Bar risks credibility by challenging Najib’s pardon in court

 

From Ibrahim M Ahmad

On April 26, it was reported that the Malaysian Bar had commenced legal proceedings to challenge the pardon granted by the former king to Najib Razak.

The Bar Council said it was authorised to do so by a resolution passed at the Bar’s annual general meeting (AGM) held on March 16.

But was the mandate secured in accordance with the law?

Under Section 64(4) of the Legal Profession Act 1976 (LPA), an AGM can only proceed if a quorum of 500 members is present. The provision says: “No business shall be transacted at any AGM unless a quorum is present when the meeting proceeds to business.”

Section 64(5) of the LPA provides that if no quorum is present after an hour, the meeting shall be adjourned to the following day, unless the Bar Council has said otherwise in its notice of meeting. The same provision goes on to say that if at an adjourned AGM no quorum is present after one hour, the members present shall constitute the quorum.

In a circular to members dated Feb 21, the Bar Council gave notice that the AGM would be held at 10am on March 16. The notice also said: “If the quorum is not present by 11am, the AGM shall be adjourned to 11:15am on the same day.”

As it turned out, no quorum was present at 11am to allow the AGM to proceed. The meeting was then adjourned to a mere 15 minutes later.

Then, at 12.15pm, the adjourned AGM was called to order, with the 401 members present constituting the quorum.

Incoming Bar president Ezri Wahab later told the press that the “Najib” resolution was passed with 238 members voting in favour, and one against.

Now, the Bar will argue that it has complied with the letter of the law. But was that the intention of Parliament?

It is unlikely that the drafters of the law would have intentionally allowed for an adjourned meeting to be convened immediately after the originally-called AGM failed to achieve the required quorum.

Such an interpretation would have rendered the quorum requirement in Section 64(4) otiose. Why would Parliament insist on a quorum if it could so easily be circumvented?

Lawyers will know that an interpretation that makes any part of a statutory provision redundant or otiose may not hold up in court. Is that the case here?

In any case, what real value can there be in a resolution passed at a meeting that failed to draw even the statutory minimum of 500 members – especially in a 22,000-strong Bar?

Even more concerning is the fact that a meeting boasting so many bright legal minds would vote to bring a court action of this nature.

In a media statement dated Feb 6, then Bar president Karen Cheah said: “Article 42(1) of the Federal Constitution empowers the Yang di-Pertuan Agong (YDPA) to grant pardons, reprieves, and respites in respect of … all offences committed in the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya.

“Indeed, in the case of Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986] 1 MLJ 494, the Supreme Court ruled that the YDPA’s power to pardon under the Federal Constitution cannot be justiciably reviewed. The case of Juraimi bin Husin v Board of Pardons, State of Pahang & Ors [2002] 4 MLJ 529 further affirmed that the YDPA’s decision to pardon or otherwise is not subject to judicial review. Whether the apex court will change its stance remains to be tested.”

The Bar knows that the law on the point has already been stated twice with certainty by the apex court. It simply wants to test its own arguments in the current suit.

But to do so, it will have to run through the upper levels of the country’s judicial system and utilise much judicial time in the process. The Federal Court and even the Court of Appeal may be forced to empanel full benches to consider the matter, given that the case touches on the powers of the king himself.

Are the Bar’s arguments of such great merit as to justify the usage of so much judicial time? Is this a “sure win” case, or one of “hit-and-hope”? Or is it just pure theatre?

Finally, does the real remedy not lie in an amendment to the Federal Constitution? Why not push for that instead?

The Bar is risking its credibility by pursuing what may well be an exercise in futility. It should think again, and rationally. - FMT

Ibrahim M Ahmad is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.