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THE MALAYSIAN Bar refers to the petition for a royal pardon filed on September 2 by former prime minister Datuk Seri Najib Razak for his conviction of misappropriating RM42 million from SRC International Sdn Bhd funds – for which the Federal Court on August 23 had upheld his sentence of 12 years’ imprisonment and a RM210 million fine.
There is much misinformation out there relating to a royal pardon in Malaysia, and the Malaysian Bar recognises that this is of public interest under the current climate.
The power to grant pardons by the Yang di-Pertuan Agong is encapsulated in Article 42(1) of the federal constitution, which stipulates that “the Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the ruler or Yang di-Pertua Negeri of a state has power to grant pardons, reprieves and respites in respect of all other offences committed in his state”.
All individuals found guilty and sentenced, are entitled to seek a royal pardon, but this is sought after all legal remedies have been exhausted.
The composition of the Pardons Board consists of the attorney-general (or their representative), the chief minister of the state, and not more than three other members appointed by the ruler or Yang di-Pertua Negeri (Article 42(5) of the federal constitution). Further, Article 42(9) stipulates that before tendering its advice on any matter, a Pardons Board shall consider “any written opinion which the attorney-general may have delivered” on the case.
However, the Pardons Board may only offer advice, and such advice is not binding on the Agong, ruler, or Yang di-Pertua Negeri – this was settled in the high court decision in Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64.
Simply put, the function of the Pardons Board is merely advisory in nature and the decision to pardon or otherwise is not subject to judicial review, as demonstrated in the case of Juraimi bin Husin v Board of Pardons, State of Pahang & Ors [2002] 4 MLJ 529.
While the former prime minister is well entitled to seek a royal pardon, it is the Malaysian Bar’s view that he is not deserving of such clemency from the king at this juncture. The king has stated that the power to punish and pardon should not be made arbitrarily as the law should be implemented consistently and fairly.
The reputation of our country has become synonymous with corruption ever since the revelations of the 1Malaysia Development Bhd scandal broke in 2015. In the words of the Court of Appeal judgement which has been used time and time again, the scandal has caused a “national embarrassment” to the nation.
The Federal Court has now decided that there was corruption and abuse of power involved – and this decision and the consequences thereof must be respected. Corruption is a societal cancer that siphons off resources from the intended purposes of benefitting the rakyat; instead, these have gone to line the pockets of those in the upper echelons of politics and society for personal gains, stifling the growth and development of our country as a result. Corruption also serves to truncate human rights as it gives certain individuals advantage over others, and fundamentally undermines the fairness of how institutions operate.
The Malaysian Bar notes that while there have been royal pardons for public figures in the past, such as in the cases of Datuk Seri Anwar Ibrahim, Datuk Mokhtar Hashim, and Datuk Seri Harun Idris, all of them had served a substantial part of their imprisonment before they were released on account of a royal pardon. In this case, the former prime minister has only been in prison for less than a month and as such, he should first serve a better portion of his sentence.
We should never overlook the fact that the Federal Court’s decision on August 23 has restored the public’s faith in our judiciary and the rule of law. Throughout the entire saga, it is pertinent to note that the former prime minister has yet to demonstrate remorse for his actions.
Notwithstanding the multiple occasions where had portrayed himself as a victim throughout the proceedings at the Federal Court, whether through challenges on legal representation or seeking the recusal of the chief justice, the Malaysian Bar takes the view that bestowing a royal pardon on him would directly go against the apex court’s decision and provide a form of impunity. Again, simply put, this would make a mockery of the conviction and sentence meted out by an independent judiciary.
It is the Malaysian Bar’s position that a full pardon so early on would be perceived as premature since the former prime minister is still facing numerous charges of money laundering and criminal breaches of trust. A dangerous precedent would be set if a royal pardon is in fact granted in this case, as it will appear that those who held powerful executive positions in the past and are still facing similar criminal charges before the courts are above the law or beyond reproach. The spirit of equality before the law and the non-discriminatory principle under Article 8 of the federal constitution must be given its true meaning.
The Malaysian Bar stands by the view that respect for the judiciary’s decision must be accorded, and the granting of a royal pardon to a convict who has brought shame to our nation would only leave a deleterious effect on our administration of justice, both domestically and internationally. – The Vibes, September 13, 2022
Karen Cheah Yee Lynn is president of the Malaysian Bar