Bar: High Court judge erred in dismissing leave bid to initiate judicial review

 

The Malaysian Bar in its memorandum of appeal, contends that the High Court judge made an error in dismissing its application for leave to initiate a judicial review to challenge the Federal Territories Pardons Board’s decision to reduce Najib Abdul Razak’s prison sentence and fine in the SRC International Sdn Bhd case.

In the memorandum of appeal filed at the Court of Appeal through legal firm Tetuan Amir & Rajpal Ghai on Jan 23, this year, the Bar argued that Ahmad Kamal Md Shahid (now a Court of Appeal judge) had erred when he rejected its leave application on the sole reason that it was not justiciable.

It said there were several novel questions of law concerning important amendments made to the Federal Constitution.

The Bar said the High Court judge had also erred in summarily deciding that all the novel questions of law contended by the Bar were entirely unarguable and that none of the questions required full and in-depth submissions and deliberation at the substantive stage.

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In the memorandum of appeal sighted by Bernama, the Bar also said the High Court judge was wrong in summarily dismissing its contention that Article 40 (1A), introduced into the Federal Constitution on June 24, 1994, has significantly changed the law.

The Bar said the constitutional function of the Yang-di-Pertuan Agong to grant pardons and reprieves was previously regarded as a “royal prerogative” exercisable by the Yang di-Pertuan Agong at his personal discretion without having to accept the Pardons Board’s advice.

It contended that the Constitutional Amendment now requires the Yang di-Pertuan Agong, in carrying out his function and exercising his power of pardons and reprieves, to “accept and act in accordance with” the advice of the Pardons Board.

The Bar said the previously found element of personal discretion and prerogative has thus been removed by the said Constitutional Amendment. In the memorandum of appeal, the Bar has requested for its appeal to be allowed.

Bar’s application

The Bar filed an appeal to the Court of Appeal against the High Court’s decision on Nov 11 last year in rejecting its application for leave to initiate the judicial review.

The Bar's leave application to commence the judicial review was filed on April 26 last year. It named Najib, the Pardons Board of the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya as respondents.

The Bar is seeking 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.

It is also seeking a declaration that the Pardons Board's decision to reduce the former prime minister’s fine from RM210 million to RM50 million, illegal, unconstitutional and invalid.

Najib, 71, has been serving his sentence at Kajang Prison since Aug 23, 2022, after being convicted of misappropriating RM42 million from SRC International Sdn Bhd.

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 RM210 million to RM50 million.

- Bernama