KUALA LUMPUR (Nov 11): The High Court has dismissed the Malaysian Bar's application for leave (permission) to mount a legal challenge against the Pardons Board's decision to reduce former prime minister Datuk Seri Najib Razak’s prison sentence and fine in the SRC International Sdn Bhd case.
Judge Datuk Ahmad Kamal Md Shahid dismissed the application on Monday, on the grounds that the issue of pardons is non-justiciable, and it is the prerogative of the Yang di-Pertuan Agong (YDPA).
"I am of the considered view that the decision of the [then] YDPA and the advice of the Federal Territories Pardons Board were all part and parcel of one process that culminated in the granting of a pardon by the YDPA. Consequently, it is not a matter that is suitable and appropriate to be reviewed before the court," he said.
The former prime minister is currently serving his prison sentence, after the apex court dismissed his appeal and review bid against his conviction in the SRC case. SRC is a former subsidiary of 1Malaysia Development Bhd (1MDB).
In February, the Pardons Board reduced his initial 12-year jail sentence and fine of RM210 million to six years and a RM50 million fine.
The Bar filed the application in April, naming the Pardons Board of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, as well as Najib, as respondents.
It was seeking a declaration that the Pardons Board's Jan 29 decision to halve Najib's prison sentence, which would result in an early release on Aug 23, 2028, was illegal, unconstitutional and invalid.
It was also seeking a declaration that the Pardons Board's decision to reduce Najib's fine from RM210 million to RM50 million, with the condition that failure to settle it would extend his prison term by a year, resulting in early release on Aug 23, 2029, was illegal, unconstitutional and invalid.
'Final decision not-justiciable, so is decision-making process'
In his grounds of judgement, Ahmad Kamal also found that the "prerogative of mercy" in Article 42 of the Federal Constitution is the "direct exercise" of the YDPA's and not the Federal Territories Pardons Board’s or powers that were delegated to the board.
The Bar had argued that it was not questioning the YDPA's prerogative, but was challenging the advice by the Pardons Board to the YDPA.
The court, however, was of the view that this argument was "flawed".
"In essence, the [Bar] is splitting the decision of the YDPA and the advice from the Pardons Board. I am of the considered view that the [Bar's] attempt to differentiate between challenging the advice of the Pardons Board and the actual decision of the YDPA is flawed — it is non-challengeable," he said.
He ruled that since the decision to grant a pardon was non-justiciable, therefore the decision-making process leading to that decision was also non-justiciable.
Ahmad Kamal ordered no order as to cost.
Lawyers Zainur Zakaria and Datuk Yeo Yang Poh appeared for the Bar, while senior federal counsel Ahmad Hanir Hambaly @ Arwi appeared for the attorney general.
Najib, who was allowed to intervene as a putative respondent, was represented by Farhan Shafee and Wan Mohammad Arfan Wan Othman.
It is understood that lawyers for the Bar will seek instructions on whether to appeal against the decision.