KUALA LUMPUR – Former Court of Appeal judge Datuk Hamid Sultan Abu Backer said that the Bar Council’s application to challenge the Federal Territories Pardons Board, which halved Datuk Seri Najib Razak’s conviction sentence in the SRC International Sdn Bhd case, is unprecedented.
He went on to say that he had never encountered such “prayers” (requests) to the court aiming to impair an accused or prisoner’s constitutional rights, nor any court decision granting an injunction to restrict someone from exercising their constitutional rights.
“The constitutional or statutory rights of prisoners must be respected as a fundamental principle of the rule of law.
“The Bar Council may have jurisprudential justification supported by some strong judicial precedents from Malaysia or abroad to pursue this leave application.
“However, the public will only learn the outcome of the application after submissions are heard from all relevant parties and the judge delivers the judgement,” he said.
Yesterday, Scoop reported that the Bar Council filed an application to challenge the board’s decision. They seek the court to declare the former’s collective decision nullified, unconstitutional, and unlawful.
The council is also seeking a permanent injunction to restrain the former prime minister, his servants, agents, or any other parties from submitting any application for pardon, reprieve, or respite to the Board.
Additionally, they are requesting a court order of prohibition against the Pardons Board from accepting, considering, or determining any application by Najib for pardon, reprieve, or respite.
They are seeking the orders until all criminal charges or prosecutions against Najib have been exhausted and he publicly accepts responsibility for the actions for which he is convicted, expressing repentance and remorse for those actions.
Regarding the matters relating to the Board’s decision in the application, Hamid said it is important to note the distinction between Article 40 and Article 42 of the Federal Constitution, highlighting that they do not carry the same meaning under the constitution.
Article 40 specifies the function of the Yang di-Pertuan Agong, while Article 42 specifies’ his power accorded under the constitution.
“I have written many articles to say that Article 42 vests absolute power to the Yang di-Pertuan Agong to grant pardon, which is also consistent with the judgements of courts.
“However, some jurists have argued that Article 40 requires the Yang di-Pertuan Agong to act on the advice of designated persons.
“Thus, power to (grant) pardon will be non-justiciable for the purpose of judicial review, and power to pardon is not unique to Malaysia and many countries (that) that provide similar rights.
“But that does not mean Article 8 of the constitution, which says all persons are equal before the law and entitled to equal protection of the law, will be infringed, as some jurists have argued,” he said.
The constitution cannot be read in isolation to nullify Article 42 (of the constitution), Hamid Sultan added.
He added that the absence of clear judicial precedents raises questions regarding the prudence of questioning the absolute rights of the Yang di-Pertuan Agong, how those rights were used, and if it might break other laws.
These are likely questions that will come up in this case, he said.
Najib has been serving his sentence in Kajang Prison since August 23, 2022, after being convicted of embezzling RM42 million in funds belonging to SRC International.
On September 2, 2022, he filed a petition for a royal pardon.
On February 2, the Pardons Board halved his jail term from 12 years to six and cut the fine from RM210 million to RM50 million. – May 1, 2024