Expert says Najib house arrest ruling is constitutional

 

KUALA LUMPUR: A constitutional expert says that the Kuala Lumpur High Court acted in line with the Federal Constitution by dismissing Datuk Seri Najib Razak's judicial review bid over a royal addendum for house arrest.

Assoc Prof Dr Khairil Azmin Mokhtar, a law lecturer at Universiti Islam Antarabangsa Malaysia (UIAM), said the ruling should also not be interpreted as a rejection or repudiation of the Yang di-Pertuan Agong's decree.

He clarified that the court's decision upholds the principle that the power of pardon must be exercised with the consideration and advice of the Pardons Board, as stipulated under Article 42 of the Federal Constitution.

"However, this court decision does not negate the power or discretion of the Yang di-Pertuan Agong or the Sultan.

"What it affirms is that the power of pardon is exercised through the Pardons Board and must follow the procedure provided for in the Constitution," he told Bernama.

Khairil Azmin explained that Article 42(4)(b), read together with Article 42(11), stipulates that this power is exercised by the Yang di-Pertuan Agong upon the advice of the Pardons Board.

"Article 42(8), read together with Article 42(11), states that the Pardons Board shall meet in the presence of the Yang di-Pertuan Agong, or that the Yang di-Pertuan Agong shall chair the meeting," he added.

The Kuala Lumpur High Court on Monday (Dec 22) dismissed Najib's application for a mandamus order to verify and enforce an addendum decree allowing him to serve the remainder of his prison sentence under house arrest.

In her judgment, Judge Alice Loke Yee Ching found that the decree in question was neither discussed nor decided upon at the 61st Meeting of the Pardons Board on Jan 29, 2024.

She further stated that the addendum did not comply with Article 42 of the Federal Constitution and was therefore invalid.

In the ruling, Judge Loke also affirmed that a house arrest order could not be enforced under Malaysian law, as the legislation governing parole grants full discretionary power to the Commissioner General of Prisons.

Commenting on the matter, Khairil Azmin said this clearly demonstrates that the High Court also examined the legal feasibility of enforcing such a sentence.

He emphasised that Malaysia's existing legal framework does not recognise house arrest as a form of custodial sentence.

He said this finding also reinforces the view that the house arrest sentence was not formally deliberated by the Pardons Board.

"Had the matter been discussed and recommended by the Pardons Board, it would certainly have been supported by a clear legal basis," he said. – Bernama