High Court decision on addendum order is sufficiently supported by authorities but nonetheless stands corrected on appeal — Hafiz hassan

 

DECEMBER 26 — The High Court on Monday (December 22) said no to former prime minister Datuk Seri Najib Razak’s attempt to serve the rest of his six-year jail term at home.

The Malay Mail’s simplified version of High Court judge Alice Loke Yee Ching’s 41-page written judgment, which explains why Najib failed his court bid for house arrest, is very commendable.

But let’s not lose sight that the matter had come before Justice Alice Loke after the Federal Court had unanimously dismissed the Attorney General (AG)’s appeal against the majority decision of the Court of Appeal which granted Najib leave to file his judicial review application and allowed the addendum order to be admitted into evidence.

The Federal Court also ordered that Najib’s application for judicial review be heard before a new High Court judge. Hence the matter before Justice Alice Loke.

Now, it was at the hearing of the appeals before the Federal Court that the AG admitted that the addendum order did exist.

In its findings though, the apex court, through Federal Court Judge Zabariah Yusof, said as follows:

“[A]lthough there was a concession with regards to the existence of the purported addendum order, we need to emphasise that:

“Firstly, it is not our judgment herein that the addendum order is part of the pardons order and neither are we saying that it is not. It is premature at this stage for this court to make such a determination.

“Secondly, despite the existence of the addendum order, that by itself, does not translate into automatic admissibility of the same. The respondent (Najib) still has to satisfy the rule and criteria as to the admission of the addendum order as new evidence, which we will address accordingly in our judgment.

“Thirdly, the existence of the addendum order does not automatically render the addendum order as valid. This issue would have to be determined at the substantive hearing in the judicial review proceedings, if leave is granted.

The Federal Court also ordered that Najib’s application for judicial review be heard before a new High Court judge. Hence the matter before Justice Alice Loke.

In this context, Art 42 of the Federal Constitution takes centre stage, namely:

(i)    Art 42 of the Federal Constitution governs the royal prerogative of mercy, whereby the Yang di-Pertuan Agong (YDPA) is empowered to grant pardons, reprieves, and respites in respect of all offences committed in the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya;

(ii)    the exercise of such clemency by the YDPA is not absolute. It is to be carried out in accordance with the constitutional limits prescribed by Art 42, particularly through the framework of advice and procedure embedded therein; (emphasis added)

(iii)    pursuant to Art 42(4)(b), the YDPA is required to act on the considered advice of the Pardons Board for the Federal Territories. His function in the clemency process is therefore inextricably tied to the deliberations and recommendations made by the Board established for that purpose.

(iv)    the Pardons Board for the Federal Territory of Kuala Lumpur is constituted under Art 42(5) of the Federal Constitution, and comprises the learned AG, the Prime Minister, and three other members appointed by the YDPA;

(v)    Art 42(8) further mandates that any meeting of the Pardons Board must be held in the presence of the YDPA, who shall preside over its proceedings. This requirement is both procedural and constitutional in nature; and

(vi)    any failure to adhere strictly to the procedural safeguards and substantive requirements under Art 42 will render the entire clemency process susceptible to constitutional challenge and judicial review.

“Fourthly, on the issue of justiciability, that is also to be addressed and determined at the substantive hearing, if leave is granted.”

The apex court’s judgment can be read here.

Justice Alice Loke duly considered the above in her written judgement to buttress her own view which was expressed as follows:

“In my view, the exercise of the prerogative of mercy, which is what Art 42 is about, must be made by adhering to the procedure stipulated in Art 42. Art 42 has prescribed the decision-making process by which the powers of pardon are to be exercised. At the risk of repetition, there must be a meeting of the Pardons Board presided by the YDPA.

“The Pardons Board considers the written opinion of the Attorney General before tendering its advice to the YDPA. Then and only then can the YDPA make a decision. It is upon due observance of the constitutional requirements, that any order issued can be said to be valid.

“Whilst the power of clemency is a royal prerogative, the Federal Constitution has provided for it to be exercised within the framework of the Constitution. The Pardons Board as a constitutional body, has an important function of advising the YDPA before a decision is made.

“The Attorney General, who is the principal legal adviser to the Government, is a member of the Pardons Board. It is mandatory for the Pardons Board to consider his views. All these requirements taken cumulatively, does [sic] not envisage a decision of the YDPA outside the Pardons Board Meeting. In other words, the YDPA cannot decide independently of the Pardons Board.

“Undeniably, the house arrest order made in exercise of the powers of clemency is without precedent. Art 42 stipulates various orders that can be made namely, pardons, reprieves, respite, remission, suspension and commutation. The Applicant (Najib) received a reduction in his imprisonment term and fine. The house arrest order purports to allow him to be confined to the house instead of prison.

“To my mind, this fundamentally alters the nature of the imprisonment term. It is therefore all the more imperative that a proposed house arrest order be deliberated at the Pardons Board Meeting, consonant with Art 42.”  (See Dato’ Sri Mohd Najib Tun Hj Abd Razak v. Menteri Dalam Negeri & Ors [2025] CLJU 3438. The judgment can otherwise be read here.

To my own mind, Justice Alice Loke’s view and decision are well-articulated, well-reasoned and sufficiently supported by authorities. The other authority that she referred to at length was the judgment of Judge of Court of Appeal Zainun Ali (as she then was) in the case of Dato’ Dr Zambry bin Abd Kadir v. Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener) [2009] 5 CLJ 265.

It is opportune to recall what Al-Marhum Sultan Azlan Shah said on judges and their decisions:

“Judges play an important role in the development of the law in a country. It is their decisions that become precedents in subsequent cases, and it is their decisions that reflect the current state of the law. For this reason, their decisions must be based on the law, with sufficient authorities and reasoning.” (See “The Judiciary: The Role of Judges” in Constitutional Monarchy, Rule of Law and Good Governance, 2004)  

I would agree with the Attorney General’s Chambers (AGC)’s statement on Wednesday (December 23) dismissing as “untrue” claims that the High Court decision had diluted the powers of the YDPA.

“This court’s decision did not reduce the powers of the YDPA, Malay rulers or governors in granting pardons to an offender,” the AGC said, noting that the learned High Court judge had actually recognised the rulers and governors’ powers for pardon. 

I would also agree that Justice Alice Loke’s decision has in fact strengthened the rule of law in a constitutional monarchy where the Constitution is supreme.

I stand corrected. So too the decision, on appeal. - malaymail

* This is the personal opinion of the writer, Hafiz Hassan or publication and does not necessarily represent the views of MMKtT.