KUALA LUMPUR: The Kuala Lumpur High Court’s decision to dismiss former prime minister Datuk Seri Najib Razak’s judicial review application over an addendum order allowing him to serve the remainder of his prison sentence under house arrest has raised a number of obscure and novel constitutional points that must be resolved by the apex court on appeal.
Former Malaysian Bar chairman Salim Bashir Bhaskaran said the decision by High Court judge Alice Loke today, which ruled that the addendum order was invalid for failing to comply with Article 42 of the Federal Constitution, appeared to suggest that the Yang di-Pertuan Agong cannot act independently in matters involving pardons.
“In essence, the judge said that the order contained in the addendum was not enforceable because it was not deliberated during the Pardons Board meeting in January 2024 and, as such, did not satisfy the constitutional requirements under Article 42 of the Federal Constitution,” he said.
Najib’s prison sentence in the SRC International case was reduced from 12 years to six, and his fine lowered from RM210 million to RM50 million, following an announcement by the Federal Territories Pardons Board on Feb 2, 2024.
However, in his leave application filed in the High Court on April 1, 2024, Najib, 72, claimed that the former Yang di-Pertuan Agong, Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, had issued a supplementary decree during the Federal Territories Pardons Board meeting on Jan 29, 2024, allowing him to serve the remainder of his reduced jail term under house arrest.
Najib had sought a mandamus order to compel the respondents to confirm and disclose the existence of the purported document dated Jan 29, 2024. He named the Home Minister, the Commissioner-General of Prisons, the Attorney-General, the Pardons Board for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, the Minister in the Prime Minister’s Department (Law and Institutional Reform), the Director-General of the Legal Affairs Division in the Prime Minister’s Department, and the Government of Malaysia as respondents.
On Aug 13 this year, the Federal Court remitted the case to the High Court for a hearing on its merits before a new judge after dismissing the Attorney-General’s application for leave to appeal the Court of Appeal’s decision relating to the addendum.
In dismissing Najib’s judicial review application today, Loke ruled that the addendum order was invalid as it did not comply with Article 42 of the Federal Constitution.
She said the addendum order was neither deliberated nor decided upon during the 61st Pardons Board meeting on Jan 29, 2024.
“The respondents have no power and no duty to obey or enforce it. Conversely, the applicant has no right to the relief of mandamus. In the circumstances, the judicial review is therefore dismissed. I make no order as to costs,” she said.
Salim said numerous past court decisions had affirmed that the prerogative of mercy is an absolute power vested in the Agong and the state rulers, and that such discretion, as conferred by the Federal Constitution, is not subject to judicial review.
“The High Court’s ruling today is at odds with earlier decisions, including Datuk Seri Anwar Ibrahim v Mohd Khairul Azam, which maintained that the Agong is not bound by advice and that his discretion is not susceptible to judicial review,” he said.
“Today’s decision signals that all decisions of the Agong must go through the Pardons Board. However, previous cases suggest that the Agong possesses absolute power and is not bound by the board’s advice or decision,” he added.
“This now implies that the Agong is bound by the advice of the Pardons Board and that all decisions must be deliberated and formalised by the board.”
Salim noted, however, that the key distinction between earlier cases and Najib’s application lay in the issue of a supplementary order allegedly issued by the Agong outside the deliberations of the Pardons Board.
Najib’s lawyer, Tan Sri Shafee Abdullah, said his client would file an appeal against the High Court’s decision.
“He is very disappointed with the decision,” Shafee said.
Speaking to reporters outside the Kuala Lumpur Court Complex in Jalan Duta, Shafee said the ruling had “taken away the fullest prerogative of mercy not only of the Yang di-Pertuan Agong but also of the Malay rulers and governors”.
“Today’s decision suggests that every decision on pardons must be made within the Pardons Board. This takes away what the Agong and the Malay rulers have traditionally exercised in matters of pardon. These powers must remain intact,” he said.
“Today’s decision allows the power of the Yang di-Pertuan Agong to be diluted because his decision must now be made within the confines of the Pardons Board, which we believe is incorrect,” he added.
Shafee also said Loke’s ruling, which held that the addendum order was not made during a Pardons Board meeting and could therefore be set aside, opened the door to political exploitation.
“This has never happened before,” he said.
He added that the court had also ruled that only the Director-General of Prisons could issue an order for house arrest.
“The ruling today suggests that the Director-General of Prisons has more power than the Yang di-Pertuan Agong. That turns logic on its head,” he said.