Malaysia’s former prime minister, Datuk Seri Najib Razak, on Monday, obtained leave from the Court of Appeal to commence judicial review proceedings to compel the government to execute a supplementary royal decree for him to serve the remainder of his jail term under house arrest.
Subsequently, Najib’s lawyer, Tan Sri Shafee Abdullah, informed the media outside the court that his client could be released from prison within a month if the High Court rules in his favour.
This series of events sparked widespread discussion, particularly regarding the effect of the order in the supplementary royal addendum issued by Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, who, while serving as Yang di-Pertuan Agong, decreed that Najib served the remainder of his sentence under house arrest.
This has generated significant interest, considering that a provision for house arrest currently does not exist in Malaysia. For the record, it was only in late October last year that the government announced its plans to table a house arrest bill this year.
Can the Yang di-Pertuan Agong issue an order that is extraneous to existing laws in the country?
Former Malaysian Bar president Salim Bashir Bhaskaran said: “As the interpretation stands, the answer is yes, unless the court decides otherwise.”
“It is the absolute prerogative of the Agong to issue any order (in a pardon) even if the order given is unknown in law,” Salim told Twentytwo13.
The power to grant a royal pardon is stipulated in Article 42(1) of the Federal Constitution, which provides that the Yang di-Pertuan Agong has the power to grant pardons, reprieves, and respites in respect to all offences that have been tried, and all offences committed in the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya. The Ruler or Yang di-Pertua Negeri of a state has the power to grant pardons, reprieves, and respites in respect to all other offences committed in his state.
In the Court of Appeal on Monday, senior federal counsel Shamsul Bolhassan stated that the only decision made at the Federal Territories Pardons Board meeting on Jan 29 last year, chaired by then Yang di-Pertuan Agong Al-Sultan Abdullah, concerned the halving of Najib’s 12-year jail term and a reduction of his fine to RM50 million.
“The addendum was not considered at the board meeting,” Shamsul had said.
However, Salim pointed out that a plethora of past case laws showed that the prerogative of mercy is an absolute power of the Agong’s and state rulers, and the discretion bestowed by the Federal Constitution cannot be questioned and is not reviewable by the courts.
“There are case laws where the Supreme Court has previously decided they have no jurisdiction concerning matters involving state rulers and pardons,” he noted.
He explained that these cases illustrate that any decision made by the Yang di-Pertuan Agong or state rulers in granting pardons is not subject to judicial review and cannot be challenged.
In Sim Kie Chon v Superintendent of Pudu Prison & Ors (1985, 1986), it was stated that the power to grant pardons by the Yang di-Pertuan Agong is an executive act that, by its very nature, is not susceptible to judicial review.
This means that pardons granted by the Yang di-Pertuan Agong, Ruler, or Yang di-Pertua Negeri are not justiciable or capable of being determined by a court of law.
The same position was taken in the cases of Karpal Singh v Sultan of Selangor (1988) and Juraimi bin Husin v Pardons Board, State of Pahang & Ors (2002).
“If there is a challenge, the court must make a judicial pronouncement on the matter. Any challenge must be raised within the framework of the Constitution,” Salim said.
“In Karpal Singh’s case, the court decided that His Majesty is not bound by the view of the Pardon’s Board.”
In essence, the power to grant a pardon is at the absolute discretion of the Agong. This power is so extensive that if the Agong or a state ruler were to declare that a convict was to serve the remaining period of his or her sentence at the palace, it becomes enforceable.
Thus, although most countries in the Commonwealth have provisions for house arrest, and Malaysia is only now planning to introduce an Act of Parliament regarding this matter, it does not prevent the Agong from issuing an order for Najib, Malaysia’s sixth prime minister, to serve his remaining sentence under house arrest.
In 2022, Najib became the first Malaysian prime minister to be convicted and sentenced to jail for abuse of power and corruption. He was sentenced to 12 years in jail for graft and abuse of power for misappropriating RM42 million from SRC International Sdn Bhd. He was also fined RM210 million.
On Feb 2, 2024, the Pardons Board announced that Najib would receive a 50 per cent reduction in his sentence. This means he will be released on Aug 23, 2028, instead of 2034, and will consequently have to pay a fine of RM50 million. Should he fail to pay the fine, an additional year will be added to his jail term, and he would only be released on Aug 23, 2029.
In April 2024, Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi claimed the existence of an addendum order from Al-Sultan Abdullah, allowing Najib to serve the remainder of his prison sentence under house arrest.
Najib subsequently sought to rely on this new evidence to secure leave to commence judicial review proceedings to compel the government to execute the royal decree issued by Al-Sultan Abdullah.
However, the Kuala Lumpur High Court later ruled that Najib had failed to demonstrate that he had an arguable case that warranted a full hearing of his proposed judicial review application.
The High Court stated that the statements contained in the affidavits filed by Najib, Ahmad Zahid, and Umno vice-president, who is also Pahang Menteri Besar, Datuk Seri Wan Rosdy Wan Ismail (regarding the existence of the addendum), were considered hearsay and thus inadmissible as evidence.
