KUALA LUMPUR – In a last-minute appearance today, defence lawyer Tan Sri Mohamed Shafee Abdullah has applied to hold a watching brief in the Malaysian Bar’s application to review the decision of the Federal Territories Pardons Board, commuting former prime minister Datuk Seri Najib Razak’s jail sentence and fine.
Shafee said seeing that Najib, who is his client, is named as a respondent, should be able to file submissions on the issues raised in the hearing later.
Shafee also said he learned of today’s hearing this morning, and that he was not served any clause paper regarding the case despite Najib being one of the respondents.
As a result, judge Datuk Ahmad Kamal Md Shahid fixed the new date on September 18 for the hearing that was supposed to start today.
He also ordered the bar and the Attorney-General’s Chamber (AGC), who appeared for the Pardons Board, to give the clause paper and written submissions to Shafee by July 16, and for Shafee to file his written submission by August 8.
The court also fixed September 9 for the AGC and the bar to file their replies before the leave application is heard.
Initially, the court was to hear the bar’s application today, with the Pardons Board as first respondent and Najib as second respondent.
Lawyers representing the bar, Zainor Zakaria and Datuk Yeo Yang Poh, earlier submitted that the judicial review is not to challenge the Yang di-Pertuan Agong’s discretionary powers.
“We wish to emphasise that what we seek to challenge is the decision of the Pardons Board and the impugnable exercise of its decision-making power, when it decided to advise the Yang di-Pertuan Agong.”
They added that the Agong has discretion whether to accept, reject or vary the advice of the Pardons Board, and also the independent power to decide whether a pardon should or should not be granted, before the Federal Constitution amendment in 1994, which sees Article 40(1A) instituted into the constitution.
“Before 1994, the Agong’s power under Article 42 of the Constitution could resemble a prerogative power, though the word ‘prerogative’ was not found in the Article.”
They also said the absolute power was taken away when Article 40(1A) was introduced.
Article 40(1A) says that the Agong, in exercising his functions under this constitution or federal law, is to act in accordance with advice, on advice or after considering advice, the Agong shall accept and act in accordance with such advice.
Appearing alongside Zainor and Yeo for the bar today was Datuk Rajpal Ghai, while senior federal counsel Ahmad Hanir Hambaly and federal counsel Safiyyah Omar appeared for the AGC on behalf of the Pardons Board.
The suit was filed on April 26, where the bar sought the court’s declaration to nullify the Pardons Board’s decision.
It is also seeking permanent injunction, restraining Najib, his servants, agents or otherwise from submitting any application for pardon, reprieve or respite to the first respondent (Pardons Board), as well as court’s order to prohibit the first respondent from accepting, considering or determining any application by Najib for pardon, reprieve or respite.
These orders were sought until and unless all criminal charges or prosecution against Najib have been exhausted and that he has publicly accepted responsibility for his action, for which he is convicted and that if he has expressed repentance and remorse for those actions.
On June 2, Najib’s jail sentence was reduced from 12 years to six years, while his fine was reduced from RM210 million to RM50 million. However, if Najib fails to pay the RM50 million fine, he would have to serve an additional year in prison in default.
Apart from being found guilty for misappropriating SRC International’s funds, Najib is still under trial for another corruption case involving RM2.3 billion of 1Malaysia Development Bhd (1MDB) funds.
He has also sent a representation letter to the AGC, seeking to drop his third criminal charge involving RM27 millions of SRC International’s funds.
The trial for his fourth court case, which involves the criminal breach of trust of RM6.64 billion in government funds, is set to commence in June of this year.
However, Najib has been acquitted in his fifth criminal case involving 1MDB audit-tampering. – July 2, 2024