KUALA LUMPUR – Lawyers are of the view that challenging the Federal Territories Pardons Board’s decision regarding former prime minister Datuk Seri Najib Razak’s commuted sentences would be an “uphill battle”.
Speaking to Scoop, Datuk Seri Rajan Navaratnam said that the parties who wish to initiate a judicial review against the board must first prove that they have a locus standi (legal standing).
This, he said, is because the law has dictated that only those directly aggrieved by the Board’s decision would have the requisite legal capacity to mount a challenge against their decision.
“The Order 53 rule 2(4) of the Rules of Court 2012 has expressly stated that only a person who is adversely affected by a decision, action, or omission about a decision would be entitled to file a judicial review application.
“However, it could be argued that the Bar acts as a guardian of the law, to uphold the rule of law and defender of public interest.
“It is pertinent to note that last year, the Court of Appeal decided in the case of Prime Minister Datuk Seri Anwar Ibrahim versus Mohd Khairul Azam Abdul Aziz that the process of clemency and subsequent granting of a pardon (to Anwar) did not affect Khairul’s rights or interests.
“Therefore, the court ruled that Mohd Khairul’s application had no locus standi to initiate a judicial review,” he said, referring to the similarities of the Bar’s intention to initiate the legal contest.
He further said that the board is merely an advisory body where it does not make any decisions and merely renders its advice to the Yang di-Pertuan Agong.
“Article 42 of the Federal Constitution states that the power to grant pardons, reprieves, and respites in the Federal Territories shall vest with the Yang di-Pertuan Agong.
“In other words, the final decision lies with the King and not the Pardons Board.”
He added that before the Bar challenges the Pardons Board, they should first ascertain what the exact advice rendered by the board to the Yang di-Pertuan Agong was.
“Without it, the Bar would not be able to ascertain, adduce evidence, argue, and succeed in the intended judicial review application.
“Then there is also the issue of whether the matter is justiciable because the issue of pardons rests with the executive and royal prerogative power, where the doctrine of separation of power is applied,” he said.
He highlighted a similar case in 1986, where the apex court, then, had ruled that they had no jurisdiction to confirm or vary the Yang di-Pertuan Agong’s decision involving commuting, remitting, or granting pardon to individuals.
“However, it must also be noted that in recent times, the courts have reviewed decisions that previously were deemed to be non-justiciable.”
Rajan also added that, in the element of public policy, if the Bar’s application is allowed, it would open a floodgate where any person affected by the board’s decision would resort to courts to review decisions involving pardons.
Meanwhile, lawyer Datuk Malik Imtiaz Sarwar said that the board has a constitutional function that is separated and distinct from the power to pardon or commute sentences, as the power to do so for Federal Territories is vested in the Yang di-Pertuan Agong.
“There are two questions that arise. First, whether the Yang di-Pertuan Agong can decide without regard to the advice of the board.
“Assuming that the king must act on such advice, the second is what if the advice was not lawful.
“This is not to say the intended case is not going to be challenging. There are decisions of the apex court that characterise the power to pardon or commute as a prerogative and therefore not reviewable.
“There is, however, a legal basis to argue that this Bar may not be as absolute as it was once thought to be,” he said.
Subsequently, he added, it will be for the Bar to navigate a course through these decisions and potentially develop this area of law.
On Saturday, newly-elected Bar Council president Muhammad Ezri Abdul Wahab confirmed that the Bar will be filing a judicial review against the board’s decision, which commuted Najib’s jail and fine sentences.
He said that the Bar had come to know that all who had heard the decision made by the board were not happy and that a judicial review would help ascertain what is the right thing that should happen.
Najib, 70, was sentenced in 2020 to 12 years in jail and a RM210 million fine for misappropriating RM42 million of SRC International Sdn Bhd funds.
He began serving his jail sentence in 2022 after the apex court upheld his sentence and conviction.
However, in February, the Pardons Board announced its decision to discount Najib’s jail sentence to six years and reduced his fine to RM50 million. – March 18, 2024