a conviction stay should be interpreted differently under Malaysian law.

Does this mean that Najib is not disqualified from contesting?

If we follow the Indian approach, the answer is obvious. However, I present a caveat: article 48(5) of our Federal Constitution could arguably put a different slant on the question.

Article 48(4) states that even without a conviction stay, Najib is not disqualified as a sitting MP until his appeals and clemency process are completed.

However, article 48(5) disapplies article 48(4) when it comes to nominations and elections to Parliament.

This means that, according to article 48(5), Najib’s conviction by the High Court on July 28, 2020, constitutionally bars him from seeking a fresh mandate at the ballot box. This disability should continue to date.

The question now is, how does the stay of conviction granted to Najib impact the operation of article 48(1)(e), read with article 48(5)?

One interpretation is article 48(5) refers to the existence of a conviction and sentence, as suggested by the words “the disqualification shall take effect immediately upon the occurrence of the event”.

Once Najib was convicted by the High Court, the event has occurred. A stay of conviction does not render the conviction non-existent; it only makes it inoperative.

Thus, a conviction stay does not impact article 48(5), and Najib is disqualified from standing in the next general election.

Another interpretation is that the conviction stay disapplies article 48(1)(e), as if no conviction had occurred.

This is so because the conviction is considered to be on hold until the stay is lifted. It follows that article 48(5) does not come into play because there was no event of conviction in the first place.

I cautiously favour the latter interpretation based on the Indian cases cited above, and it would seem that Najib is still eligible to contest in the upcoming general election.

Rare and exceptional case?

A stay of conviction should only be ordered in rare and exceptional cases. Simply because the convicted person files an appeal to challenge the conviction, the court should not accede to suspend the operation of the same without good reason.

The court has a duty to look into all aspects of the application to stay, including the ramifications of keeping the conviction in abeyance (see Ravikant S. Patil).

One nagging question is whether the High Court and the Court of Appeal addressed the reasons for granting the stay of conviction.

The grounds of judgment appear devoid of any considerations of the relevant factors regarding the stay.

The High Court was explicit on its reasons to grant a stay of execution of sentence, but it did not mention anything about a stay of conviction (it was thus not surprising that experts and practitioners initially assumed that only a stay of execution of the sentence was granted).

The Indian Supreme Court in Ravikant S. Patil provided this guidance:

This Court, however, clarified that the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed; and that unless the attention of the court to the specific consequences that are likely to fall upon conviction, the person convicted cannot obtain an order of stay of conviction.

In fact, if such specific consequences are not brought to its notice, the court cannot be expected to grant stay of conviction or assign reasons relevant for staying the conviction itself, instead of merely suspending the execution of the sentence.

It is also unclear if Najib’s application to stay the conviction was made specifically to retain his right to contest in the next elections, or merely to ensure his current status as an MP is not affected.

Since article 48(4) is clear that he would not be disqualified until his appeals and pardons are completed, the application would undoubtedly have been premised on the former reason, the right to contest.

What was the prosecution’s position on the application? Did it object? What was so exceptional regarding Najib’s case that a conviction stay was granted?

Incidentally, in the Ravikant S. Patil case, the Supreme Court said the following:

The bench also noted that the evil of corruption has reached a monstrous dimension. While declining the prayer of the appellant for grant of an order of stay of conviction, the bench observed that when conviction is on a corruption charge against a public servant, the appellate court should not suspend the order of conviction during the pendency of the appeal, even if the sentence of imprisonment is suspended.

The bench further observed that it would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision.

These observations would equally apply when a prayer for stay of order of conviction is made so as to remove the disability to contest an election except, as already noted, in a very exceptional and rare case.

Whether Najib deserves a stay of conviction or not, the court order must be followed until it is set aside.

Now that Najib has filed an appeal to the Federal Court, it is left to the court to decide if the conviction stay was granted correctly or not.

Until that decision, confusion will reign if Parliament is dissolved and Najib submits his nomination to stand for election.

What then would the Election Commission do? – December 12, 2021.

* New Sin Yew is an advocate at AmerBon Advocates.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.


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