High Court judge Justice Alice Loke this morning dismissed Najib’s application to serve his reduced six-year jail term for his SRC International conviction under house arrest.
In dismissing Najib’s judicial review application, Loke said the Yang di-Pertuan Agong was a constitutional monarch, and that his powers and functions were exercised in accordance with the provisions of the Federal Constitution.
“The exercise of the prerogative power of mercy is no exception.
“The addendum order was not deliberated or decided at the 61st Federal Territories Pardons Board (FTPB) meeting. There was no compliance with Article 42 of the constitution,” she said.
“Consequently, it is not a valid order. The respondents have no power and no duty to obey or enforce it. Conversely, the applicant has no right to the relief of mandamus.”
Loke ruled that the applicant’s argument – that the king was not obliged to make decisions during the FTPB meeting – had no legal basis and was untenable.
Najib, through his lawyer Shafee Abdullah, had argued that the king was not a member of the board and was entitled to make his decision in any manner and at any time that satisfied him personally.
“I am of the view that if Article 42 provides for the king to preside over the FTPB meeting, then it does not envisage a decision by the king being made outside that meeting,” she said.
“I find it a startling proposition to suggest that the Yang di-Pertuan Agong can exercise prerogative powers outside the pardons board meeting. It would invite arbitrary decisions.”
She also noted the important advisory role of the FTPB in guiding the king’s decision: “The attorney-general, as the government’s principal legal adviser, is a member of the board. It is mandatory for the board to consider his views.
“Taken together, these requirements do not envisage a decision by the king outside the pardons board meeting. In other words, the king cannot decide independently of the board,” she said.
FTPB never discussed house arrest
Loke said the FTPB had provided its advice on the proposed full pardon as well as the 50% reduction of prison term, but that there was no mention of house arrest during the meeting presided over by the king.
She said the king had only made one decision, on the reduction of the prison term and fine.
“In light of this evidence from the respondents, it is indisputable that house arrest was not discussed at the meeting. There was absolutely no mention of it.
“The fact that it was referred to as a supplementary order confirms this,” she said, adding that the obvious conclusion was that the addendum was not issued in accordance with Article 42.
Senior federal counsel Shamsul Bolhassan and Hanir Hambali appeared for the government.
The judge made no order as to costs.
Najib, 72, was convicted of misappropriating RM42 million in SRC International Sdn Bhd funds and has been serving his sentence at Kajang prison since Aug 23, 2022.
In 2024, the FTPB halved his prison term from 12 years to six and reduced his fine from RM210 million to RM50 million.
A judicial review was filed last year seeking to compel the government to execute the addendum, or supplementary decree, to place him under house arrest.
Najib claimed that the supplementary decree was not announced by the pardons board, and that the government was in contempt for not executing it.
On Jan 6 this year, the appeals court, by a 2-1 majority, allowed the addendum to be entered into evidence and granted the former prime minister leave to pursue judicial review proceedings.