King has the power to grant pardons, says Najib’s lawyer

 

Najib Razak is opposing an application by the Malaysian Bar for leave to commence judicial review to challenge the pardon granted to him following his conviction in the SRC International case. (Bernama pic)

KUALA LUMPUR: 

The Federal Constitution allows the Yang di-Pertuan Agong to exercise his personal discretion when exercising his power to grant pardons, the High Court heard today.

Lawyer Shafee Abdullah said Article 40(2) of the constitution allows the king to exercise his personal discretion in the performance of several powers, including when appointing a prime minister, withholding consent to dissolve Parliament, requisitioning a meeting of the Conference of Rulers, and in any other case mentioned in the constitution.

Article 42 also gives him the power to grant pardons, which is not a functional duty,

 he said.

Shafee, appearing for Najib Razak, was submitting to oppose an application by the Malaysian Bar for leave to commence judicial review to challenge the Federal Territories Pardons Board’s decision to reduce the sentence imposed by the courts on the former prime minister following his conviction in the SRC International case.

Justice Ahmad Kamal Shahid had on July 2 allowed Najib to intervene in the Bar’s ex-parte application on grounds that he is a putative (or presumed) respondent in the proceedings. Najib was named by the Bar as the second respondent in the suit and would be a party to proceedings if leave was granted.

Shafee said the king has distinct powers and functions under the constitution.

He said Article 40(1A) envisages the performance by the monarch of a public function, for which he is obliged to act in accordance with the advice of the Cabinet.

However, the power to pardon is within the personal discretion of the king, Shafee told the judge.

The Pardons Board can only advise the king but he is not bound by it. The ruler is all-powerful when it comes to giving clemency,

 he said.

Shafee said the king and the Pardons Board are separate entities, pointing to Article 42(8) which states that 

he shall preside over it

 as opposed to merely chairing it.

The senior lawyer also said the Bar had no locus standi to bring the action as a motion passed at the annual general meeting (AGM) did not conform to the provisions contained in Section 64 of the Legal Profession Act 1976.

The March 16 meeting is invalid as it lacked a quorum,

 Shafee said, adding that a meeting should have been held the following day to give time for members to be present.

Shafee said it was unlawful for the Bar to convene the adjourned meeting on the same day after the originally scheduled meeting failed to achieve a quorum.

Section 64(4) of the Legal Profession Act 1976 provides that the quorum for an AGM shall be 500 members of the Bar; and that no business shall be transacted unless a quorum is present when the meeting proceeds to business.

Section 64(5) provides that if no quorum is present within an hour, the meeting shall be adjourned to the following day unless otherwise notified to the members by the Bar Council in the notice convening the original meeting. It also provides that if no quorum is present within one hour from the time appointed for holding the adjourned meeting, the members present shall constitute the quorum.

Lawyer Zainur Zakaria, appearing for the Bar, said Najib was not entitled to challenge the AGM’s validity by merely submitting an affidavit affirmed by a lawyer who did not attend the meeting.

He should have filed a separate application to seek a court declaration,

 he said.

Zainur also said an amendment to the constitution in 1994 removed the absolute discretion of the king to grant pardons, with Article 40(1A) now stipulating that the head of the federation shall accept and act on advice in the exercise of his functions under the constitution.

Lawyer Yeo Yang Poh, appearing as co-counsel with Zainur, submitted that Shafee’s use of the words 

power

 and 

function

 was misleading.

I say it is a red herring. These words co-exist. For example, judges must have power to perform their functions,

 he added.

Yeo said the Pardons Board’s advice constituted a decision that must be accepted by the king.

The board’s decision is therefore subject to judicial review by the court. Leave ought to be granted as the threshold (for leave) is very low,

 he added.

Senior federal counsel Ahmad Hanir Hambaly submitted that the Bar’s leave application to review the board’s decision should be dismissed as the king has the prerogative to grant clemency.

Ahmad Kamal will deliver his decision on Nov 11.

Najib was convicted by the High Court for abuse of power, money laundering and criminal breach of trust in the SRC International case and was sentenced to 12 years’ imprisonment and fined RM210 million.

The conviction and sentence were affirmed by the Court of Appeal on Dec 8, 2021 and the Federal Court on Aug 23, 2022.

Najib, 71, began serving his sentence at Kajang prison immediately following the dismissal of his final appeal by the apex court.

On Feb 2 this year, the Pardons Board announced that it had halved his jail term to six years and reduced his fine to RM50 million.

Najib is scheduled to be released on Aug 23, 2028.

The Pardons Board is headed by the king and consists of the attorney-general, the federal territories minister, and a maximum of three other members appointed by the king.

In early April, Najib applied to the High Court to compel the government to produce a purported addendum issued by the previous Yang di-Pertuan Agong Al-Sultan Abdullah Sultan Ahmad Shah allowing him to serve his sentence under house arrest.

Justice Amarjeet Singh refused Najib leave for the merits of his case to be heard. Najib has appealed against the decision.

Najib has three other ongoing criminal cases. - FMT