KUALA LUMPUR: The prerogative of granting pardons is solely at the discretion of the Yang di-Pertuan Agong (YDPA) and is not open to judicial review, the High Court ruled today.
Judge Datuk Ahmad Kamal Md Shahid said the authority under Article 42 of the Federal Constitution (FC) is not transferred to or handled by the Federal Territories Pardons Board (FTPB).
This power, Ahmad Kamal said, remains exclusively with the King.
He said this decision effectively reinforces that any challenges to the FTPB's decisions related to the prerogative of granting pardons are not within the judiciary's scope for review.
He said this in his judgment when dismissing the Malaysian Bar's leave (permission) to initiate a judicial review application challenging the board's decision to halve Datuk Seri Najib Razak's prison sentence for his SRC International corruption conviction.
"The applicant (Malaysian Bar) argues that it is not challenging the prerogative of the King but is instead focusing its challenge on the advice provided by the FTPB.
"In essence, the applicant is splitting the decision of the YDPA and the advice from the Pardons Board.
"I am of the considered view that the applicant's attempt to differentiate between challenging the advice of the Pardons Board and the actual decision of the YDPA is flawed, it is non-challengeable.
"The decision of the YDPA and the advice of the FTPB are all part and parcel of one process that culminated with the granting of pardon.
"Consequently, (it is) not a matter that is suitable and appropriate to be reviewed before the court," he said.
He said the applicant also argued that Article 40(1A) of the FC has removed any personal discretion in granting pardons that is to say YDPA must act according to the advice of a Pardons Board.
Article 40(1A) stipulates that all powers of YDPA (including the power to grant pardons) must be exercised in accordance with the advice of the appropriate person or body of persons and YDPA shall accept such advice.
"I am of the considered view that the reliance on Article 40(1A) to support the applicant's contention that this application is justiciable is devoid of merit.
"I find that Article 40(1A) only applied in the situation when it is provided under the Constitution or the Federal laws that the YDPA is to act on the advice.
"It is clear that the power of pardon is a decision specifically entrusted to the sole discretion of the YDPA.
"Therefore, the final and conclusive determination rests with the YDPA and not the Pardons Board," he added.
In the application filed on Apr 26, the Malaysian Bar wanted the FTPB's decision against Najib made on Jan 29 as unlawful, unconstitutional and void.
The Malaysian Bar is also seeking a permanent injunction to restrain Najib, his servants, and his agents from submitting any application for a pardon until he publicly accepts responsibility and expresses repentance for his actions.
On Feb 2, FTPB reduced Najib's fine and halved his 12-year jail term to six.
This means that the former prime minister will be released from prison on Aug 23, 2028.
Najib is currently serving a 12-year jail term after he was found guilty of one count of abuse of power over Retirement Fund Inc's (KWAP) RM4 billion loan to SRC International Sdn Bhd, as well as three counts each for criminal breach of trust and abuse of power involving RM42 million of SRC funds.
He was also fined RM210 million.