Agong's prerogative over Najib's partial pardon can't be challenged: Court

 

The Yang di-Pertuan Agong’s constitutional prerogative to grant a partial pardon to former prime minister Najib Abdul Razak cannot be questioned in court, a civil court judge ruled this morning.

Judge Ahmad Kamal Md Shahid made the ruling at the Kuala Lumpur High Court when denying leave for the Malaysian Bar to commence a judicial review against the Pardons Board’s advice to the king to reduce the former prime minister’s jail time and fine.

In the RM42 million SRC International abuse of power, criminal breach of trust, and money laundering case, the advice resulted in Najib’s 12-year jail term and RM210 million fine being slashed to six years and RM50 million respectively.

The Bar sought court leave to proceed with its judicial review to challenge the Pardons Board’s advice to reduce Najib’s sentence on Jan 29.

Kamal in his ruling said the Bar’s legal action is non-justiciable as the Agong’s royal prerogative and the board’s advice process are one and the same.

“In this present case, I find that the prerogative of mercy pursuant to Article 42 of the Federal Constitution is the direct exercise of the Agong’s sole discretion and not the Federal Territory (FT) Pardons Board or the power delegated to the FT Pardons Board.

“Given the above, this court is of the considered view that the prerogative of mercy pursuant to Article 42 of the Constitution is not susceptible to judicial review.

“Hence, the reliefs sought to challenge the decision of the FT Pardons Board are, by its nature and subject matter, not justiciable to judicial review,” Kamal ruled.

Bar’s argument flawed

The judge disagreed with the Bar’s arguments that it merely challenged the board’s royal advice rather than His Majesty’s constitutional discretion.

He pointed out that the relief sought by the Bar in effect amounted to challenging the power of royal prerogative of mercy preserved by Article 42.

“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 Agong is flawed,” Kamal said.

“I am of the considered view that the decision of the Agong 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 Agong, consequently not a matter that is suitable and appropriate to be reviewed before the court,” the judge said.

The judge made no order as to costs after dismissing the judicial review leave bid.

“I am 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,” Kamal ruled.

When met by the media after proceedings, the Bar’s counsel Zainur Zakaria said he would take instructions on whether to appeal to the Court of Appeal.

Via the judicial review leave application filed in April, the Bar wanted to strike down the board’s advice to the king on the ground that it allegedly violated an individual’s fundamental right to equality before the law.

The legal profession body claimed this was an infringement of the right under Article 8 of the Constitution as it gives Najib special treatment that is not normally accorded to the other 70,000 convicted prisoners in 30 prisons in Malaysia.

Senior federal counsel Ahmad Hanir Hambaly appeared for the board, which is the first respondent.

Lawyer Muhammad Farhan Muhammad Shafee acted for Najib, the second respondent. - Mkini