High Court rules Malaysian Bar can’t challenge Pardons Board over Najib’s shortened SRC jail term, says board’s advice part of process leading to Agong’s pardon
Former Malaysian Bar presidents Zainur Zakaria (left) and Datuk Yeo Yang Poh are seen at the Kuala Lumpur Court Complex on November 11, 2024. Both represented the Malaysian Bar in its legal challenge to the Federal Territories Pardons Board decision to halve the 12-year jail sentence of former prime minister Datuk Seri Najib Razak’s SRC International Sdn Bhd case. — Picture by Yusof Mat Isa
Monday, 11 Nov 2024 12:02 PM MYT
KUALA LUMPUR, Nov 11 — The Malaysian Bar today failed to get the High Court’s approval to proceed with its legal challenge against the Federal Territories Pardons Board’s decision to give advice to the Yang di-Pertuan Agong on pardoning former prime minister Datuk Seri Najib Razak, which led to the reduction of the latter’s 12-year jail term and RM210 million fine.
Judge Datuk Ahmad Kamal Md Shahid dismissed the Malaysian Bar’s application for leave to proceed with the court challenge, and did not order for costs to be paid.
“Therefore, for the above reasons, I’m of the considered view that this leave application is non-justiciable, frivolous and more importantly, there is no arguable case that granting the reliefs sought at the substantive hearing may be the resultant outcome,” the judge said.
While the Malaysian Bar had stressed that it was not challenging the Yang di-Pertuan Agong’s (YDPA) powers to grant pardon and was only challenging the Pardons Board’s decision to advise the YDPA to pardon Najib, the High Court today said this approach is flawed.
The High Court instead held the view that the Malaysian Bar was seeking to challenge the YDPA’s powers to grant pardon, and ruled that the prerogative or power to grant mercy under the Federal Constitution’s Article 42 is the YDPA’s sole discretion and not a power delegated to the FT Pardons Board.
The High Court said the prerogative or power to grant mercy under Article 42 cannot be reviewed by the courts, and said this was why the Malaysian Bar’s bid to challenge the FT Pardons Board’s decision cannot be reviewed by the courts.
Describing the Malaysian Bar as trying to “split” the YDPA’s pardon decision and the Pardons Board’s advice to the YDPA on Najib’s case, the judge said: “I am of the considered view that the applicant’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.”
Since the YDPA’s powers to grant pardon is not “justiciable” — meaning it cannot be reviewed by the courts — the judge said the Pardons Board’s advice to the King on the matter also cannot be reviewed or challenged in court.
The judge said this is because the “decision-making process” — leading to a matter which cannot be reviewed in court — should also be not justiciable or cannot be reviewed in court.
“I am of the considered view that the decision of the YDPA and the advice of the FT Pardons Board are all part and parcel of one process that culminated with the granting of pardon by the YDPA, consequently not a matter that is suitable and appropriate to be reviewed before the court,” the judge said.
Among other things, the judge said the YDPA has the sole discretion to decide on pardons, and it is the YDPA who makes the final decision on this and not the Pardons Board.
“Therefore, it is the considered view of this court that if the decision of YDPA to grant pardon is not susceptible to judicial review, it follows that the process leading to it is also not susceptible to judicial review,” the judge said, when concluding that the Agong’s pardon decision and the process that led to it cannot be reviewed by the court.
Former prime minister Datuk Seri Najib Razak is seen at the Kuala Lumpur Court Complex October 18, 2024. — Picture by Raymond Manuel
In its court challenge filed on April 26 via a judicial review application, the Malaysian Bar is seeking a court declaration that the Federal Territories Pardons Board’s January 29 decision to reduce Najib’s jail time to six years and fine to RM50 million is unlawful, unconstitutional and void.
The Malaysian Bar — a professional body representing lawyers in Peninsular Malaysia and the Federal Territories — is also seeking a court order to quash the Pardons Board’s decision to reduce Najib’s sentence.
The Malaysian Bar also wants a court order for a permanent injunction to stop Najib from submitting any application for pardon until and unless he has publicly accepted responsibility for his actions for which he has been convicted for, and until and unless he has expressed repentance and remorse for those actions.
The Malaysian Bar also wants a court order to prevent the Pardons Board from accepting or considering or deciding on his pardon applications until and unless the same things take place.
Since the Malaysian Bar failed to get leave today for judicial review, it cannot proceed to have its lawsuit heard.
When met by reporters here, lawyer Datuk Yeo Yang Poh said that the legal team would take instructions from the Malaysian Bar on whether an appeal would be filed against today’s ruling.
Yeo, a former president of the Malaysian Bar, had represented it in the court case.
Also representing the Malaysian Bar in this case was former Malaysian Bar president Zainur Zakaria.
The attorney-general, which had objected to leave being granted to the Malaysian Bar, was represented by senior federal counsel Ahmad Hanir Hambaly@Arwi.
Najib, who managed to join the civil court case as a second putative respondent, was not present in the courtroom today.
Najib was represented today by lawyers Muhammad Farhan Muhammad Shafee and Wan Mohammad Arfan Wan Othman.
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