THE Attorney General’s Chambers (AGC) has maintained that the Yang di-Pertuan Agong’s prerogative power of pardon under Article 42 of the Federal Constitution is not open to judicial review, arguing that the courts have no jurisdiction to determine the Malaysian Bar’s challenge against the Pardons Board’s decision involving Datuk Seri Najib Razak.
Federal Counsel Ahmad Hanir Hambaly, representing the Attorney General, made the submission during the Malaysian Bar’s appeal for leave to commence judicial review proceedings over the decision to reduce Najib’s prison sentence and fine in the SRC International Sdn Bhd case.
Ahmad argued that the relief sought by the Malaysian Bar, including an order preventing the Pardons Board from accepting, considering or deciding any further pardon applications, sentence postponement requests or temporary suspension of punishment involving Najib, was not legally sustainable.
He said the proposed order would remain until all criminal proceedings or charges involving the former prime minister were concluded, he publicly accepted responsibility for the acts that led to his conviction, and expressed remorse for his actions.
Citing previous decisions by the Federal Court and Court of Appeal, Ahmad said AGC maintained that such an order was unlawful, invalid and could not be enforced against the Yang di-Pertuan Agong.
“The Attorney General submits that reliance on Article 40(1A) of the Federal Constitution to support the argument that this matter can be reviewed by the courts is a misconception.
“Article 40(1A) of the Federal Constitution only applies in circumstances where the Constitution or federal law provides that the Yang di-Pertuan Agong shall act according to advice.
“Therefore, the Attorney General submits that if the decision to grant a pardon is not subject to judicial review, then the process leading to that decision is also not subject to judicial review,” he said.
Meanwhile, lawyers representing the Malaysian Bar, Zainur Zakaria and Datuk Yeo Yang Poh, argued that the decision of the Pardons Board for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya could be challenged in court.
Yeo submitted that while the Yang di-Pertuan Agong possesses the prerogative power to grant pardons, His Majesty is required to act upon the advice of the Pardons Board.
He argued that the advice provided by the Pardons Board could be subject to legal scrutiny and that the Malaysian Bar’s application sought to have the issues examined and determined through a full hearing.
A three-member Court of Appeal panel chaired by Justice Datuk Lim Chong Fong, together with Justices Datuk Azhahari Kamal Ramli and Datuk Leonard David Shim, fixed case management for August 7 before determining the date for its decision.
On November 11, 2024, the High Court dismissed the Malaysian Bar’s application for leave to commence judicial review proceedings challenging the Pardons Board’s decision to reduce Najib’s sentence in the SRC International case.
Judge Datuk Ahmad Kamal Md Shahid ruled that the matter raised by the Malaysian Bar was not an issue that could be determined by the court through legal principles.
On February 2, 2024, the Pardons Board Secretariat announced that Najib’s 12-year prison sentence had been reduced by 50 per cent, while his fine was reduced from RM210 million to RM50 million.
The Malaysian Bar had sought declarations that the Pardons Board’s decision was unlawful, unconstitutional and invalid. - July 31, 2026
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