LETTER | Former prime minister Najib Abdul Razak’s house arrest saga took a turn this week with the Court of Appeal's decision sparking debate and backlash.

Personally, I think the cheering and wonton swearing that ensued are a little overblown and premature.

While Najib did win his appeal, it only means that he now has to go through the process at the High Court to argue that he was promised house arrest as part of his successful pardon bid.

King’s prerogative and the Pardons Board

There is plenty of anger against Prime Minister Anwar Ibrahim and Pakatan Harapan for allowing this to happen.

Of course, they control the federal government (soft reminder, with Umno in tow) and should have blocked whatever pardon application put forth by Najib, right?

Here’s a reality check. The power to grant and issue pardons lies solely with the Yang di-Pertuan Agong, sultans, and governors.

While respective Pardons Boards are convened under each of these monarchs and governors, their advice is non-binding. This means the monarchs and governors can decide on clemency and ignore the advice provided by the board.

Fundamentally, pardons are a tool for mercy, not justice. The pardon process is not meant to perfect flaws of the justice system but to provide a leeway for mercy when justice is not the solution.

As flawed as our system is, making the pardon process more rigid leads us to what we see in Singapore - where no institution is willing to budget for and grant mercy even to those who deserve it.

On the other hand, making it more lenient leaves us with what we have - a process that feels arbitrary and prone to frustrating all parties involved, criminals and victims alike.

A quick pardon

Let me make it clear I am angered by the idea that Najib successfully secured his pardon bid so early in his sentence when others have had to wait for decades.

I am angered that Najib will breathe free air again while others who desperately need a pardon have no such luxury.

For the record, most spend decades behind bars before they hear any news of a pardon coming their way.

Jamil Arshad was arrested when he was 23 years old and spent 40 years in prison before the Johor sultan granted him clemency in 2023. Similarly, Chong Yun Fak spent 37 years in prison before he received clemency from the Johor ruler.

However, pardons for those who deserve mercy are in no way guaranteed. Thanakorn Sinsanoi is still in a hospital bed, paralysed from the neck down, despite public scrutiny and questions when the news broke last year.

Even our much-criticised prime minister had to endure prison with his health complications. I still remember the news where he had to watch the 2018 swearing-in of Dr Mahathir Mohamad as prime minister on a hospital television.

But here we are, watching Najib beat his chest over the injustice of having to be in prison for a lesser sentence because he believes he ought to be under house arrest.

Letting Najib walk?

I understand and share the anger and frustration as Najib has seemingly gotten away with his crime. His crimes are not merely theft, but also violence against Malaysians.

While his repression was much milder than those of Mahathir and reformasi eras, they were violent nonetheless. We want him to pay for the butcher’s bill.

Yet, a small part of me looked at the development and thought, “Professionally, I should not hate this”.

Set aside that this is Najib we are talking about and swallow the anger for a second, what moral standards are we setting for ourselves when we demand for a 71-year-old non-violent offender (with some known health issues) to be kept in prison?

We have been looking at various policies to reduce prison populations and reform elements of our criminal justice that are disproportionate and unfair.

We abolished the mandatory death penalty and ended indefinite prison sentences. We experimented with parole and licensed release. Maybe it is time we explore and develop policies around house arrest and the appropriate sentencing guidelines behind it.

If our anger against Najib is the reason we take a closer look at decarceration and the policies we should have in place, maybe there is some good in this whole fiasco.

And in case Najib or his family is reading this, I can understand why you are pissed that your ticket home was written in a post-script that no one believes in.

Now, while you struggle for your freedom, do your part to set things right for the rest of those awaiting clemency.

Writer is the CEO of Hayat, an NGO dedicated to advocating for rehabilitative and restorative justice.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.