KUALA LUMPUR: Datuk Seri Najib Razak has to complete his prison time at Kajang Prison following the High Court's decision that dismissed his judicial review on his bid to serve his sentence under house arrest.
Justice Alice Loke, in her decision, said while the existence of the addendum order no longer became an issue, the order itself was not deliberated nor decided at the 61st Pardons Board meeting, held on Jan 29, 2024.
This was based on a meeting minute that showed the Pardons Board only tendered its advice on two matters: a proposed full pardon and the reduction of the imprisonment term.
"Crucially, there is no mention whatsoever of house arrest. The addendum order was therefore not made in accordance with the procedure prescribed by Article 42 of the Federal Constitution," she said here on Monday (Dec 22).
Justice Loke said Najib, as the applicant, conceded this but argued that the addendum order need not be deliberated at a Pardons Board meeting.
The judge, however, was of the view that the exercise of the prerogative of mercy by the Yang di-Pertua Agong under Article 42 must strictly adhere to the procedures and constitutionally mandated decision-making process.
"These requirements do not envisage a decision of the YDPA made independently of the Pardons Board. While the power of clemency is a royal prerogative, it must be exercised within the constitutional framework," she added.
Justice Loke further said that the existence of the order alone did not render the order valid as its validity depends on strict compliance with constitutional requirements.
The applicant also contended that the addendum order constituted a "respite" within the meaning of Article 42 and therefore, may be exercised without convening a Pardons Board meeting.
"I am unable to accept this argument. The terms of the addendum order did not suggest urgency of the kind associated with reprieve or respite. Moreover, it was a supplementary order to an Early Release Order, which was deliberated upon by the Pardons Board.
"There was no reason why the house arrest could not have been similarly deliberated," Justice Loke said.
The judge further said that the YDPA, as a constitutional monarch, exercises powers in accordance with the Federal Constitution.
"The prerogative of mercy is no exception. The addendum order was neither deliberated nor decided at the 61st Pardons Board meeting and was made in non-compliance with Article 42. It is therefore invalid.
"The respondents have no duty to enforce it, and conversely, the applicant has no right to the relief of mandamus. The judicial review is therefore dismissed," Justice Loke said.
The court did not make any order as to cost.
Najib's lead counsel Tan Sri Muhammad Shafee Abdullah then stood up to inform the court that they would be appealing the decision.
"We've received instruction from our client to appeal," he said.
Muhammad Shafee also sought for the court to expedite the written judgment for the purpose of appeal. Justice Loke said the court would oblige to the request.
As soon as the court was adjourned, Najib's family and supporters stood up and gathered around him. Muhammad Shafee was seen briefing his client on the outcome of the proceedings before Najib was escorted out of the courtroom by the prison officers.
Najib, who was a former prime minister, is currently serving the sentence imposed by the High Court that found him guilty of abuse of power, criminal breach of trust and money laundering in relation to RM42mil siphoned from SRC International Sdn Bhd, a former 1MDB subsidiary.
In the high-profile SRC case, Najib exhausted his appeals as he failed to overturn his conviction and sentence.
On Feb 2 last year, the Pardons Board announced in a statement that it had reduced Najib's initial 12-year jail sentence and RM210mil fine to six years and a RM50mil fine.
According to the statement, Najib will be released on Aug 23, 2028 and the fine has been reduced to RM50mil from RM210mil.
"However, if the fine is not paid, a year will be added to the jail term, and the release date will then be on Aug 23, 2029," it said.
Two months later, on April 1, 2024, Najib filed an application for leave for judicial review, claiming that there was a royal addendum order that would have allowed him to serve his prison time under house arrest.
He named the Home Minister, the Commissioner General of Prisons, the Attorney General, the Federal Territories Pardons Board, the Minister at the Prime Minister's Department (Law and Institutional Reform), director-general of the legal affairs at the Prime Minister's Department and the government as the first until the seventh respondents respectively.
In the notice of application, Najib sought a mandamus order that all of the respondents or one of them answer and verify the existence of the addendum order dated Jan 29, 2024.
Najib is seeking a mandamus order where, if the addendum order exists, all or one of the respondents must execute the royal order and immediately move him from the Kajang Prison to his residence in Kuala Lumpur, where he would serve his remaining sentence under house arrest.
