PUTRAJAYA (Feb 14): The Malaysian Bar stipulates that the High Court was wrong in dismissing its application for leave to challenge former prime minister Datuk Seri Najib Razak’s reduced sentence, as following the 1994 federal constitutional amendment, the Yang di-Pertuan Agong is bound to act on the advice of the Federal Territories Pardons Board.
In the Bar’s memorandum of appeal filed on Jan 23 this year to the Court of Appeal, it said the Agong in exercising the powers of pardon and reprieve has to “accept and act in accordance with” the advice of the board.
It said the inclusion of Article 40(1A) of the Federal Constitution on June 24, 1994, had changed the law with regards to “royal prerogative” by removing the Agong’s personal discretion.
“The previously found element of personal discretion and prerogative has thus been removed by the constitutional amendment,” the Bar said in its memorandum filed by Messrs Amir & Rajpal Ghai.
It is to be noted the amendments to Article 40(1A) were brought about during Tun Dr Mahathir Mohamad's first tenure as prime minister which sought to limit the Agong's power.
This is one of the grounds in the Bar’s appeal to the Court of Appeal over the High Court’s decision on Nov 11 to dismiss the Bar’s challenge against the Pardons Board's decision to reduce Najib's prison sentence and fine in the SRC International Sdn Bhd case, in which Najib has been convicted of abuse of power, money laundering and criminal breach of trust.
To add another dimension to the case, Najib also claimed there is a purported royal addendum which allows him to serve the remainder of his jail sentence under house arrest.
The Bar added that while the Agong’s discretion was considered “non-justiciable” because it was a result of a non-justiciable act of “royal prerogative” advice of the Pardons Board being non-binding on the Agong, it is no longer so now (with the purported addendum).
“The Agong has now to accept and act in accordance with a decision and advice of the Pardons Board.
“The said constitutional amendment has changed the fundamental nature of the constitutional act of granting pardons or reprieve, from one in the nature of 'royal prerogative' to one that is now free of personal discretion and that is now strictly a constitutionally required implementation of a decision and advice of the Pardons Board,” the Bar said in the memorandum.
It added that High Court judge Datuk Ahmad Kamal Md Shahid (now Court of Appeal judge) should have granted leave (permission) for its judicial review and that the court had erred in summarily dismissing the matter.
“These are novel questions of law concerning important amendments to the Federal Constitution and there is no precedent or authority to be found in which these questions had been raised by any party, addressed, considered or decided upon after full arguments,” it said.
Following this, the Bar hopes the appellate court would consider granting leave (permission) for its application to be heard on its full merits as the threshold is low.
Ahmad Kamal in his Nov 11 decision ruled the issue of pardons is non-justiciable, and it is the prerogative of the Agong.
"I am of the considered view that the decision of the [then] Agong 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.
At the same time, Najib, whose initial 12-year jail sentence and fine of RM210 million has been reduced to six years and a RM50 million fine, had been granted leave last month by a majority Court of Appeal bench to have his bid to serve the remainder of his sentence under house arrest be heard on its merits.
Following that, Najib’s application is currently pending at the High Court. However, the Attorney General's Chambers, representing the government, had sought leave from the Federal Court to appeal against the appellate court decision on the purported royal addendum.