DECEMBER 27 — The High Court’s decision on Monday (December 22) dismissing former prime minister Datuk Seri Najib Razak’s attempt to serve the rest of his six-year jail term at home has drawn mixed reactions, for and against.
One of the main criticisms against the decision is the apparent disregard of the so-called long line of authorities of the apex courts that have consistently held that a decision in the exercise of the prerogative of mercy, which includes the decision-making process, is non-justiciable.
In short, immune from review by the courts.
Was the validity of the addendum order non-justiciable?
Najib’s counsels argued that the internal deliberations of the Pardons Board were not open to judicial scrutiny. To do so would offend the doctrine of non-justiciability.
Counsels cited a list of cases, starting with Juraimi bin Husin v. Pardons Board, State of Pahang & Ors [2002] 4 MLJ 529, Superintendent of Prison v. Sim Kie Chon [1986] 1 MLJ 494, Chiow Thiam Guan v. Superintendent of Pudu Prison & The Government of Malaysia and Connected Appeals [1983] 2 MLJ 116, Karpal Singh v. Sultan of Selangor [1988] 1 MLJ 64 and Datuk Seri Anwar bin Ibrahim v. Mohd Khairul Azam bin Abdul Aziz and another appeal [2023] 2 MLJ 545.
The learned High Court judge, Justice Alice Loke, however, distinguished the cases in her judgment. She said as follows:
“In my view, with the exception of Karpal Singh v. Sultan of Selangor these are cases where the prisoners themselves filed for declarations in relation to decisions made in the exercise of the prerogative of mercy.
“Applications were then filed to strike out the suits. In striking out the suits, the courts held that proceedings aimed at questioning the propriety or otherwise of the decisions is not-justiciable and the courts have no jurisdiction to determine the matter.
“The cases can be distinguished …. There, the decisions made in exercise of the prerogative of mercy [were] sought to be challenged. Here, the decision is sought to be enforced instead. Unlike the present case, the courts in those cases were not called upon to determine the validity of a decision vis-a-vis compliance with the constitutional requirements of Art 42.
“Those cases decided that the ultimate decision of the YDPA/Ruler in the clemency process is not open to challenge which is distinctly different from the issue here where its validity depends on whether it was made by adhering to the constitutional provisions in Art 42.
“In addition, I would not, on account of the position taken by the Respondents, equate that to violating the principle of non-justiciability. Since a mandamus is sought to compel the Respondents to execute the terms of the addendum order, the Respondents are obliged to be satisfied as to the validity of the addendum order.
“This court, in turn, is also entitled to scrutinise the addendum order against the procedural provisions in the Federal Constitution before granting a mandamus. The principle of non-justiciability has no application to the factual matrix of this case.
“In the upshot, and for the reasons mentioned, I do not find the addendum order to have been made upon due observance with the procedure in Art 42.”
The word “distinguished” is not unknown to judges and lawyers alike. Distinguishing is a device used to “unfollow” a particular binding precedent.
Law reports, here in Malaysia and in other jurisdictions, provide many examples of the use of the device whenever a judge, sitting alone or in a coram or panel of judges, would not want to be bound by a binding precedent.
The doctrine of binding precedent, known also as the doctrine of stare decisis — Latin for “to stand by/adhere to decided cases”, that is to follow precedent — is a well-entrenched principle that once a legal principle is decided in one case it should be followed in similar future cases.
The doctrine of binding precedent means that, within the hierarchical structure of the courts in a legal system, the decision of a higher court will be binding on a lower court.
So, when judges hear or try cases they will check to see if a similar situation has come before a court previously.
If a precedent (or simply, decision) from a similar situation exists and it was set by a court of equal or higher status to the court deciding the new case, then the judge in the new or present case should follow the legal principle established in the earlier case.
Where the precedent is from a lower court in the hierarchy, the judge in the new case will consider it but may not follow it as the judge is not bound by the decision of the lower court.
Distinguishing is said to be the art of untying the court’s hands from a binding precedent. In today’s terms, it can be said to be an art of unfollowing a binding precedent.
Was the learned High Court judge correct in distinguishing the cases cited by Najib’s counsels?
I am inclined to say she was. But like I said in “High Court decision on addendum order is sufficiently supported by authorities but nonetheless stands corrected on appeal”, I stand corrected.
So does the learned judge, but on appeal.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
