Jan 5 fixed for Najib's house arrest bid verdict

The Kuala Lumpur High Court will decide on former prime minister Najib Abdul Razak’s judicial review application involving his house arrest bid on Jan 5 next year.

Judge Alice Loke Yee Ching fixed the date at the end of today’s proceeding, after hearing submissions from Najib’s counsel Shafee Abdullah and senior federal counsel Shamsul Bolhassan, who appeared for the respondents - the government and the attorney-general.

Najib filed the judicial review on April 3 last year, where he claimed that the 16th Yang di-Pertuan Agong had issued a royal addendum on Jan 29 the same year, which allows him to serve the remaining of his jail term at home.

The former Pekan MP, through the judicial review, is seeking a mandamus order to compel the respondents to provide the original version of the royal addendum, costs and any other relief deemed fit by the court.

He is also seeking a court order to compel the respondents to not only confirm the alleged royal addendum but also to “forthwith remove the applicant from Kajang prison facility to his known residence(s) in Kuala Lumpur, where the applicant would continue to serve his imprisonment sentence under house arrest”.

Other respondents are the home minister, Prison Department commissioner-general, Federal Territories Pardons Board, minister in the Prime Minister’s Department (Law and Institutional Reform) and the Prime Minister’s Department’s Legal Affairs Division director-general.

‘Agong wanted to give full pardon’

Shafee submitted to the court earlier that the 16th Yang di-Pertuan Agong is not bound by the Pardons Board’s advice as the king is not part of the board as a chairperson but was only presiding over the board’s meeting as per Article 42(8) of the Federal Constitution.

He further submitted that initially, the king had wanted to grant Najib a full pardon, despite considering advice from the board’s committee.

Shafee was referring to the Pardons Board’s meeting minutes, which were tendered as affidavits by the respondents, which he had objected to at the start of the proceeding on account that they are non-justiciable.

However, Shafee added that the king did not get a majority vote from the Pardons Board during the meeting, which saw Najib’s sentence related to the SRC International Sdn Bhd halved, from 12 years jail to six and from RM120 million to RM50 million fine.

“That house imprisonment is a mere relief, not a pardon. So, once the board has given their advice to the king, he can walk away, and their job is done because he (only) presides over this meeting.

“The king does not have to be tied up and shackled with the proposal of the Pardons Board because to be shackled would mean he is bound by their advice (and) we have about six authorities (tendered in court) that showed he is not bound (by the board’s advice),” said Shafee.

He further emphasised that the house arrest is not a pardon granted to Najib but rather a respite by the king.

“We are also saying that this is not a matter of pardon, because Article 42 of the Constitution said that the king can grant pardon, reprieve and respite (which) is a different phenomena (and) mechanism.

“(And) we say house imprisonment is not a reduction of sentence, is it not a pardon (but) a relief that the Yang di-Pertuan Agong can invoke.”

‘No mention of house arrest in meeting’

Shamsul, in reply, submitted that Article 42(9) provisioned for the Pardons Board to consider a written opinion from the attorney-general before tendering their advice to the king on any matter on pardon application.

“Any matter” in this provision, he said, would include the king's power to grant reprieve and respite, therefore, which ought to be discussed in the board's meeting, and the issue of house arrest was never raised during the meeting.

“Everything was discussed (and) deliberated during the meeting, including suggestions to give a 100 percent full pardon and the option of 50 percent (jail term).

“So after deliberating and taking into consideration (of) the (board’s) advice, it was decided that 50 percent was granted with regards to the (jail) sentence as well as (reduction of) the fines.

“(There was) nothing, as mentioned, about house arrest, and we submit here that it does fulfil the requirement under Article 42(8) and (9),” argued Shamsul.

However, Shafee rebutted, saying that any board meetings are only in regard to pardon applications and not reprieve or respite, as the two fall under the king’s sole prerogative power.

He further submitted to the court of the king’s immunity power provided under Article 32 vis-à-vis Article 42.

Article 32 of the Constitution, specifically 32(1), stated that there shall be a supreme head of the federation, to be called the Yang di-Pertuan Agong, who shall take precedence over all persons in the federation and shall not be liable to any proceedings whatsoever in any court except in the special court established under Part XV of the Constitution.

“This will support my argument that you cannot dispute the Yang di-Pertuan Agong’s order because you cannot make him a party to a proceeding to begin with.

“Let’s not mince words. They (the respondents) say the Yang di-Pertuan Agong’s order is illegal. That means he acted against the statute. Now, if you’re challenging him, surely you must bring him to court as a party.

“(But) Article 32 says you cannot even do that, because he’s not liable to be cited in court. That’s how powerful it is, the immunity of the Yang di-Pertuan Agong vis-a-vis Article 42,” said Shafee.

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