Rulers must inquire into ‘supplementary order’, says retired judge

Hamid Sultan Abu Backer says Article 38 of the Federal Constitution allows the Conference of Rulers to inquire into the contents of Ahmad Zahid Hamidi’s recent affidavit.

PETALING JAYA: A retired judge has called on the Conference of Rulers to initiate an inquiry into the contents of an affidavit filed by Ahmad Zahid Hamidi in Najib Razak’s ongoing court action relating to his pardon process.

“This must be the first time in world political history that a sitting deputy prime minister has alleged the concealment by his own government of an order issued by a head of state,” former Court of Appeal judge Hamid Sultan Abu Backer told FMT.

He said the contents of the affidavit are “potentially damaging to the rule of law”.

“Given that the affidavit is now in the public domain, the Conference of Rulers ought to take cognisance of it and direct that the appropriate inquiries be made into its contents,” said Hamid.

Such an inquiry can be conducted independently of ongoing court proceedings and would not be sub-judice, he added.

In any case, Hamid said a court decision is not a viable option for resolving the present conundrum as the legal process, including all appeals, may take several years to complete.

He said it was of “paramount importance” that the rulers act immediately and decisively to satisfy themselves as to the truth of the allegations contained in the affidavit, adding that they are empowered to do so by the Federal Constitution.

“Article 38 provides the rulers with a solution for dealing with sensitive matters,” said Hamid.

The provision gives the rulers – namely, the Yang di-Pertuan Agong, nine sultans and the governors of Penang, Melaka, Sabah and Sarawak – absolute power to grant pardons, reprieves and respites, and to remit, suspend or commute sentences.

In July 2020, Najib was convicted by the High Court of seven charges of abuse of power, criminal breach of trust and money laundering involving RM42 million in SRC International funds. He was sentenced to 12 years’ imprisonment and fined RM210 million.

Both his conviction and sentence were later affirmed by the Court of Appeal and the Federal Court, respectively. Following the apex court verdict, Najib began serving his jail term on Aug 23, 2023.

However, on Feb 2 this year, the Federal Territories’ Pardons Board announced that it had four days earlier halved Najib’s prison sentence and reduced his fine to RM50 million.

It also announced that Najib, 70, would be released from Kajang Prison on Aug 23, 2028.

In his pending application for leave to commence judicial review, Najib claimed that then king Al-Sultan Abdullah Sultan Ahmad Shah had on Jan 29 also issued a “supplementary order” which purportedly allows the former prime minister to serve the remainder of his sentence under house arrest.

In an affidavit affirmed on April 9 in support of Najib’s application, Zahid confirmed sighting a scanned image of the purported “supplementary order” on Jan 30. The Umno president said the order exists and is genuine, but says he is not in possession of a copy.

A copy of the affidavit, which surfaced last Wednesday, has since been circulated widely online.

In the light of Zahid’s revelations, Hamid said the rulers must inquire whether such an order was issued, and if so, why it has not been executed by the government.

“In my view, unless the government has an acceptable explanation, failing to give effect to the order would be prima facie tantamount to a violation by the government functionaries responsible of their oaths of office,” he said.

“All members of the executive branch take an oath to preserve, protect and defend the Federal Constitution. The constitution empowers the rulers to grant pardons and commute sentences according to their absolute discretion.

“Once exercised, it is the solemn constitutional duty of the government to execute the pardon according to its full terms and effect,” said Hamid.

Any failure to do so would be tantamount to a violation of that duty, he added.