Najib’s pardon ruling reaffirms ‘constitutional monarchy’ concept, says lawyer

However, another lawyer says the High Court’s curtailment of the king’s prerogative power to grant pardons may be grounds for an appeal.

On Monday, the High Court denied Najib Razak’s bid to be placed under house arrest, ruling that the king must exercise his powers and functions within the confines of the Federal Constitution.

PETALING JAYA:

 The High Court’s rejection of Najib Razak’s bid to be placed under house arrest affirms that the Federal Constitution operates on the principles of a constitutional monarchy, a lawyer said.

Bastian Pius Vendargon said the foundational 1957 document defines the king’s role as Malaysia’s head of state.

“The monarch’s rights, privileges, powers and duties are stipulated in the constitution, and the prerogative power of pardon is set out under Article 42,” he told FMT.

Vendargon said the court, in its decision, had declared the former king’s addendum order invalid as it had not been deliberated at the Jan 29 Federal Territories Pardons Board (FTPB) meeting.

“Even if the addendum is valid, it cannot be enforced as there is no provision under the law for house arrest,” he added.

In dismissing Najib’s bid to serve his reduced six-year jail term under house arrest, Justice Alice Loke had said that the king was a constitutional monarch, and that his powers and functions must be exercised in accordance with the constitution’s provisions.

The judge held the addendum order was not deliberated or decided at the 61st FTPB meeting, which meant non-compliance with Article 42 of the constitution, rendering the order contained in the document invalid.

The government had produced the minutes of the Jan 29, 2024 meeting, showing that the board only recommended halving Najib’s 12-year jail term and reducing his fine from RM210 million to RM50 million following the former prime minister’s conviction in the SRC International case.

Najib’s legal team, on the other hand, argued that the government was obliged to execute the then king’s order even if it had been made unilaterally.

Najib can still apply to prison authorities

Former Bar president Salim Bashir said Loke had, in her decision, acknowledged that Najib could apply to the prison authorities to be released on licence, as provided under Section 43 of the Prison Act 1995 and Rule 111 of Prison Regulations 2000.

“The commissioner-general of prisons is bestowed with the discretion to release a prisoner based on good behaviour and terms set out by the home minister,” he said.

Salim said the prisoner would be required to observe various restrictive conditions, with failure to comply potentially resulting in a return to jail.

Lawyer Haniff Khatri Abdulla, however, said the judgment had set a precedent that curtails the king’s prerogative powers, particularly in granting pardons.

“This could be a strong ground for appeal. My reading is that the judge has usurped the power of Parliament to amend the constitution,” he said.

The lawyer held that the king’s power to grant pardons, reprieves and respites under Article 42(1) was not subject to any federal law.

Haniff added that case laws from the apex court had stated that prisoners could not look into the workings of the pardons board.

“However, in this case, the government, through the Attorney-General’s Chambers, was allowed to tender declassified documents, which went against established principles,” he said. - FMT