In its memorandum of appeal filed in the Court of Appeal last month, the Bar said Justice Ahmad Kamal Shahid erred in knocking out its leave application solely on grounds that it was not justiciable.

It said the application named several novel issues which the court should investigate and determine.

“The judge erred in summarily dismissing the applicant’s (Bar) contentions that Article 40 (1A) introduced into the Federal Constitution on June 24, 1994 has significantly changed the law,” the court filing, sighted by FMT, said.

The Bar said the constitutional function of the Yang di-Pertuan Agong to grant pardons and reprieves was previously regarded as a “royal prerogative” exercisable by the monarch at his discretion without having to accept the pardons board’s advice.

“The amendment now requires the king to ‘accept and act under’ the advice of the Pardons Board.

“The previously found element of personal discretion and prerogative has thus been removed,” read the document filed by solicitors Amir & Rajpal Ghai.

The Bar said the judge erred in holding that the issue of non-justiciability was settled law, without considering in depth the critical changes brought about by the amendment.

It said judicial precedents which held that the grant of pardons and reprieves was non-justiciable were found in cases which were decided before the said constitutional amendment.

“The judge erred in relying on those authorities without regard to the constitutional amendment,” it added.

The Bar said the judge also erred in misconstruing the subject matter of the judicial review. It said the FTPB is constitutionally empowered to advise the king, which advice the monarch is constitutionally required to consider. As such, the court is empowered to review its decision.

It also contends that the judge was wrong to rule that the Bar was “splitting” the decision of the king from the advice of the FTPB, when that was not the position taken.

In calling for the Court of Appeal to reverse the ruling, the Bar said the threshold for leave in a judicial review was low. It said its application was not frivolous and that it had an arguable case.

The appeal has been fixed for case management on March 3.

In November last year, Ahmad Kamal dismissed the Bar’s application, ruling that the subject matter of the Bar’s proposed judicial review application was non-justiciable.

“I am of the view that the decision of the Yang di-Pertuan Agong and the advice of the FTPB are all part and parcel of one process that culminated with the pardon of the king. Consequently, it is not a matter that is suitable and appropriate to be reviewed by this court,” he said.

The judge ruled that the prerogative of mercy, pursuant to Article 42 of the constitution, involved a direct exercise of the king’s personal discretion.

It was not a power held or delegated to the FTPB, he said.

“I am of the view that the applicant’s (Bar) attempt to differentiate between challenging the advice of the FTPB and the actual decision of the king is flawed. It is non-challengeable,” he said.

The Bar filed its application in the High Court on April 26, 2023, naming the FTPB and Najib as respondents.

It sought declarations that the FTFB’s Jan 29 decision halving Najib’s prison sentence to six years and reducing his fine from RM210 million to RM50 million was illegal, unconstitutional, and invalid.

Najib has been serving his sentence in Kajang prison since Aug 23, 2022, after he was convicted of misappropriating RM42 million from SRC International.

He filed a petition for a royal pardon on Sept 2, 2022, resulting in the board reducing his prison sentence and fine.