Court to rule in January on Bar’s challenge to Najib’s 2024 clemency

The Court of Appeal will rule on Jan 7 on the Malaysian Bar’s challenge to the Federal Territories Pardons Board’s (FTPB) 2024 decision to halve former prime minister Najib Razak’s jail term and reduce his fine in the SRC International case.

The decision comes after the FTPB granted Najib a conditional pardon last week, allowing him to serve the remainder of his sentence under house arrest until Aug 23, 2028, subject to the payment of a RM50 million fine.

Bar counsel Rajpal Singh Ghai said the Court of Appeal registry informed the parties of the Jan 7 decision date about two weeks ago, before the FTPB granted Najib the latest conditional pardon.

A three-member bench comprising Justices Lim Chong Fong, Azhahari Kamal Ramli and Leonard David Shim heard the Bar’s appeal on July 31 against the High Court’s refusal to grant leave for judicial review.

The Bar is seeking to quash the 2024 decision and obtain a declaration that it was unlawful, unconstitutional and void.

During the hearing, lawyer Yeo Yang Poh argued that accountability was a fundamental pillar of the justice system, and that the FTPB’s decision should be subject to judicial scrutiny.

“The FTPB must be held accountable to the people. As such, its decisions must be susceptible to judicial review, and the doors of the court must not be shut,” he said.

Yeo said the threshold for leave was low and that the Bar had raised an arguable case that was neither frivolous nor vexatious.

Former Bar president Zainur Zakaria argued that a 1994 constitutional amendment had removed the Yang di-Pertuan Agong’s absolute discretion in exercising his constitutional functions.

He relied on Article 40(1A), which requires the king to act in accordance with advice when exercising such functions.

Opposing the appeal, senior federal counsel Ahmad Hanir Hambaly said the High Court was right to refuse leave as the matter was non-justiciable.

He said the challenge concerned the Yang di-Pertuan Agong’s prerogative under Article 42 of the Federal Constitution, which was not amenable to judicial review.

Najib’s lawyer, Shafee Abdullah, adopted the government’s submissions, arguing that the final decision on a pardon rests with the Yang di-Pertuan Agong, while members of the board merely offer their views.

The FTPB reduced Najib’s original 12-year sentence to six years and his RM210 million fine to RM50 million in January 2024.

Under last week’s conditional pardon, Najib must comply with the conditions imposed or risk having the pardon revoked and being returned to prison.

The Court of Appeal’s ruling will determine whether the Bar can proceed with its substantive challenge to the 2024 decision.

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