KUALA LUMPUR (Dec 22): The latest High Court decision against Datuk Seri Najib Razak's house arrest bid may have taken away Malay Rulers' full discretion of pardon and clemency, said the convicted former prime minister's lead counsel.
The decision, which ruled that the Yang di-Pertuan Agong cannot decide independently of the Pardons Board, removed the King's wide latitude to give orders such as for Najib to undergo the remainder of his jail term under house arrest, claimed Tan Sri Muhammad Shafee Abdullah.
Among the rulers, the Selangor Sultan, Sultan Sharafuddin Idris Shah, prior to this said that a royal pardon should not be granted arbitrarily for the sake of certain parties.
Sultan Sharafuddin said the people should understand that the pardon process has to be done in accordance with the law, as enshrined in the Federal Constitution and other existing laws.
At a press conference following the High Court decision, Shafee said the non-discretionary power of the Yang di-Pertuan Agong or the Malay Rulers to grant pardon had never been questioned before, but this was addressed by the court on Monday.
Najib lost his bid on Monday after High Court judge Alice Loke Yee Ching ruled that the additional order issued by the then-King was not valid. Although the Ruler has the prerogative to exercise mercy, she continued, the act must be within the constraint of the Federal Constitution, particularly Article 42 on the power of pardons.
WATCH: Royal prerogative of mercy compromised, says Shafee
Urging the Rulers to scrutinise Loke's judgement, Shafee said the court decision "compromised" and "limited" the powers of the King or Yang di-Pertua Negeri because pardon decisions need to be made "within the confines of the Board".
“One [reason] you must be concerned with today’s decision is that it has taken away the fullest prerogative of mercy not only by the Yang di-Pertuan Agong but [also by] the Malay Rulers, [it] has taken away a wide latitude given to them," Shafee said.
“With the decision today, we make the conclusion that the Agong or Malay Rulers cannot make a decision unless he makes a decision with the Pardons Board. He (the Ruler) must be sitting with the Pardons Board and then make the decision. Whereas, we know that in practice the Rulers as well as the Agong [are] only obligated to be with the Board to discuss and after discussing and hearing their opinion, he need not have to decide in the Pardons Board,” he added.
“Today’s position seems to suggest that every position pertaining to the Pardons Board must be made within the Board. That has taken away what the Agong and the Malay Rulers have enjoyed: the full discretion of the pardon and clemency."
In gist, Loke dismissed Najib’s judicial review application for him to serve the remainder of his jail sentence until Aug 22, 2028, under house arrest.
Shafee has indicated he had instructions to appeal Monday's decision to the Court of Appeal and to the Federal Court.
Another point of contention was how the court ruled the releasing licence of a prisoner now falls within the Prisons Department commissioner general, and nobody else — not even the Agong or the minister.
“So the court has given the commissioner general the sole power. Whereas in Datuk Seri Anwar Ibrahim’s pardon case (2018) the allegation was there was not even a Pardons Board meeting, there was no report by the Attorney General — in fact the AG was on garden leave, the AG didn’t even attend. So how come such defects are alright?” Shafee asked.
Original addendum order relevant
Meanwhile, Shafee questioned the dismissal of Najib's request for the original addendum order to be produced in court, as he claimed it would have proven that the then-AG knew of its existence earlier but took no action.
“She (the judge) failed to understand why we need the original addendum order. On Jan 29, 2024, the meeting of the Pardons Board, there were two orders, one on the reduction of the sentence made, and then, there was the addendum order.
“If you see the original (addendum order), you may know who had the original [copy]; it was addressed to the highest government officer, namely then-AG Tan Sri Ahmad Terrirudin Mohd Salleh.
"It was drafted with the knowledge of the AG, isn’t that relevant?" Shafee asked.
When asked by reporters about Najib’s response to Loke’s decision, Shafee said that naturally, the former prime minister was disappointed with the outcome, and he reiterated that his client didn’t get a fair trial.
Najib is serving his 12-year jail sentence and RM210 million fine after being convicted of seven counts of abuse of power, criminal breach of trust and money laundering of SRC International Sdn Bhd funds.
His sentence had been halved, as announced by the Federal Territory Pardons Board on Feb 2, 2024, to six years and to run until Aug 22, 2028, and the fine had been reduced to RM50 million before the addendum issue came about.
