KUALA LUMPUR – Any royal addendum order as claimed by Datuk Seri Najib Razak for his house arrest is constitutionally valid and should not have been swept under the rug, lawyer Haniff Khatri Abdulla said.
If such an order does exist, as Najib is trying to prove, the government should have taken other actions if it did not want to implement it, he told Scoop.
“They should have gone to see the King and explained why (a house arrest) cannot be done. There must be official cancellation by the King, not by them hiding it,” he said.
Haniff Khatri was asked to comment on an affidavit by Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi to support Najib’s bid for a judicial review to have the government prove the addendum order on his house arrest and to execute it.
In his affidavit, Zahid affirmed the existence of the addendum order, which he said was shown to him by fellow cabinet member Datuk Seri Tengku Zafrul Tengku Abdul Aziz.
He also said he believed Najib’s application was being filed because the government had refused to answer or to confirm the order’s existence, had also refused to execute or enforce it, and refused to provide the original version or a copy of the house arrest order to Najib’s lawyers when requested.
“(If the Agong did issue an addendum order), to me, that’s constitutionally valid,” Haniff Khatri said.
“The Federal Constitution’s provision of the powers of pardon under Article 42 includes pardons, reprieves and respites.
“A sentence reduction does not supersede the King’s pardoning power… a house arrest (would be) under the Prison Act, not the constitution. No legal provision can overrule or supersede the King’s absolute power,” the lawyer added.
Meanwhile, Datuk Seri Rajan Navaratnam echoed Haniff Khatri that the Agong’s power to grant pardons, reprieves and respites was enshrined in the Federal Constitution.
However, on house arrest, Rajan noted that the current Prison Act did not have such provisions, unlike in Singapore, where its laws provided such rules subject to certain conditions.
“In Malaysia, the government had recently announced the Licensed Release of Prisoners, which allows prisoners to serve their sentence by way of home detention, but only if they had been serving jail sentences of four years or less.
“However, it is uncertain at this stage whether it can be immediately implemented based on existing laws or whether there must be first amendments made to existing laws to put this into effect,” Rajan said.
Bigger problems for the government?
In a live stream on YouTube last night, Haniff Khatri reiterated his views on the constitutionality of the addendum order for Najib’s house arrest, but also suggested that Zahid’s affidavit could trigger the government’s “downfall”.
“If (Zahid) said he saw the addendum, he is indirectly accusing other (government) colleagues of doing something wrong administrative- and constitution-wise, as well as (going) against the King,” he said, in reference to other respondents named in Najib’s judicial review.
“No political statement can correct this,” Haniff Khatri said, adding that the issue of the government allegedly knowing about the addendum order but hiding it was not a mere matter of political differences, such as those certain Umno figures had with DAP over recent boycotts.
“But, when there is an accusation within the cabinet that some of the ministers have done what is constitutionally wrong and abhorrent to what the king’s wishes are, that cannot be politically repaired.”
If the government had not wanted to implement the house arrest order, it had other alternatives instead of keeping the 16th Yang di-Pertuan Agong’s orders hushed up, Haniff Khatri added.
“If you (the government) are not happy with it, then the way to solve (the issue) is not to hide the addendum but carry out constitutional amendments to regularise the (Agong’s) power of pardon – like what was done in 1993 when the King’s immunity was removed, that was done through a constitutional amendment.
“We cannot complain but do not take action. If it (the addendum) did exist, we cannot hide or erase it,” he said.
Zahid’s affidavit was filed at the high court on April 9, to affirm the existence of the addendum order, which was dated February 29 – the same date the Federal Territories Pardons Board met and decided to halve Najib’s prison sentence from 12 to six years, and reduce his RM210-million fine to RM50 million.
Najib is seeking to have the government and six other respondents confirm the addendum order exists – and if so, to execute the order, provide original copies of it and discuss any necessary reliefs the court deems fit.
Tengku Zafrul, however, has said he would be filing his own affidavit in response to Zahid’s to correct “factual errors”. The Attorney-General’s Chambers has also said it will raise the matter in court. – April 18, 2024