KUALA LUMPUR: The royal addendum order, which Datuk Seri Najib Razak relied on to seek a house arrest, was invalid as it was issued outside of the constitutional framework, says the High Court.
Releasing her written judgment a day after she dismissed Najib’s application, Justice Alice Loke said the Yang di-Pertuan Agong (YDPA) was a constitutional monarch whose power of clemency is subject to constitutional limits, and must be exercised strictly within the framework of Article 42 of the Federal Constitution.
The 41-page judgment contains the reasons behind the dismissal of the former prime minister’s bid for a judicial review to allow him to serve the remainder of his prison sentence under house arrest.
While the existence of the addendum order was undisputed, the judge made a finding that the addendum order became invalid as it was issued outside of the constitutional framework.
Justice Loke said the Federal Court’s previous decisions had also ruled that the powers of clemency was subject to procedural limits in Article 42 when exercising powers of pardon.
“Pursuant to Article 42(4)(b), the YDPA is required to act on the considered advice of the Pardons Board for the Federal Territories.
“The YDPA’s function in the clemency process is therefore inextricably tied to the deliberations and recommendations made by the Board established for that purpose.
“The Pardons Board for the Federal Territory of Kuala Lumpur is constituted under Article 42(5) of the Federal Constitution, and comprises the learned Attorney General (AG), the Prime Minister and three other members appointed by the YDPA.
“Article 42(8) further mandates that any meeting of the Pardons Board must be held in the presence of the YDPA, who shall preside over its proceedings.
“This requirement is both procedural and constitutional in nature,” Justice Loke said.
Najib 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, a former 1MDB subsidiary.
In the high-profile SRC case, Najib failed to overturn his conviction and sentence after exhausting his appeals.
On Feb 2 last year, the Pardons Board announced that it had reduced Najib’s initial 12-year jail sentence and RM210mil fine to six years and a RM50mil fine.
According to the Board, Najib will be released on Aug 23, 2028.
Two months later, on April 1, 2024, Najib filed an application for leave for judicial review, stating there was a royal addendum order that would allow him to serve his prison time under house arrest.
He named the Home Minister, the Commissioner General of Prisons, the AG, the Federal Territories Pardons Board, the Minister in 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 respondents.
In the application, Najib sought an order to move him from Kajang Prison to his residence in Kuala Lumpur, where he would serve his remaining sentence under house arrest.
Najib will be appealing against Justice Loke’s decision.
