SHAH ALAM - The High Court’s decision on Datuk Seri Najib Razak’s bid to enforce an alleged royal addendum has gone well beyond the fate of the former prime minister.
Legal experts said it drew a clear line on how far courts can go in reviewing clemency-related decisions and how strictly constitutional procedures must be followed.
At the heart of the ruling is the issue of judicial limits and constitutional compliance, particularly under Article 42 of the Federal Constitution, which governs the powers of pardon exercised by the Yang di-Pertuan Agong and the state Rulers through the Pardons Board.
Senior partner of Messrs Anton and Chen, Alex Anton Netto said the decision effectively re-emphasised the judiciary’s role as the guardian of the Constitution, rather than an encroachment into royal prerogatives.
"In my opinion, this decision sets judicial limits on the judiciary to review clemency or royal pardon decisions.
"As an independent arm of any established democracy, the judiciary in Malaysia is tasked with the unenviable duty of ensuring that the Federal Constitution is followed to the tee, in line with the principle of 'Keluhuran Perlembagaan (The supremacy of the Constitution)," he said.
Alex said the crux of the case was not a challenge to the authority of the Malay Rulers or the validity of any royal decree, but whether the constitutional process had been complied with.
"As High Court judge Alice Loke Yee Ching discovered, the royal decree, which in itself is without question, had not been discussed nor decided upon by the Pardons Board. Hence the conundrum," he said.
He stressed that the court’s reasoning did not amount to questioning the monarchy, but rather examined whether there had been a breach of constitutional procedure.
"Any order made by any party is subject to judicial review. Coming back to our ex-prime minister’s case, there was never a questioning of the royal decree in itself nor an attack on the role and function of the Malay Rulers.
"It was purely a question of whether there had been a violation of the Federal Constitution," he added.
He said the ruling emphasised the importance of strict adherence to Pardons Board procedures, not only for high-profile cases but for all inmates.
"This is why the proper adherence to the rules as set by the Pardons Board ought to be followed when dealing with applications by inmates.
"Inmates naturally look forward to these applications as this affords them a glimmer of hope to one day hopefully be pardoned by the Ruler and be able to re-enter society," he said.
He said the decision should serve as a reminder to both lawyers and authorities to ensure due process was meticulously followed.
This decision, he said should serve as a timely reminder to lawyers who take up such cases to diligently follow the procedure as set since the formation of this nation and for the Pardons Board to continue dealing with such applications with a fine-tooth comb.
Echoing this view, lawyer Salim Bashir described the ruling as a pivotal moment in Malaysia’s pardon jurisprudence, with far-reaching constitutional implications.
"The High Court ruling signalled a pivotal decision impacting the pardon process in Malaysia and central to the decision was the interpretation and procedural compliance of the requirements under Article 42 of the Federal Constitution," he said.
Salim noted that the court’s reasoning reflected a strict insistence on constitutional obedience before any clemency-related decision can take effect.
The High Court ruling, he said resonated with the strict obedience to the constitutional needs of the Pardons Board deliberations before its decisions were carried out.
"The decision bolstered the notion that the monarch is subject to the Constitution and any irregular pardon exercise is susceptible to judicial review," he added.
He also pointed out that the ruling appeared to mark a departure from earlier apex court decisions that broadly shielded the prerogative of mercy from judicial scrutiny, though he cautioned that the present case involved a novel legal issue.
He added that in deciding the way it did, the High Court seemed to have squarely departed from a plethora of past apex court cases that have ruled on the issue of the prerogative of mercy exercised by His Majesty the Yang di-Pertuan Agong and the state Rulers.
"However, it is crucial to say that distinctions remain, as this is the first time a novel issue on an addendum to the pardon process was ventilated before a court of law," he said.
Beyond Najib’s case, Salim warned that the ruling could open the door to future legal challenges involving royal pardons, sentence reductions and special detention arrangements.
"The ruling could flare up and open possibilities of future challenges to clemency or reduction in sentencing," he said.
On Monday, the High Court dismissed Najib’s application to serve the remainder of his prison sentence under house arrest.
Loke made the decision after considering the arguments and reading out the grounds of judgment for nearly an hour.
Following the High Court’s decision, the former prime minister will continue to serve the remainder of his prison sentence at the Kajang Prison until its completion.
Najib, 72, has been incarcerated since Aug 23, 2022 after being convicted of misappropriating RM42 million of funds belonging to SRC International Sdn Bhd.
He has served more than three years of his sentence.
Had the application succeeded, the former Umno president would have been allowed to complete his sentence at his residence. However, following the court’s decision, he remains at the Kajang prison and is scheduled for release on Aug 23, 2028.
Despite the ruling, both the defence and the government retained the right to appeal the decision at the Court of Appeal.