King’s absolute discretion to grant pardons removed in 1994, court hears

Lawyer Zainur Zakaria says by virtue of Article 40(1A) of the Federal Constitution, the advice of the Federal Territories Pardons Board now binds the Yang di-Pertuan Agong.

(FMT) – An amendment to the Federal Constitution in 1994 removed the absolute discretion of the Yang di-Pertuan Agong to grant pardons, the High Court heard today.

Lawyer Zainur Zakaria said Article 40(1A) now stipulates that the head of the federation shall accept and act on advice in the exercise of his functions under the constitution.

“Before the amendment, the king had absolute discretion to accept or reject a pardon,” said Zainur, who is appearing for the Malaysian Bar in its application for leave to commence judicial review to challenge the decision of the Federal Territories Pardons Board (FTPB) in Najib Razak’s case.

On Feb 2, the FTPB announced that the former prime minister’s prison sentence following his conviction in the SRC International case had been reduced from 12 years to six, and his fine from RM210 million to RM50 million.

Najib, 70, is currently serving his sentence at Kajang prison and is scheduled to be released on Aug 23, 2028.

In his submissions before Justice Ahmad Kamal Shahid, Zainur also made it clear that the Bar was not challenging the king’s power to grant a pardon but merely the FTPB’s decision-making process.

The former Bar president said the king may only act at his discretion in appointing a prime minister, withholding consent to a request for the dissolution of Parliament and requisitioning a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of the monarchs.

Zainur said that with the coming into effect of Article 40(1A), the personal discretion of the king had been removed and that he was bound by the advice of the FTPB.

Lawyer Yeo Yang Poh, who assisted Zainur, said no court had deliberated the effect of the amendment as present case law on the matter precedes 1994.

“No binding precedent will be offended in interpreting Article 40(1A). This court’s jurisdiction cannot be ousted on grounds of non-justiciability to hear substantive arguments (on the effect of the amendment),” said Yeo, who is also a former Bar president.

He said the king’s role in the pardon process was akin to appointing Cabinet members on the advice of the prime minister.

Yeo also said leave should be granted as the application was not frivolous and met the low threshold set by law.

Meanwhile, Ahmad Kamal allowed Najib’s lawyer Shafee Abdullah to submit in the leave proceedings on grounds that the former prime minister would be directly affected by the outcome of the application and has been named a co-respondent in the action.

Shafee, who entered court in the middle of the proceedings, said his client had not been served with any legal papers to be able to participate in the leave hearing.

Zainur objected to Shafee’s participation, saying the present proceedings were to be heard ex-parte, with only the attorney-general (AG), as guardian of public interest, permitted to participate under the law.

Ahmad Kamal, however, said he was using his discretion to allow Shafee’s application as the case was one of public interest.

The hearing has been adjourned to Sept 18 for Shafee to file written submissions and for the Bar and AG to respond.

Senior federal counsel Ahmad Hanir Hambaly and federal counsel Safiyyah Omar appeared for the AG.

In its application, the Bar, which represents more than 22,000 lawyers practising in Peninsular Malaysia, is seeking a declaration that the FTPB’s collective decision was unlawful, unconstitutional and void.

It is also requesting the High Court to issue an order of certiorari to quash the FTPB’s decision.

The Bar also wants a permanent injunction restraining Najib or his agents from submitting any application for pardon, reprieve or respite to the board until all criminal charges against him have been exhausted.

The Bar says the injunction should remain in force until Najib has publicly accepted responsibility and expressed remorse for his actions.

The FTPB is headed by the king and consists of five members: the AG, the federal territories minister and a maximum of three others appointed by the king.

Najib, who has three other ongoing criminal cases, began his initial 12-year prison term on Aug 23, 2022 following the Federal Court’s dismissal of his final appeal.

In early April, he applied to the High Court to compel the government to produce a purported addendum issued by the previous Yang di-Pertuan Agong allowing him to serve his sentence under house arrest.

Justice Amarjeet Singh will deliver his decision tomorrow as to whether Najib will be given leave for the merits of his case to be heard.