Najib’s reduced jail time: Can Malaysian Bar challenge it? Court to decide Nov 11

KUALA LUMPUR, Sept 18 — The High Court will deliver its decision on November 11 whether the Malaysian Bar can proceed with its legal challenge against the Pardons Board’s decision to reduce former prime minister Datuk Seri Najib Razak’s 12-year jail term and RM210 million fine.

High Court judge Datuk Ahmad Kamal Md Shahid fixed the decision date after hearing arguments this afternoon from lawyers representing the Malaysian Bar, the Attorney General’s Chambers (AGC) and Najib.

Today was the High Court’s hearing of the Malaysian Bar’s application for leave to challenge the Pardons Board’s decision to reduce Najib’s jail term to six years and his fine to RM50 million.

If the High Court decides to grant the Malaysian Bar leave for judicial review, it can continue with its court challenge. If the Malaysian Bar fails to get leave, it cannot proceed to have its lawsuit heard.

In its court challenge filed on April 26, the Malaysian Bar is seeking a court declaration that the Federal Territories Pardons Board’s January 29 decision to reduce Najib’s jail time and fine is unlawful, unconstitutional and void.

The Malaysian Bar — a professional body representing lawyers in Peninsular Malaysia and the Federal Territories — is also seeking a court order to quash the Pardons Board’s decision to reduce Najib’s sentence.

The Malaysian Bar also wants a court order for a permanent injunction to stop Najib from submitting any application for pardon until and unless he has publicly accepted responsibility for his actions for which he has been convicted for, and until and unless he has expressed repentance and remorse for those actions.

The Malaysian Bar also wants a court order to prevent the Pardons Board from accepting or considering or deciding on his pardon applications until and unless the same things take place.

The legal arguments presented by the lawyers in the hearing this afternoon revolved around questions such as whether the Malaysian Bar had the legal standing or locus standi to challenge the decision to reduce Najib’s jail time; and whether the decision to reduce Najib’s jail term was a decision by the Yang di-Pertuan Agong or by the Pardons Board; and whether the court could decide on the reduction decision.

The AGC’s senior federal counsel Ahmad Hanir Hambaly @ Arwi argued that the Federal Constitution’s Article 42 gave the Yang di-Pertuan Agong to decide on granting pardon and that this was not a novel issue or new issue that needs a decision from the court. The AGC’s argument is that the King’s power to grant pardons is a non-justiciable matter or something that the courts cannot review or decide on.

While noting the Malaysian Bar’s assertion that they are not challenging the King’s decision but the Pardons Board’s decision in Najib’s case, the AGC argued that the process — which involves the Pardons Board’s advice to the King — leading to the King’s decision to grant pardon should also be non-justiciable or something that the courts cannot decide on.

Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah argued that the Pardons Board has no power to make decisions on pardon applications and can give advice to the Yang di-Pertuan Agong, also arguing that the Yang di-Pertuan Agong can listen to such advice but is not necessarily bound by such advice when deciding whether to grant pardon.

Shafee also argued that the Bar Council lacks legal standing to bring this court challenge, claiming that the Malaysian Bar’s annual general meeting this year did not fulfill certain legal requirements after failing to reach the quorum of 500 members.

The Malaysian Bar today stressed that it is challenging the Pardons Board’s decision in Najib’s case, and not the Agong’s decision.

Former Malaysian Bar president Zainur Zakaria — who is representing the Malaysian Bar — however argued that the Yang di-Pertuan Agong in the past had the discretion to accept or reject advice from the Pardons Board, but that the new legal position after 1994 following the introduction of Article 40(1A) in the Federal Constitution is that the Yang di-Pertuan Agong has to accept the Pardons Board’s advice but still has the power to grant pardon.

“When it comes to exercising the power to grant pardon, His Majesty the King acting upon advice of the Pardons Board and is bound to act on the advice of the Pardons Board. Which means in advising the King, it is the Pardons Board that makes the decision, and the King is bound to execute that decision, he no longer has the discretion to refuse,” he said.

Former Malaysian Bar president Datuk Yeo Yang Poh, who also represented the Malaysian Bar, also argued that there was no logic in the AGC’s and Najib’s arguments that the Pardons Board had not made a decision in Najib’s case.

Yeo said the Pardons Board would have had to make a decision on what to advise before giving the advice to the King on pardons applications, and argued that the Pardons Board’s decision regarding Najib’s pardon bid can be decided by the courts.

Yeo also argued that the Malaysian Bar’s legal standing to file this court challenge is not based on any annual general meeting or motions or resolutions, saying that its locus standi is instead based on its statutory function under the Legal Profession Act’s Section 42. Among other things, Section 42 states the Malaysian Bar’s purpose as including the upholding of the cause of justice without fear or favour.