House Arrest for Najib? Even the King/Ruler must follow the Constitution/Law? - An opinion piece

House Arrest for Najib - because the King granted him that? 

Malaysia is not a feudal state - where the King has absolute power to do anything, and we, the citizens, of Malaysia has no right but follow.

Malaysia is a DEMOCRACY - the power to choose the people's representatives(MPs/ADUNs) is with the people, and the chosen MPs amongst themselves decide who should be the Prime Minister (to be the Prime Minister, he/she needs the support of the majority of MPs) - and such a person can be Prime Minister - the King then appoints him/her as Prime Minister. The peoples' representative MPs can at any time remove any Prime Minister > No more PM once he/she loses the confidence or support of the majority of MPs...

Malaysia is a CONSTITUTIONAL DEMOCRACY - this means that the Constitution is Supreme, and even the government and the King cannot do anything against the Federal Constitution. Everyone, including the King, has to obey the law, and if the King commits a crime, the King too can be charged in court - the Special Court was created for this

Art. 183(3) The Special Court shall have exclusive jurisdiction to try all offences committed in the Federation by the Yang di-Pertuan Agong or the Ruler of a State and all civil cases by or against the Yang di-Pertuan Agong or the Ruler of a State notwithstanding where the cause of action arose.

Hence, the King of Malaysia, is different from the King in UK, because UK does not have a written Constitution, and Malaysia does.

In Malaysia, it is the Federal CONSTITUTION that sets out what a King can do on his own, and what he must do AS ADVISED by the Prime Minister or others.

40  Yang di-Pertuan Agong to act on advice 

(1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.

(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.

What the King can do on his own without following the advice of any is limited, and it is stated in Article 40(2)

(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:

(a) the appointment of a Prime Minister;

(b) the withholding of consent to a request for the dissolution of Parliament;

(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,

and in any other case mentioned in this Constitution.

Even when it comes to the appointment of the Prime Minister - the King cannot appoint anyone that he pleases to be Prime Minister. He can only appoint a MP ' who in his judgment is likely to command the confidence of the majority of the members of that House' (Art 43 (2)(a)). So he cannot appoint someone who does not have the support of the majority of the MPs. 

Now, we go to the power of PARDON, where here again, the King has to act on the advice of the pardons board.

What can the King do 'has power to grant pardons, reprieves and respites in respect of all offences'. There is nothing in  Article 42 that says that King has the power to remove a person serving his/her prison sentence, and order that he be placed under 'HOUSE ARREST'. Nor has the King the power to order special treatment in prison, or order that a prisoner to sent to another prison.

If the King made such an order for 'HOUSE ARREST', then it would be ultra vires(acting or done beyond one's legal power or authority) the Federal Constitution. Yes, the King's power is also determined by what the Federal Constitution states.

Pardons - forgive one who committed a crime

REPRIEVES - cancel or postpone the punishment of (someone, especially someone condemned to death).

RESPITE - 

respite (from something) a short break or escape from something difficult or unpleasant.

In the Constitution, they talk about  '.. grant pardons, reprieves and respites in respect of, or to remit, suspend or commute sentences...'

Hence, the Pardon powers of the King is restricted - he can commute death sentences to imprisonment, he can commute whipping to maybe imprisonment, he can shorten prison sentences or even end imprisonment and release. 

The King in exercising Pardon Powers cannot OVERTURN criminal convictions - that is the role/duty of the Courts and Judges(remember all High Court Judges, Court of Appeal Judges and Federal Court Judges, including the Chief Justice is all appointed by the King. So, if the King overturns any criminal convictions, he is overturning the decision of the King's judges - and that is ODD. It also implies maybe that the King has lost faith in his Judges - if so, then maybe Judges must be removed??? So, the King's Pardon powers, in my opinion, does not include OVERTURNING CONVICTIONS.

In the past, some Courts had relied on  Regulation 113 of the Prisons Regulations 2000, made by the Minister pursuant to the Prison Act 1995 - but, this is Regulation made by the Minister alone, unlike an Act of Parliament that is passed by Parliament. Hence it is absurd, in my opinion, to use such a Minister made Regulation to conclude or even suggest that the Pardon Powers of the King as stated in the Federal Constitution include both convictions and sentences. Pardon powers relate only to SENTENCES and not convictions. It does not make sense that a King or Ruler can overturn the conviction of the King's Judges. It is a 'slap in the face' for the Judges if this happens...Overturning convictions is something that should be left to the Courts. However, pardon can commute or reduce sentences because it is an act of 'MERCY' by the King/Ruler which should be based on good reasons

Now, since the King or Ruler must act in accordance with the advice of the Pardons Board, the King/Ruler should never be faulted for any wrong or unacceptable decision. The fault, in my opinion, should lie with the Pardons Board who had given 'bad' advice or advice that is against Malaysian laws to the King/Ruler.  

When any criminal is sentenced to imprisonment, he serves his prison sentence in the same prisons as every other convicted criminals. In some countries, there may be prisons for hardcore or serious crimes, and prisons for small-time criminals.

Article 8(1) All persons are equal before the law and entitled to the equal protection of the law.

Addendum Order, which would allow him to serve his reduced prison sentence under condition of “home arrest” instead of Kajang Prison.

ISSUE :- Does the King have the authority or power to order Najib to be placed under 'HOME ARREST' instead of serving out prison sentence in prisons? In my opinion, the King does not have that power - but let us see what the court says.

What is ODD is the delay in raising this issue, as Najib was pardoned at the end of January - although there are still doubts?

ISSUE :- Will it be right for Najib to be given house arrest, whilst other prisoners serve out their sentence in prisons? What does it mean? Does it mean that Najib can stay at home with family and servants, be allowed to have visitors, internet and phones...Will all other prisoners also be applying to the King for house arrest?

Interesting also is the fact that this issue of how the issue of 'house arrest' was just raised by the government recently...and, after about a month, Najib claims that the King ordered house arrest, and then the Home Minister says he is 'NOT AWARE' - he should either say YES or NO - a 'not aware' position is unacceptable.

Home Minister Datuk Seri Saifuddin Nasution Ismail today said he is not aware of a purported “supplementary order” from the previous Yang diPertuan Agong, for former prime minister Datuk Seri Najib Razak to serve the remainder of his reduced sentence under house arrest.

Prime Minister Anwar Ibrahim is yet to respond - note that a member of the Cabinet was in the Pardons Board, and so was the Attorney General. Is Anwar also 'not aware'? 

## There were some cases that dealt with Pardon, and I will discuss them at a later date. There have been some ERRORS is some of these judgments.

In new bid for judicial review, Najib claims previous Agong wanted him to serve remaining sentence at home

Former prime minister Datuk Seri Najib Razak (centre) at the Kuala Lumpur Court Complex, April 3, 2024. — Picture by Hari Anggara

By Kenneth Tee

Wednesday, 03 Apr 2024 2:52 PM MYT

KUALA LUMPUR, April 3 — Former prime minister Datuk Seri Najib Razak has applied to the High Court to compel the federal government and the Pardons Board to produce a purported “supplementary order” from the previous Yang diPertuan Agong.

In his application for leave to seek judicial review filed on April 1, Najib claimed Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah issued the order during the January 29 meeting of the board, for the former to serve the remainder of his reduced sentence under house arrest.

Al-Sultan Abdullah of Pahang reigned for five years as the 16th King of Malaysia until January 30, after ascending the federal throne on January 31, 2019.

Najib claimed that while the supplementary order or Addendum Order was made on January 29, it was omitted when his partial pardon was announced on February 2.

“His Majesty Seri Paduka Baginda the Yang Di-Pertuan Agong XVI had also immediately or simultaneously issued an Addendum Order on the same day which was within the powers and jurisdiction of His Majesty Seri Paduka Baginda the Yang Di-Pertuan Agong XVI.

“The Addendum Order curiously was not announced by the fourth, fifth, and sixth respondent or by any of the other respondents when the announcement of the Main Order only was made.

“This anomaly was never revealed nor explained by any of the respondents,” he said in his application.

A total of seven respondents were named in Najib’s suit, namely the Home Minister, Commissioner General of Prisons, the Attorney General, the Federal Territories Pardons Board, Minister in the Prime Minister’s Department (Law and Institutional Reform), the Director General of Legal Affairs Division and the Malaysian government.

In the application, Najib alleged that he received confirmation on February 12 about the issuance of the Addendum Order, which would allow him to serve his reduced prison sentence under condition of “home arrest” instead of Kajang Prison.

Najib’s application is set to be heard before High Court judge Datuk Amarjeet Singh Serjit Singh on April 4.

On February 2, the Pardon’s Board halved Najib’s sentence from a 12-year prison term to six years for misappropriating funds amounting to RM42 million, which means he may be released earlier on August 23, 2028.

Najib has been imprisoned since August 23, 2022, after the Federal Court upheld his conviction for criminal breach of trust, power abuse and money laundering over the misappropriation of SRC International Sdn Bhd’s funds.

The Pardon’s Board said it had also decided to reduce his RM210 million fine to RM50 million, and his early release would be contingent on him paying this amount.

Najib said his lawyers also wrote to, among others, Prime Minister Datuk Seri Anwar Ibrahim, Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi, Home Minister Datuk Seri Saifuddin Nasution Ismail as well as de facto law minister Datuk Seri Azalina Othman Said, seeking confirmation on the existence of the supplementary order.

In his grounds for the application, Najib said the Agong’s orders are not merely administrative decrees but reflections of the legal and moral authority vested in the monarchy.

“Therefore the respondents’ disregard to the requests of the applicant constitutes a direct intrusion of the applicant’s basic right as provided in the Constitution and the laws generally.

“Over and above this the defiance of the respondents constitute a direct contempt of the Institution of His Majesty Seri Paduka Baginda the Yang Di-Pertuan Agong.

“The respondents’ failure to answer the existence of the supplementary order and the applicant’s request to be served with it, along with the subsequent inaction by the Prison Department and the home minister to execute the said order is irrational, unreasonable, illegal and arbitrary,” Najib said.

Other reliefs sought by Najib include for the court to compel the respondents to execute said supplementary order. - Malay Mail, 3/4/2024

 

Najib wants house arrest, claims former King had ordered it

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By NURBAITI HAMDAN

• Nation

• Thursday, 04 Apr 2024

KUALA LUMPUR: Datuk Seri Najib Razak, who is jailed for offences linked to the misappropriation of funds from SRC International Sdn Bhd, is seeking to serve the remainder of his prison sentence under house arrest.

In his latest legal action, the former prime minister filed a judicial review application, claiming that there was an addendum order by the Yang di-Pertuan Agong in the royal pardon granted to him on Jan 29, whereby in the addendum, he was allowed to serve his prison sentence under house arrest.

The application will be heard at the High Court before Justice Amarjeet Singh today.

Najib filed it through law firm Messrs Shafee & Co on Monday.

He named the Home Minister, the Commissioner General of Prisons, the Attorney General, the Federal Territories Pardons Board, the Minister in the Prime Minister’s Department (Law and Institutional Reform), director-general of the legal affairs at the Prime Minister’s Department and the government as the first until the seventh respondents, respectively.

In the notice of application, Najib sought a mandamus order that all of the respondents or one of them to answer and verify the existence of the addendum order dated Jan 29.

Najib is seeking a mandamus order where if the addendum order exists, all or one of the respondents must execute it.

He is also seeking a mandamus order for all or one of the respondents to produce a copy of the royal decree and the addendum order, both dated Jan 29.

Najib is also seeking costs and other reliefs deemed fit by the court. - Star, 4/4/2024

 

Proposed home detention is to reduce prison crowding, not to let Najib off the hook, says home minister

Home Minister Datuk Seri Saifuddin Nasution Ismail speaks to reporters after visiting Rumah Seri Kenangan in Ulu Kinta, Ipoh March 4, 2024. — Picture by Farhan Najib

By John Bunyan

Monday, 04 Mar 2024 3:11 PM MYT

IPOH, March 4 — Home Minister Datuk Seri Saifuddin Nasution Ismail today clarified that the proposed introduction of home detention is merely to reduce the congestion in jails nationwide.

Saifuddin said that allegations suggesting the plan was proposed to specifically place former prime minister Datuk Seri Najib Razak, a convict in the 1MDB corruption case, under home detention is not true.

“I want to refute the ‘mischievous’ narrative played by a handful of media that the proposed home detention is meant for Najib.

“The proposed implementation is targeted specifically for certain categories of prisoner. There will be a panel that evaluates the type of offence, and it is only meant for prisoners serving jail time of four years or less.

“If they are sentenced to prison for up to 20 years because of a serious crime, no way will we be putting them under home detention,” he told a press conference after visiting Rumah Seri Kenangan in Ulu Kinta here.

Saifuddin pointed out that there are approximately 80,000 inmates housed in 43 prisons across the country at the moment.

“The current prisoner ratio per 100,000 population is at 244 in our country. This exceeds the international standard ratio of 145 prisoners per 100,000 population.

“So this is why we came up with the proposal to reduce the crowding in jails and not for other purposes,” he explained.

Earlier today, non-governmental organisation Projek SAMA called for a White Paper on the proposed introduction of home detention as an alternative to imprisonment for select prisoners to prevent potential abuse and the emergence of a two-tiered legal system.

The organisation said the White Paper will instil public trust that house arrest will not transform into an exclusive benefit for influential criminals or, worse, be manipulated as a bargaining tool in political negotiations.

It said if Najib were to employ home detention as a covert strategy to escape imprisonment, the trust deficit between Prime Minister Datuk Seri Anwar Ibrahim and his government, and both Malaysians and the international community would worsen.- Malay Mail, 4/3/2024

Home minister denies knowledge of 'addendum' on house arrest for former PM Najib

Home Minister Datuk Seri Saifuddin Nasution Ismail speaks during press conference in Putrajaya April 4,2024. — Picture by Miera Zulyana

By Muhammad Yusry

Thursday, 04 Apr 2024 3:19 PM MYT

PUTRAJAYA, April 4 — Home Minister Datuk Seri Saifuddin Nasution Ismail today said he is not aware of a purported “supplementary order” from the previous Yang diPertuan Agong, for former prime minister Datuk Seri Najib Razak to serve the remainder of his reduced sentence under house arrest.

However, Saifuddin said he received a letter from Najib’s lawyer Tan Sri Muhammad Shafee Abdullah a few days ago.

“I have no knowledge of it. He (Shafee) mentioned specifically about the addendum and then he sent a letter to me, you know, so as of now, I can say clearly that I do not know about it,” he said during a press conference at his ministry here.

Saifuddin said he will respond to the letter accordingly when the time is right.

“I have received a letter from Tan Sri Shafee in the past few days. Today I followed the report on addendum and all sorts of things. Of course, I will respond accordingly when the time comes because in our knowledge, so far, I can comment that I have received a letter,” he said.

He added that the letter contains the same content as what was read in the court.

Yesterday, Najib applied to the High Court to compel the federal government and the Pardons Board to produce a purported “supplementary order” from the previous Yang diPertuan Agong.

In his application for leave to seek judicial review filed on April 1, Najib claimed Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah issued the order during the January 29 meeting of the board, for the former to serve the remainder of his reduced sentence under house arrest.

Al-Sultan Abdullah of Pahang reigned for five years as the 16th King of Malaysia until January 30, after ascending the federal throne on January 31, 2019.

Najib claimed that while the supplementary order or Addendum Order was made on January 29, it was omitted when his partial pardon was announced on February 2.

In the application, Najib alleged that he received confirmation on February 12 about the issuance of the Addendum Order, which would allow him to serve his reduced prison sentence under the condition of "home arrest” instead of Kajang Prison.

Najib’s application is set to be heard before High Court judge Datuk Amarjeet Singh Serjit Singh on April 4. - Malay Mail, 4/4/2024