KUALA LUMPUR, Dec 22 — The High Court has dismissed the judicial review application by Datuk Seri Najib Razak over the addendum order allegedly authorising the former prime minister to serve the remainder of his prison sentence under house arrest.
Judge Alice Loke Yee Ching ruled that the alleged addendum order was neither deliberated nor decided upon during the 61st Pardons Board Meeting on January 29, 2024.
Following the decision, he must complete his sentence at Kajang Prison.
She ruled that the alleged addendum order did not comply with Article 42 of the Federal Constitution and was therefore invalid.
“The respondents have no power and have no duty to obey or enforce it. Conversely, the applicant (Najib) has no right to the relief of mandamus. In the circumstances, the judicial review is therefore dismissed. I make no order as to costs," Loke said.
On August 13, the Federal Court remitted the case to the High Court for a hearing on its merits before a new judge, after dismissing the attorney-general’s application for leave to appeal the Court of Appeal’s decision regarding the said addendum.
Najib, 72, is seeking a mandamus order compelling the respondents to confirm and disclose the existence of the purported document dated January 29, 2024.
He named the home minister, the Prisons’ Department commissioner-general, the attorney-general, the Pardons Board for the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya; minister in the Prime Minister’s Department (Law and Institutional Reform), Prime Minister’s Department Legal Affairs Division director-general, and the Malaysian government as respondents.
Loke said the minutes of the meeting confirmed that the only decision made by the 16th King during the meeting was the reduction of Najib’s term of imprisonment and fine.
“There was no mention of house arrest, and no advice was tendered by the Pardons Board on the matter.
‘Therefore, the addendum order was not made in compliance with Article 42 and is not a valid exercise of the prerogative of mercy,” she said, adding that the King cannot decide independently of the Pardons Board.
Loke added the King is a constitutional monarch and exercises powers and functions in accordance with the provisions of the constitution.
"The exercise of the prerogative power of mercy is no exception. It must be exercised within the legal framework providing for safeguards and limits in the constitution,” she said.
She also rejected arguments that the order constituted a form of ‘respite’ that could be issued independently of the board.
Loke said the terms of the order did not indicate urgency and that Article 42 does not exempt any clemency decision from the requirement of deliberation by the Pardons Board.
The judge also said the house arrest order cannot be executed under Malaysian law, as the law providing for release on licence vests discretion solely in the Prisons’ Department commissioner-general.
“Clearly, the house arrest in the addendum order is at variance with the provisions relating to release on licence. In my view, release on licence is a statutory power given to the commissioner-general alone,” Loke said.
Senior Federal Counsel Shamsul Bolhassan, Ahmad Hanir Hambaly@Arwi and Nurhafizza Azizan represented the respondents, while Najib was represented by counsel Tan Sri Muhammad Shafee Abdullah.
Also present at today’s proceedings were Najib’s wife Datin Seri Rosmah Mansor and brother Tan Sri Nazir Razak, as well as children Datuk Mohd Nizar, Datuk Mohd Nazifuddin, and Puteri Norlis.
In the application, Najib, who is former Pekan MP, sought an order that, if the alleged addendum document is proven to exist, all or any of the respondents be compelled to enforce it immediately and transfer him from Kajang Prison to his residence in Kuala Lumpur to serve the remainder of his sentence.
Najib has been serving his sentence at Kajang Prison since August 23, 2022, following his conviction for misappropriating RM42 million from SRC International Sdn Bhd.
The High Court initially sentenced him to 12 years’ prison and fined him RM210 million, a decision that was subsequently upheld by the Court of Appeal and the Federal Court.
However, his petition for a royal pardon on September 2, 2022, resulted in the Pardons Board halving his prison sentence to six years and reducing his fine to RM50 million.
Meanwhile, speaking at a press conference after today’s decision, Shafee said the defence will file an appeal against the decision.
“We are appealing. We have requested for an early written judgment to be finalised and for the record of appeal to be prepared expeditiously, so that we can proceed to the Court of Appeal and, if necessary, the Federal Court,” Shafee said.
