From left: Datuk Yeo Yang Poh, Zainur Zakaria and Rajpal Singh Ghai appeared for the Malaysian Bar

KUALA LUMPUR (July 2): The Malaysian Bar, which is challenging former prime minister Datuk Seri Najib Razak’s pardon, which saw his jail sentence halved and his fine quartered, told the High Court on Tuesday that it is not challenging the Agong's power in the issue but the Pardons Board's decision.

Co-counsel Zainur Zakaria, who initiated the challenge by tabling the motion at the Malaysian Bar’s annual general meeting (AGM) earlier this year, told High Court judge Datuk Ahmad Kamal Md Shahid that the decision by the board is justiciable and can be challenged.

“The Bar is saying that the Agong acts on the advice of the Pardons Board. The Agong must act in accordance with the advice given by the board. The Agong is bound to accept the advice of the board.

“Hence, the decision by the board in giving advice to the Agong is justiciable by the court,” Zainur said in reference to Article 40(1A) of the Federal Constitution (FC).

Article 40(1A) stipulates that: “In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.”

Zainur's co-counsel Datuk Yeo Yang Poh, a former Bar Council president, also pointed out that there has been no challenge on the interpretation of Article 40(1A) of the FC as previous challenges were mainly on Article 42.

Yeo said noted that Article 40(1A) was inserted in June 1994 following an amendment to the FC.

“Prior to this, the Agong has the discretion to grant pardons, but since Article 40(1A) was inserted in 1994, it makes the Agong bound to act on the advice of the Pardons Board,” Yeo said.

Yeo said that since this was a novel issue, the Bar’s challenge should not be considered frivolous, and thus, leave (permission) should be granted to hear on the substantive stage (or for the full merits be heard).

In judicial review proceedings, leave has to be gained first before the merits of the challenge are heard.

Najib was found guilty in relation to seven charges, including abuse of power, criminal breach of trust, and money laundering, with regards to SRC International Sdn Bhd funds, that saw him being sentenced by the High Court to 12 years’ jail and a RM210 million fine.

This sentence, which was upheld by the Court of Appeal and the Federal Court, was halved by the board as announced on Feb 2 this year to six years’ jail and a RM50 million fine.

Zainur said the fact as to how the Pardons Board could, with such ease and haste, advise the Agong to grant the pardon on such terms displays the lack of respect and appreciation by the board as to the gravity of the offences committed by the former PM.

“It calls into question the legality and reasonableness of the exercise by the Pardons Board of its power. Hence, it is justiciable,” he said.

Yeo pointed to the Pardons Board’s announcement made in the media, where it used the word the board memutuskan (decided) and that this showed that there was a higher official in play and the decision was not done by the Agong.

“The decision was not made by His Majesty [like] we see in the appointment of judges, where the Agong acts on the advice of the prime minister. This (the Pardons Boards pronouncement) shows that the decision was not made by His Majesty,” Yeo said, again referring to Article 40(1A).

Public interest matter not best left to rakyat’s imagination

Yeo added that the court would not be bound by the principle of stare decisis (to stand by things decided), as this matter concerned the Bar’s question on Article 40(1A), and not Article 42 which had already been decided.

He said leave should be granted as this is a public interest matter which is not best left to the rakyat’s imagination and speculation.

“It is not just that the Bar (which wanted to have things clarified) in exercising its statutory function to go deeper into this subject matter but for others as well,” Yeo added.

The Bar filed the challenge or leave application at the High Court on April 26, through Messrs Amir and Rajpal Ghai, where it named the board and Najib as respondents.

It is also seeking an injunction to restrain the former prime minister from submitting any effort to obtain a pardon until the conclusion of all cases against him, and until Najib publicly accepts responsibility for his actions and conviction, and until he expresses repentance and remorse for his actions.

The Bar’s secretary Murshidah Mustafa, in objecting to the pardon, noted that Najib still had three ongoing cases besides the concluded SRC International Sdn Bhd case, namely 25 charges in relation to the 1Malaysia Development Bhd-Tanore (1MDB-Tanore) trial, six counts of criminal breach of trust in the International Petroleum Investment Co (IPIC) trial, and the second SRC money laundering case involving RM27 million.

She argued that the decision by the board is irrational and mocks both the concluded and ongoing prosecutions of Najib and Malaysians’ legitimate expectations of transparency, accountability, and justice.

The Attorney General’s Chambers, represented by senior federal counsel Ahmad Hanir Hambaly @ Arwi, appeared for the Pardons Board, while Tan Sri Muhammad Shafee Abdullah appeared for Najib.

The AG’s Chambers is objecting to the leave sought by the Bar saying the matter is not justiciable.