KUALA LUMPUR, July 2 — The High Court today allowed Datuk Seri Najib Razak to give views via his lawyers to object to the Malaysian Bar’s bid in a lawsuit to have his partial pardon declared unlawful, due to public interest.
Today was the High Court’s hearing of the Malaysian Bar’s application for leave or for the court’s nod to proceed with its lawsuit to challenge the Federal Territories Pardons Board’s decision to reduce Najib’s 12-year jail term and his RM210 million fine.
But after lawyers for the Malaysian Bar presented their arguments at the High Court, Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah — who entered the courtroom halfway through the hearing — applied to the court to present his client’s views on the court case.
After hearing from all parties including the Malaysian Bar and the Attorney General’s Chambers, High Court judge Datuk Ahmad Kamal Md Shahid noted that the court case is currently at the leave stage for judicial review, and that usually this stage would only involve the applicant (the Malaysian Bar) and the attorney general.
He said the two respondents named by the Malaysian Bar in its court case — the Federal Territories Pardons Board and Najib — would usually only be involved if the court has given leave for the judicial review to be heard at the substantive stage.
“But in this case, the second respondent (Najib) has been present and applied to be heard at this stage as the putative respondent,” he said, adding however that he finds that this case involves “public interest” and that Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi was previously also allowed to present his views or intervene in court proceedings that were at the leave stage.
“So, for today, since there is an application from the second respondent to enter as putative respondent and allowed to present submissions, I exercise my discretion, in view of the public interest in this case and the respondent is an interested party in this case although for leave, I allow the second respondent (Najib) to be present in this proceeding as the putative second respondent,” the judge said.
In other words, Shafee will be allowed to present views for his client Najib at the leave stage in this case, including to object to the Malaysian Bar’s bid for leave to continue with its challenge on the partial pardon.
Shafee claimed to have only heard of this court proceeding this morning and said Najib should be allowed to appear at this stage as the lawsuit directly affects his client.
He also said his client wants to argue that the Malaysian Bar’s lawsuit is without sanction.
Shafee later cited Zahid’s case where he was allowed to be present at the leave stage of a case, after Zahid’s lawyer raised arguments that he would be directly affected by any court decision including on decision whether to grant leave.
The Malaysian Bar will need to get leave from the court to continue with its challenge of the Pardons Board’s partial pardon on Najib. If the Malaysian Bar fails to get leave, it cannot proceed to have its lawsuit heard.
Earlier, former Malaysian Bar president Zainur Zakaria — who is representing the Malaysian Bar — pointed out that the Malaysian Bar is not obliged to inform Najib of the lawsuit as they have “no right to be present” at the leave stage, and that the courts’ rules are clear that Najib can only come in as a party to the lawsuit if leave is granted.
“So, with all due respect, the request to intervene to present their view should be rejected,” he told the court, having said that the rules of the court are clear and that it would be “just out of the question” for Najib to argue or present views now.
Senior federal counsel Ahmad Hanir Hambaly @ Arwi left it to the High Court’s discretion to decide on whether Najib can attend the leave stage of the court proceedings as a putative respondent.
After having decided that Najib can present his views at the leave stage, the judge then gave all parties involved — the Malaysian Bar, the Attorney General’s Chambers and Najib — more time to file in court papers on their arguments before hearing continues.
The High Court then scheduled September 18 for continued hearing of the Malaysian Bar’s application for leave for its court challenge, and tentatively also fixed September 23 as additional hearing date if hearing is not completed on September 18.
Earlier, Zainur argued that the Malaysian Bar should be allowed to proceed with its lawsuit, as the court challenge is not challenging the Yang di-Pertuan Agong’s powers to grant pardon.
“We are not seeking to challenge the power of the Yang di-Pertuan Agong under Article 42 because the power to grant pardon rests solely with His Majesty the King,” he said, referring to the Federal Constitution’s Article 42, which covers the YDPA’s powers to grant pardon for offences committed in the federal territories.
Instead, Zainur said the Malaysian Bar was challenging the Pardons Board’s decision to give the advice to the Yang di-Pertuan Agong for a pardon on Najib by reducing his jail term and fine in the SRC International Sdn Bhd case, and said the Pardons Board’s decision can be challenged in court.
“So then the challenge as I said from the outset is on the decision made by the Pardons Board to advise the King grant the pardon to Datuk Seri Najib on those terms, Yang Arif,” he said.
Among other things, Zainur said that the previous position in the law was that the Pardons Board’s advice to the Yang di-Pertuan Agong was non-binding, which meant that the ruler still had the power to accept or refuse the advice and decide whether to grant or refuse pardon.
But Zainur said the law has now changed, after an amendment to the Federal Constitution with the introduction of Article 40(1A) in 1994.
Article 40(1A) provides that when the Yang di-Pertuan Agong exercises his functions under the Federal Constitution or under federal law — and when he is to act “in accordance with advice, on advice, or after considering advice” — the Yang di-Pertuan Agong “shall accept and act in accordance with such advice”.
Zainur argued that Article 40(1A) means the Yang di-Pertuan Agong is bound to accept the Pardons Board’s advice and act according to the advice given, which means his discretion to decide whether to grant a pardon has been taken away after 1994.
“The power to grant still rests with the King as Pardons Board cannot grant pardon, they can only give advice. But in tendering advice, the advice is in fact a decision by the Pardons Board which the King is bound to act in accordance with,” he said.
“So what we are saying is in the case of Datuk Seri Najib, the pardon granted to him was on the advice of the Pardons Board,” he said.
In other words, Zainur was arguing that it is now the Pardons Board which makes the decision whether a pardon should be granted to an accused or not, and that the introduction of Article 40(1A) means that the Yang di-Pertuan Agong no longer holds the powers to decide whether to grant or to refuse or pardon but still holds the power to actually grant pardon.
Former Malaysian Bar president Yeo Yang Poh, who also represented the Malaysian Bar, said the issue raised in this court challenge is novel or new, and said the court should not dismiss this case at the leave stage and should grant the opportunity for it to be heard in full.
Both Zainur and Yeo had highlighted that the Pardons Board’s February 2, 2024 statement regarding the reduction of jail term and fine for Najib showed that the Pardons Board has the power to make a decision on pardon, with Yeo highlighting the Pardons Board’s choice of word of it having “memutuskan” (decide) instead of “syorkan” (recommended) or “nasihatkan” (advised).
Yeo noted that the Pardons Board have not disclosed its grounds for its decision on the reduction of the jail term and fine for Najib.
“It is better for them to convince the courts rather than leave things to the rakyat’s speculation and imagination. The way things are right now, if they manage to convince the court, their credibility will be preserved. So it’s not just that the Bar is exercising its statutory function to go deeper in to this substantive matter, it may be good for the Pardons Board as well,” he said.
Ultimately, both Zainur and Yeo were arguing that the Malaysian Bar’s court challenge can proceed as it involves a justiciable matter or matter that can be decided by the courts.
This is in response to the attorney general’s objection for the court challenge to proceed. The Attorney General’s Chambers is understood to be expected to argue that the Malaysian Bar’s court case is on a non-justiciable matter or a matter which the courts are not capable of deciding on.
The Attorney General’s Chambers has yet to present its arguments in this case.
