KUALA LUMPUR: The Malaysian Bar has filed its grounds of appeal claiming that the High Court has erred in not allowing it to seek to quash the Pardons Board’s decision which reduced Datuk Seri Najib Razak’s prison sentence and fine.
It said High Court judge Justice Ahmad Kamal Md Shahid made the error when he dismissed its leave application solely on grounds that it was not justiciable.
The Malaysian Bar was then trying to initiate a judicial review process at the High Court to quash the Federal Territories Pardons Board’s decision to reduce the former prime minister’s sentence in the SRC International Sdn Bhd case.
In the memorandum of appeal that was filed through Messrs Amir & Rajpal Ghai last month at the Court of Appeal, the Malaysian Bar said the leave application named several novel issues that the court should investigate and determine.
“The judge erred in summarily dismissing the applicant’s contention that Article 40 (1A) introduced into the Federal Constitution on June 24, 1994 has significantly changed the law,” it stated.
According to the Malaysian Bar, the constitutional function of the Yang di-Pertuan Agong to grant pardons and reprieves was previously regarded as a “royal prerogative” exercisable by the monarch at his discretion without having to accept the Pardons Board’s advice.
“The amendment now requires the King to ‘accept and act under’ the advice of the Pardons Board.
“The previously found element of personal discretion and prerogative has thus been removed,” it said.
The Court of Appeal has fixed March 3 for case management of the appeal.
In November last year, the presiding judge, Justice Ahmad Kamal Md Shahid (now a Court of Appeal judge), had ruled that the application for leave to start a judicial review proceeding was non-justiciable and frivolous as the decisions of the Yang di-Pertuan Agong and the Pardons Board were part and parcel of one process that culminated with the granting of pardon by the King.The Malaysian Bar’s leave application to commence the judicial review proceedings was filed on April 26 last year, naming the Pardons Board of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, as well as Najib, as respondents.
It is seeking, among others, a declaration that the Pardons Board’s decision on Jan 29, 2024, to halve Najib’s prison sentence, which would result in an early release on Aug 23, 2028, is illegal, unconstitutional and invalid.
The Malaysian Bar is also seeking a declaration that the Pardons Board’s decision to reduce Najib’s fine from RM210mil to RM50mil is illegal, unconstitutional and invalid.
During the proceedings at the High Court, Senior Federal Counsel Ahmad Hanir Hambaly @ Arwi and Najib’s lawyer Tan Sri Muhammad Shafee Abdullah argued that there was nothing novel in the application and that the Malaysian Bar was actually challenging the King’s decision to grant the pardon, which had already been considered by various cases in the past which were non-justiciable.
Ahmad Hanir told the court that it was the prerogative power of the King to grant pardons, and hence, there was no issue for determination of facts, as it was not a complex issue as the matter had been supported by case laws in the past.
Najib, 71, has been serving his sentence at Kajang Prison since Aug 23, 2022, after being convicted of misappropriating RM42mil from SRC International.
He filed a petition for a royal pardon on Sept 2, 2022, which led to the Pardons Board’s decision to reduce his prison sentence from 12 years to six years and his fine from RM210mil to RM50mil.
