Blocking AG from challenging Najib's order undermines rule of law, say NGOs

Preventing the Attorney-General’s Chambers from challenging ambiguities in the High Court order concerning Najib Abdul Razak’s house arrest could undermine the rule of law and erode public confidence in the country's parliamentary democracy.

In a joint statement last night, a group of NGOs urged all quarters to allow the judiciary to interpret and arbitrate the differing interpretations of the Nov 6 court order.

Their warning comes as Attorney-General Dusuki Mokhtar faced significant backlash from Najib’s supporters, lawyers, and even accusations of “insubordination” from the palace, after he paused the process of releasing the former prime minister into house arrest, pending a resolution of the differing interpretations.

“It is common for different institutions to hold differing interpretations of constitutional and legal provisions; that is precisely why we need the judiciary to interpret and arbitrate,” said the group.

The statement was issued by Project for Stability and Accountability for Malaysia (Projek Sama), the Center to Combat Corruption and Cronyism (C4 Center), and Bersih last night.

The High Court in Kuala Lumpur had issued a discharge order for Najib on Nov 6, after Umno managed to crowdfund RM50 million to settle the fine for the former premier’s SRC International case.

However, the process of releasing him into house arrest, as intended by the conditional pardon, was put on hold after the AGC flagged two different interpretations of the High Court’s order.

According to one interpretation, the payment only settles the fine component of the sentence, while the prison sentence is to run until Aug 23, 2028.

In this scenario, house arrest serves as an alternative method to serve the remainder of the sentence, rather than signifying that the prison sentence has been fully completed.

In the other interpretation, the payment of the fine enables the pardon to take full effect, thereby causing the entire sentence in the SRC International case, including imprisonment, to be deemed completed.

The AGC said this question also affects the enforcement of Najib's 15-year prison sentence in the 1MDB-Tanore case, which will begin immediately after the sentence in the SRC International case ends.

Najib’s lawyers have argued there is no legal basis for Najib to remain in Kajang prison, while Yang di-Pertuan Agong Sultan Ibrahim Sultan Iskandar has decreed that any argument disputing the conditional pardon could be tantamount to defying the king’s order.

Commendable vigilance

According to the NGOs, however, the AGC appears to have flagged a serious ambiguity, if not a serious error, in the High Court’s order that could cause Najib to be discharged from his SRC International prison term instead of merely serving the remainder of the term under house arrest.

“Late as it may be, the AGC’s vigilance in spotting the ‘discharge’ ambiguity or error is commendable. The AGC must not be politically pressured or punished for playing that role,” they said.

They added that if the house arrest is ultimately constitutionally and judicially sound, the brief wait to settle the differing interpretations of the court order would ultimately benefit Najib.

“Having already cost the nation RM2.32 billion across the SRC and 1MDB-Tanore cases, Najib must refrain from rushing this process so as not to further undermine the rule of law and public confidence in parliamentary democracy.

“No political pressure or public campaign should be allowed to rush the implementation of an order whose legal status remains unsettled,” they said.

They also reiterated Projek Sama’s earlier call for more transparency surrounding the conditional pardon for Najib.

This includes releasing the attorney-general’s written opinion regarding Najib’s house arrest application, as well as the federal territories minister’s position, the minutes of the Pardons Board meeting, and any legal and regulatory instruments governing Najib’s home detention.

“As the Malay proverb goes, ‘courage dwells in righteousness, fear dwells in guilt' – those who truly believe in the validity of Najib’s pardon and home detention should support this call,” they said.

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