Court's decision could allow Najib to serve his remaining sentence at home, lawyers say
If the Court of Appeal rules that the royal addendum exists, the case must be referred to the High Court and heard on its merits once leave is granted.
SHAH ALAM - Although there is no law on house detention currently being drafted, former prime minister Datuk Seri Najib Razak could still serve the remainder of his prison sentence at his residence if the court confirms the existence and validity of the royal addendum related to his sentence.
Lawyer Mohamed Haniff Khatri Abdulla said the majority of Malaysians, including politicians, misunderstood when they attempted to link the implementation of the House Arrest Bill, which is set to be presented in Parliament next year, with the decision made through the royal addendum previously issued by the 16th Yang di-Pertuan Agong.
He said the drafting of the House Arrest Bill has nothing to do with the royal pardon decision made by the previous Yang di-Pertuan Agong, through the royal addendum.
"In fact, the process of granting a pardon by the Yang di-Pertuan Agong is independent of any existing laws, including the Prisons Act or the home detention law currently being drafted by the government," he told Sinar.
Haniff added that the House Arrest Bill being drafted by the government was aimed at giving the court the power to impose home detention on an offender without them needing to go to prison.
This, he said was a judicial matter that has nothing to do with the powers of the Pardons Board or the Yang di-Pertuan Agong as set out by the Federal Constitution.
"Therefore, whether the House Arrest Bill is passed next year or not, it will not affect the power of the Yang di-Pertuan Agong.
"In fact, if the Yang di-Pertuan Agong wants to order a prisoner to be pardoned and freed immediately or placed in a specific hotel, he can do so because his powers are not bound by any law," he added.
Meanwhile, Haniff said a reduction in a prison sentence for good behaviour could also be granted under Section 44 of the Prisons Act 1995, without the approval of the Royal Pardons Board or upon the discretion of the Yang di-Pertuan Agong.
He also noted that Section 43 of the Prisons Act 1995 grants the Home Minister the authority to allow a prisoner to serve their sentence in any location deemed appropriate, including factories and residential homes declared as prisons.
"Similarly, Section 46 of the Act allows the Parole Board to consider the release of prisoners under certain conditions after serving part of their sentence.
"So we must distinguish between the powers of the Yang di-Pertuan Agong’s pardon and the reduction of sentences or parole requests granted to prisoners after they have served part of their sentence," he added.
Haniff said the Court of Appeal’s decision on Jan 6, next year, will determine whether the royal addendum existed, which would allow Najib to serve the remainder of his prison sentence at home.
If the Court of Appeal confirmed the existence of the royal addendum, the case would be transferred to the High Court for hearing based on its merits once leave was granted.
Similarly, lawyer Mohd Zainuddin Omar agreed that Najib could serve the remainder of his sentence at home if he has received a royal pardon from the previous Yang di-Pertuan Agong.
This, he said was because the Yang di-Pertuan Agong's power of pardon was absolute and has no connection to the House Arrest Bill, which deals with punishment, whether it has been established in Malaysia or not.
However, Zainuddin said the current issue was whether the court has the jurisdiction to deliberate on the power of the royal pardon and the Yang di-Pertuan Agong.
As a result, the Court of Appeal’s decision on Jan 6 will take into account various technical issues, including the interpretation of the Federal Constitution, to determine whether the court has jurisdiction to hear the case regarding the royal addendum.
Zainuddin said the alleged existence of the royal addendum has never been officially issued or confirmed by the Pardons Board or the Yang di-Pertuan Agong.
In fact, he said the High Court had previously ruled that the issue of the royal addendum was hearsay, with no solid evidence presented by the parties involved.
"Even though there are claims that the royal addendum, widely circulated on social media, is "true" despite lacking the Yang di-Pertuan Agong’s signature, its validity and legal effect can still be debated since it was not issued by the Yang di-Pertuan Agong himself or through the Pardons Board," he said.
