Above the Law? The Curious Case of Political Immunity

PRESIDENTS are not kings. And neither is a prime minister.

But today, even in a country that is typically known as being the oldest modern democracy, we observe that political leaders are receiving somewhat similar treatment as the hereditary rulers of the past.

The newly-minted president of the United States of America, Donald Trump, has had several charges against him in the past few years. While some thought it was enough to keep people from voting for him, the November 2024 presidential election result showed otherwise.

Similar in Malaysia, court charges and convictions seem to not deter voters.

Some charges against Donald Trump stem from his presidential campaign in 2016 related to hush money to adult film star Stormy Daniels. In May 2024, he was found guilty on all 34 charges.

However, he escaped any form of punishment when the judge granted him an unconditional discharge on Jan 10, 2025. The judge argued, “This court has determined that the only lawful sentence that permits entry of judgment of conviction without encroachment on the highest office of the land is a sentence of unconditional discharge.”

In other words, he will be inaugurated as the 47th president, so there’s that.

Trump was also supposed to be charged for inciting insurrection on Jan 6, 2021, for allegedly calling on his supporters to overturn the result of the 2020 presidential election. However, this case against him was dropped just a few days before his inauguration due to, “The (Justice) Department’s position...that the Constitution requires that this case be dismissed before the defendant is inaugurated.”

In other words, they cannot go after a sitting president.

The word discharge has become too familiar to followers of Malaysian politics. Specifically, the term Discharge Not Amounting to Acquittal (DNAA) has entered our everyday lexicon to refer to politicians who were facing charges in court but eventually escaped.

It's funny that we became a democracy because we valued the rule of law. No one, and I mean no one, should be above the law. However, in the case of Donald Trump and America, a concept known as presidential immunity exists.

It even became the subject of congressional hearings last year after the Supreme Court decided that a president has immunity from criminal prosecution for “official acts.” During the hearing in September 2024, Senator Ted Cruz insinuated that since President Barack Obama was not prosecuted for the drone killing of Anwar al-Awliki, an American citizen, neither should Donald Trump for his role in the election interference.

The cases of Malaysian politicians are slightly different. Datuk Seri Sri Najib Razak cannot demand immunity for his convictions on the various 1MDB-related cases. What Najib is currently doing is asking to commute his already reduced six-year prison sentence to house arrest based on a decision made by our former Yang di-Pertuan Agong. Since this is Malaysia, I will not say anything else on that decision.

Najib’s supporters, of course, rally behind this demand for house arrest. But the question is, on what basis? Some have said that he deserves leniency due to his contributions to the rakyat as prime minister. At this point, I would like to inquire about the level of immunity or leniency we should accord to our democratically elected leaders.

Should all punishments be meted out when leaders commit a crime, or do they deserve leniency based on track records? If that is the case, I believe even the worst of offenders can find some good they have done. But I digress. I am not a lawyer after all.

I do believe in leniency on humanitarian grounds. But it must also come along with remorse. Otherwise, the law turns into a farce. Are good deeds enough to forgive mistakes that either cause bodily harm or cost the rakyat billions in ringgit?

Even if justice is not solely about retribution, the absence of punishments would lead individuals to act irresponsibly. And it is an open secret that the world is already full of loopholes for people with wealth and power.

What I’m trying to say is that we need to figure out whether we want to treat our leaders as fellow citizens who are equal as the rest of us, or do they deserve special treatment by being the first among equals? Are we a democracy with rule of law, or are we nostalgic for a past when our leaders can do no wrong?

In my opinion, Malaysians tend to exaggerate the addendum crisis. It is now a legal question of how to deal with the existence of this addendum within the existing framework. What it is not is a free ticket to get out of prison. How much of our democracy do we want to compromise?

Syaza Shukri, PhD, is an associate professor and the current Head at the Department of Political Science, IIUM. The views expressed in this article are the author's own and do not necessarily reflect those of Sinar Daily.