House arrest order cannot be challenged, says senior lawyer

The conditions governing the house arrest of former prime minister Najib Razak cannot be challenged or amended further, a senior lawyer and a legal expert said today.

Senior lawyer Kitson Foong said the decisions of the Federal Territories pardons board are not subject to judicial review. He described as “constitutionally untenable” any attempt to question or seek an amendment to the conditions attached to Najib’s conditional pardon.

“The pardons board is neither a tribunal nor an ordinary administrative body whose decisions can be appealed against,” he told FMT. The board’s position is grounded in Article 42 of the Federal Constitution, under which its function is solely to advise the Yang di-Pertuan Agong.

“It is non-justiciable, that is, not subject to judicial review. It is entirely immune from judicial intervention as well as public debate,” he said.

Foong said the minutes and procedures of the board constitute confidential advice to the King; disclosure of the documents or questioning its standard of procedures would expose closed-door deliberations presented to the king.

Such actions risked undermining the royal prerogative and dragging it into public controversy when the power should remain protected from public discourse, he said in the wake of the government’s decision to turn down Najib’s request to include an additional residence as part of the conditions of the house arrest.

Home minister Saifuddin Nasution Ismail said the government is bound by the decision of the pardons board specifying only one residence.

Legal expert Nik Ahmad Kamal Nik Mahmood of the National Council of Professors said the public cannot question a matter if the courts cannot review it.

“While Article 42 does not specify in detail how a pardon is to be implemented, in my view, the pardons board has the power to clearly spell out the process, particularly how the pardon is to be carried out,” he said.

“Anything decided by the board cannot be reviewed by the courts. If the courts cannot review it, the public cannot question it,” Nik Ahmad added.

On Nov 12, the Dewan Rakyat was told that there were four categories of conditions attached to Najib’s conditional pardon. The conditions cover restrictions on residence and association, movement and visits, the use of telephones and telecommunications devices, and mandatory participation in rehabilitation and intervention programmes.

Najib began serving the remainder of his six-year jail sentence for the SRC International case under house arrest on Nov 10. His sentence is due to end on Aug 23, 2028.

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