On 8 December 2021, Datuk Seri Najib Razak failed in his appeal to overturn his conviction and sentence involving the misappropriation of RM42 million from SRC International Sdn Bhd.

According to a news report, the Court of Appeal granted a stay of Najib’s conviction and sentence. Initially, I thought that only a stay of execution on 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 move is only logical. It ensures that the appeal will 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 appeal court subsequently allow the appeal and the person was exonerated, the loss and damage suffered during his or her imprisonment pending the appeal could never be reversed.  

Although not prohibited by law, it is quite unusual to see our courts grant a stay of conviction pending appeal.

Stay of conviction

The court’s power to order a stay of execution is found in section 57(1) of the Courts of Judicature Act 1964 (CJA) under the heading “Appeal not to operate as stay of execution”:

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 stay of conviction mean?

In Ravikant S. Patil, the appellant, an elected member of the Karnataka Legislative Assembly (KLA), was convicted and sentenced to imprisonment for seven years by the Sessions Court. He appealed against his conviction and sentence. Pending the appeal, the Bombay High Court granted a stay of the execution of the sentence. The KLA 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 had been disqualified due to his conviction, and that his nomination should not have been accepted. The Indian Supreme Court held that the appellant was not disqualified in light of the conviction stay granted by the High Court:   

Where the execution of the sentence is stayed, the conviction continues to operate. But 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, there is a caveat because Article 48(5) of our Federal Constitution (FC) could arguably put a different slant on the answer.

Let us first assume the situation where no conviction stay has been put in place. Najib will not be disqualified as a sitting Member of Parliament until his appeals and clemency process are completed (Article 48(4) of the FC). But 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 28 July 2020 constitutionally bars him from seeking a fresh mandate at the ballot box. This disability continues to date. 

The question now is, how does the stay of conviction granted to Najib impact the operation of Article 48(5) of the FC?

One interpretation is that 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”. The event occurred when Najib was convicted by the High Court. Because a stay of conviction does not render the conviction non-existent, but only makes it inoperative, the stay is irrelevant to Article 48(5). Thus, a conviction stay does not impact Article 48(5), and Najib is disqualified from standing in a General Election.

Another interpretation is that a conviction stay maintains Najib’s status as if no conviction had occurred. As the stay renders the conviction non-operative, it is not enforceable in law to treat Najib as a convicted person. The conviction is on hold until the stay is lifted. It follows then that Article 48(5) cannot come into play because no event of conviction can legally be relied on in the first place.

Based on the Indian cases cited above, I favour — albeit cautiously — the latter interpretation that Najib’s conviction stay disapplies the operation of Article 48(5) because his conviction is to be treated as if it never happened. It would seem that Najib is still eligible to contest in the upcoming national elections.

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 conviction without good reasons. The court has a duty to look into all aspects of the application to stay, including the ramifications of keeping the conviction in abeyance (Ravikant S. Patil).

One nagging question is whether the High Court and the Court of Appeal applied their judicial minds and properly evaluated the reasons for granting the conviction stay. Unfortunately, the written grounds of judgment are devoid of any considerations of the relevant factors regarding the stay. The High Court was explicit in its reasons to grant a stay of execution of sentence, but it did not mention anything about a stay of conviction. The Court of Appeal did not address the stay in writing. (It was thus not surprising that experts and practitioners initially assumed that only a stay of execution of the sentence was granted.)

The 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 that his current status as a Member of Parliament is not affected. Since Article 48(4) of the FC is clear that he would not be disqualified as an elected representative until his appeals and pardons process 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 they object? What was so exceptional regarding Najib’s case that a conviction stay was granted?

Coincidentally, the Supreme Court’s remarks made in the Ravikant S. Patil judgment regarding an earlier case are eerily applicable to Najib’s case today. This was what the court said:

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 correctly granted 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?