Former Prime Minister Najib Tun Razak may rethink judicial review on house arrest after Agong, as hereditary ruler with reserve and residual powers, halved 12 year jail sentence and reduced fine!
Commentary and Analysis . . . Retired judge Datuk Hamid Sultan Abu Backer has literally thrown cold water on former Prime Minister Datuk Seri Najib Tun Razak’s Judicial Review (JR) on house arrest which will be heard in the High Court on 5 June.
The media has quoted him as saying that “Article 38 provides the rulers with a solution for dealing with sensitive matters”. He was touching on the Affidavit on house arrest filed by Deputy Prime Minister and Umno President Datuk Seri Ahmad Zahid Hamidi on 17 April.
Briefly, under the provision, the Conference of Rulers has “absolute power to grant pardons, reprieves and respites, and to remit, suspend or commute sentences”.
The retired judge said the Affidavit was “potentially damaging to the rule of law”.
“Given that the Affidavit was now in the public domain, the Conference of Rulers ought to take cognisance of it and direct that the appropriate inquiries be made into its contents,” added Hamid and assured that it would not be subjudice as the JR can still proceed.
Deputy Prime Minister
He cautioned that “this must be the first time in world political history that a sitting deputy prime minister has alleged the concealment by his own government of an order issued by a head of state”.
He stressed that the High Court — read JR — “was not viable option for resolving the present conundrum as the legal process, including all appeals, may take several years to complete”.
Having said that, there are other Narratives out there on Najib’s plight in jail since 23 August 2022.
Patently, Agong could not have implied on 29 January, after decreeing halving of the 12 year jail sentence, that Najib gets no remission and that he can only be released on 23 August 2028. The house arrest remains separate issue. House arrest can only be based on Discretion, not law. There can be no law on house arrest.
There’s no house arrest for Najib, as matters stand, before 5 June, the next date for the JR set on 17 April by High Court Judge Amarjeet Singh. We stand corrected on the house arrest and reiterate that it may still happen by June 5 if the government concedes on the matter. Alternatively, if we head for the tangent from this, Attorney General Tan Sri Ahmad Terrirudin Mohd Salleh will parrot the same line he used on 4 April and 17 April i.e. the court has no jurisdiction. Najib filed JR on 1 April.
Agong could not have further implied that Najib will only be released on 23 August 2029 if he defaults on the RM50m fine i.e. the additional one year jail running consecutively. In Malaysia, jail sentences run concurrently i.e. at the same time. That means the one year runs during the six years remaining after halving.
These dates are in the Pardons’ Board letter dated 29 January 2024 which was copied for Najib and the Director-General (DG) of the Prisons’ Department.
The DG can confirm that as per procedures, Najib gets remission of one third, i.e. on the halving of the jail sentence. Two years deducted from the six leaves four years. Again, as per procedures, Najib serves half the remaining sentence and goes home on 23 August THIS year.
The DG, based on Discretion, can place Najib under immediate house arrest, with or without Agong’s additional Decree on the same day, 29 January, but reportedly without input from the Pardons’ Board. In any case, besides house arrest, the Board will also not recommend halving of the jail sentence and fine reduction. Remission, which reduces jail sentence, comes within the ambit of the Board based on procedures. There can be law or no law on remission.
Najib
It has been argued that “house arrest has never existed in the legal system because it was not provided for in Article 42 of the Federal Constitution or the Prison Act”.
KiniGuide found that section 43 of the Prison Act 1995 allows for the release of any prisoner “on licence” but it is “subjected to any regulation made by the minister” – in this case, it falls under the purview of Home Minister Datuk Seri Saifuddin Nasution Ismail. The provision also stipulates that the “conditions” for the release of any prisoner “may be specified in the licence”.
Articles 42(1) and 42(2) of the Federal Constitution may or may not include the power on directing that convicted person serves sentence in a particular way. The legal fraternity has been splitting hairs over ‘pardons’, ‘reprieves’, ‘respites’, ‘remit’, ‘suspend’ and ‘commute’ in the Constitution.
In law, the passionate takes by senior international lawyer G.K. Ganesan, in YouTube video, don’t hold water. In law, there’s no place for emotions. He has promised another video on what the Pardons’ Board discussed on 29 January.
The Board could not have discussed only the Application by Najib, i.e. if it did. The Board, generally makes recommendations on several cases, at one and the same sitting. If an Applicant has served half the remaining time after remission, he or she merits Pardon, the Board makes the recommendation and the Agong will sign the Pardon document based on law. The Agong doesn’t decide on Pardon during the Pardons’ Board meeting. He complies with the law i.e. acting upon advice under Articles 42(1) and 42(2).
The Pardons’ Board, it can be safely said, will never recommend anything for no rhyme or reason.
If the Agong, based on Discretion, decree halving of the sentence, reduction of fine, house arrest, Freedom and Pardon, no court of law can go against him.
The court has no jurisdiction. In short, the matter isn’t justiciable.
The US Presidential powers on Pardon and in Commonwealth jurisdiction also refer.
Therein lies the matter.
House Arrest
The letter of the law, by itself, isn’t law. Opinion isn’t law. Only the court can declare law. Declarations are not remedies. In law, if there are rights, there must be remedy.
Remedies come when the court of law rules on decisions taken in Submission (it’s about law) by parties in dispute on issues in conflict. There may also be out of court settlement. The Agreement, if any, would be recorded by the High Court.
If there’s no law on house arrest, the court has no jurisdiction on the matter.
If Agong decreed house arrest, based on Discretion, the court has no jurisdiction.
If the government does not respect the Discretion of the Agong, there will be constitutional crisis sooner rather than later.
Prime Minister Datuk Seri Anwar Ibrahim may be wagging the tail because the Agong who decreed on Najib has left. If the Agong was still around, Anwar will be like Church mouse.
Scapegoat
Anwar, by pointing at the Pardons’ Board as the scapegoat, may be making up stories as he goes along.
He was being disingenuous when the Pardons’ Board did not recommend halving, fine reduction and house arrest.
It’s open secret that the Board recommended that Najib continue the sentence. We will have further confirmation when lawyer Ganesan releases the next video in YouTube.
The Pardons’ Board remains an Advisory Body.
The Agong, as often stressed by Anwar, has sole discretion.
Again, Agong decreed halving and fine reduction during the Pardons’ Board meeting. The 29 January letter by the Board reflects the Decree.
All are bound by this letter. Najib merits remission based on the halving. If so, he goes home on 23 August this year.
House arrest isn’t the issue. The issue is remission on the halving.
It’s discriminatory if there’s no remission on the halving. Article 8 (no discrimination) and Article 5 (right to life) refer.
It’s besides the point whether Agong decree house arrest during or after the meeting. The Pardons’ Board will never recommend house arrest.
What Anwar’s disingenuous statement means is that Najib will be in jail until 23 August 2028.
If he defaults on the RM50m fine, he will be in jail until 23 August 2029.
These dates are in the Pardons’ Board letter dated 29 January 2024.
The dates, if flawed and unsafe in law, needs further and better particulars.
If Najib’s 12 year jail sentence wasn’t halved, he gets one third off in remission, and will be released on 23 August 2026 after serving half the remaining eight years sentence i.e. he serves four years from 23 August 2022 to 23 August 2026. The Dr Ganja case refers.
Sodomy II
Anwar himself was released from prison after GE14 on 9 May 2018 and granted Pardon on 16 May as recommended by dictatorial Prime Minister Tun Mahathir Mohamad. Najib, likewise, will be eligible for Pardon after he goes home. All convicts are eligible for Pardon upon serving half the remaining sentence after remission.
The question that arises, in the wake of the plight of Najib in jail, was what the Pardons’ Board recommended on 16 May 2018 on Anwar’s incarceration for Sodomy II.
Wikipedia has some dates.
Anwar served almost the full five year sentence imposed by the Federal Court in March 2014. When he was Pardoned on 16 May 2018, he had only 10 months left without remission on the jail sentence. Again, there can be law or no law on remission.
Agong, in granting Anwar Pardon, said belatedly that there had been miscarriage of justice. If Agong says miscarriage of justice, there has been miscarriage of justice.
Anwar claims the Pardon was for both Sodomy 1 and Sodomy II. The Anwar Pardons case was raised in court but petered out on jurisdictional grounds.
In Sodomy 1, Anwar won the Appeal on sodomy but lost the corruption charge i.e. telling the police to close the case.
The Sodomy 1 case was initiated after Anwar instructed his secretary to file police report on the allegations in a book. Mahathir closed the file but re-opened it after Anwar was sacked and challenged the “spineless government” to charge him.
Mahathir pointed out in the media that Anwar brought about the Sodomy 1 charges upon himself.
Sodomy II may have happened because Saiful Bukhari Azlan, one time Anwar aide and accuser, was the point man along with Datuk Seri Jeffrey Kitingan’s aide Phillip Among on the failed 16 Sept 2008 People’s Revolution for toppling the Badawi government.
Mahathir reportedly took offence and allegedly instigated Najib on Sodomy II. The Speaker did not accept the confidence motion on Badawi. There have been no indications that Anwar holds grudge against Najib for Sodomy II. — NMH
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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