The discussion surrounding former Prime Minister Datuk Seri Najib Razak’s house arrest highlights significant legal interpretations, constitutional discretion, and the principle of justice beyond political influence.
KUALA LUMPUR – Former Prime Minister Datuk Seri Najib Razak’s ongoing legal saga has sparked renewed debate on the principles of justice, constitutional discretion, and the role of political influence in the law. At the heart of this debate is whether Najib’s situation has been handled with fairness, or if his case reflects a broader miscarriage of justice.
Amid discussions about house arrest for Najib, it is essential to clarify that house arrest does not require new laws. It is a matter based on the discretion of the Director-General (DG) of the Prison’s Department and the Home Minister, exercised only under special circumstances to avoid any risk of abuse of power. Despite this, there are those who argue that when Najib was jailed on 23 August 2022, neither the DG nor the Home Minister acted swiftly, despite Najib being unrepresented in court at the time.
Political Detention and Abuse of Power Allegations
Critics argue that Najib’s incarceration can be seen as a form of political detention, with some describing him as a political prisoner. The lack of action on the part of the authorities to review his detention at the time has led to accusations of arbitrary detention. It has been suggested that Najib’s family, under the guidance of Judge Hamid Sultan Backer, should have filed a habeas corpus application to the High Court, or even petitioned the Conference of Rulers to address these grievances.
Such actions would have provided a platform to challenge what they perceive as an abuse of power, possibly preventing the miscarriage of justice that Najib’s supporters believe he has faced.
Agong’s Discretion: Beyond Discretion
The Agong’s Decree in Najib’s case draws from the 2009 Perak case law, where the Sultan’s discretion was described as “Discretion beyond Discretion.” The Perak case established that while the Governor’s discretion is limited by the Constitution, the Sultan’s, and by extension the Agong’s, residual and reserve powers give him the authority to exercise discretion without restriction. If the Agong believes that there has been a miscarriage of justice, he may act based on his personal judgment, without needing advice from the Prime Minister or any other authority.
In the case of Najib’s house arrest, the Agong’s Decree does not require any special law, as the Agong is not bound to justify his decision when he feels that a miscarriage of justice has occurred. This broad discretion means that the law need not be made for Najib, as the decision arises from the Agong’s constitutional role.
Legal Steps Forward For Najib: Court of Appeal and Beyond
As Najib has now filed an appeal at the Court of Appeal (CoA), challenging the government’s handling of the Agong’s Decree on house arrest, his legal journey continues. However, observers speculate that the CoA, being a redundant court, may likely affirm the High Court’s ruling, providing no reason to interfere with the decision.
In this scenario, Najib may be compelled to appeal to the Federal Court, with many watching to see how the Apex Court will rule on this complex and highly significant case. Should the Federal Court rule against Najib, he would still have the option to pursue a Federal Court Review, potentially for multiple rounds, keeping his legal options alive for the foreseeable future.
The Role of New House Arrest Legislation
Rumors have circulated that the government may be planning to introduce a new law on house arrest, potentially in light of Najib’s situation. However, it is unlikely that any such law could apply to Najib’s case retroactively, as the Agong’s Decree, based on Discretion beyond Discretion, stands independent of legal frameworks.
Supporters argue that Najib’s reduced sentence, with the halving of his original 12-year term, should also be subject to further review. They believe that if no remission is applicable, Najib has the right to reject the halving of his sentence and pursue full accountability through legal avenues.
Conclusion: Seeking Justice
The complex legal battle surrounding Najib Razak is far from over. While some view his legal challenges as a matter of politics, others see it as a test of Malaysia’s legal system and its capacity to address claims of miscarriage of justice. With the Agong’s Decree, constitutional discretion, and ongoing court battles, the former Prime Minister’s case continues to captivate the nation.
As legal experts, the media, and the public await the next steps in Najib’s appeal process, it is clear that the discussion surrounding fairness, justice, and the Constitution will remain central to his defense. – NMH
Datin Hasnah is the co-founder and CEO of New Malaysia Herald based in Kuala Lumpur, Malaysia.
With an extensive background in mass communication and journalism, she works on building up New Malaysia Herald and it’s partner sites. A tireless and passionate evangalist, she champions autism studies and support groups.
Datin Hasnah is also the Editor in Chief of New Malaysia Herald.
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