To my friends who are distraught after reading Dennis Ignatius’s article “Is Anwar colluding with Umno to set Najib free?”

I say, “Oh ye of little faith, why are you so afraid?”

Must Prime Minister Anwar Ibrahim be called to calm the seas and winds, each time it starts to rain?  If he does not, does it mean he is colluding with the heavens to stir up the storms?

Obviously not! However, this is the premise of the article.

The hasty generalisation from silence 

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The premise for the charge of collusion is found in only one sentence in the entire article.

Anwar has kept silent in the wake of the attacks on the judiciary: “The judiciary,  a vital national institution, one of the pillars of our democracy, is under attack and the  Prime Minister remains a mute witness.” 

This is a hasty generalisation fallacy. A conclusion that is reached, that is not logically justified by sufficient or unbiased evidence.

There is a legitimate reason why the prime minister has not made any comments. By virtue of Article 42(11) of the Federal Constitution, the prime minister, in the absence of the federal territories minister, is a member of the Pardons Board.

The prime minister’s participation in the Pardons Board in the absence of a federal territories minister has been held by the Federal Court in the case of Superintendent of Pudu  Prison v Sim Kie Chon [1986] 1 MLJ 494 at 498 to be consistent with Article 42(11).

The rules of procedural fairness require that those involved in the deliberations of the convicted former prime minister Najib Abdul Razak’s pardon petition should not be biased or prejudiced in a way that precludes fair and genuine consideration from being given to the petition.

An expression of views prior to the deliberations may give rise to an allegation of pre-determination of the issues and cause the prime minister to be disqualified as a  member of the Pardons Board on the ground of being biased.

Hence, there is a valid reason for the prime minister’s silence during this time. Any imputation of wrongful conduct is thus unfair.

Faulty generalisation ignoring the Royal Prerogative

Another faulty generalisation in the article is the assumption that the power of pardon lies in Anwar or that the Yang di-Pertuan Agong (YDPA) will follow Anwar’s dictates in accordance with the Pardons Board’s advice. This assumption is invalid.

The highest courts in Malaysia have held, in a long line of cases, that the Pardons  Board as an advisory body, that it makes no decision whatsoever but only tenders advice to the YDPA for the purpose of the YDPA’s exercise of the power of clemency.

The YDPA need not follow the advice of the Pardons Board. The court in the case of Karpal Singh v Sultan  of Selangor [1988] 1 MLJ 64 at 67 said: “Clause (9) of Article 42 cited by Karpal Singh does not make it mandatory on the Ruler to act on the advice [of the Pardons Board].”

This principle has been followed and confirmed by Supreme Court and Federal Court cases such as Superintendent of Pudu Prison v Sim Kie Chon [1986] 1 MLJ 494  at 497; Juraimi bin Husin v Pardon Boards, State of Pahang [2002] 4 MLJ 529;  and recently the Court of Appeal in Datuk Seri Anwar Ibrahim v Mohd Khairul  Azam bin Abdul Aziz [2023] 2 MLJ 545.

By ignoring the fact that the power of clemency under Article 42 of the Federal  Constitution is vested solely in the YDPA as the royal prerogative of mercy, the veracity of the article has to be considered carefully.

The grant of mercy is not an appeal

The article’s essence is that a pardon will undermine the judiciary. This is not correct.  A pardon does not mean the YDPA is giving effect to one dissenting judgment over the other 13 judgments delivered in the High Court and appellate courts.

The pardon process is not an appeal, the conviction stands. The petition is to consider the grant of mercy. 

In Public Prosecutor v Soon Seng Sia Heng [1979] 2 MLJ 170, the Federal Court said: “When considering whether to confirm, commute, remit or pardon, His Majesty does not sit as a court, is entitled to take into consideration matters which the courts, bound by the law of evidence, cannot take into account and decide each case on the grounds of public policy.” 

As the Pardons Board and the YDPA are considering the grant of mercy and are not an appeal court, assertions of innocence or mistakes by the appellate courts are not normally relevant considerations.

The Pardons Board would, on the grounds of public policy, consider the national and public interest, the nature and gravity of the offence, the prisoner’s previous public service and international relations where relevant.

The Pardons Board would have to consider the following:

• The fact that Najib has several ongoing criminal trials and appeals;

• The gravity of the offence and the magnitude of the amount involved, the effect  on the people, the government’s losses and the burden of repaying the debts which have to be borne for many years to come;

• That he has not shown remorse and has not. on his own accord. made monetary  compensation nor assisted in the recovery of the stolen assets;

• That he had abused his position as prime minister to stop the investigations and to prevent being charged by changing the attorney-general, the Members of Parliament, PAC and the MACC personnel who were investigating the 1MDB scandal and other cases of corruption against him;

• That there were death threats made to the Chief Justice; the attacks on the  judge who convicted him, the attacks on the judiciary and the undermining of the rule of law; and

• That he is a national embarrassment.

More importantly, the Pardons Board has to consider Malaysia’s status in international relations:

• The fact that the accomplices of Najib or Jho Low are serving prison terms in various foreign jurisdictions;

• That these foreign countries and many others have provided assistance in the  investigation and recovery of the stolen funds and assets, punished their own  nationals and expect a proportionately severe punishment to be meted out to  the principal offenders in our own country;

• Malaysia’s standing in the global system to combat and punish offenders of anti-money laundering offences will also be critical in its evaluation of the petition. Malaysia is a signatory to the United Nations Convention against  Corruption, a member of the International Financial Action Task Force (FATF),  Asia/Pacific Group on Money Laundering, Egmont Group of Financial  Intelligence Units and other international organisations whose obligations  include implementation of legal, regulatory and operational measures to  combat anti-money laundering offences, corruption and terrorist financing and  to maintain standards including the punishment of offenders; and

• The effect of a pardon on both foreign and local investors and the impact on their perception of corruption in Malaysia and Malaysia’s international standing in the globalised world as a democracy which practises the rule of law. 

Consideration ought also to be given that under the anti-money laundering international systems, foreign countries are empowered to prosecute corrupt politicians and recover illicit monies where the home country is unwilling or unable to adequately punish such offenders.

It would be a greater national embarrassment if Malaysia is to pardon Najib for him to be charged, tried and imprisoned by foreign countries subsequently. 

The Pardons Board and the YDPA, upon taking into consideration such national and public interest and international obligations, would not be able to make capricious and arbitrary decisions on Najib’s petition without the country incurring severe repercussions.

In conclusion 

Dennis Ignatius’ article is a good wake-up call on the dangers of granting Najib a  pardon. However, one needs to take a step back to consider the validity of the charges made against Anwar and accept the alarmist nature of his piece.

We are all fully aware of the forces that are continuously pushing back to regain political power. We are afraid they will return. When we see their moves, we quickly come to our wits’ end. We see nothing but giant breaking waves and stormy skies.

We want the prime minister to assure us that he will deal with these moves properly and quickly. However, some faith and confidence are required. We need to understand that the rule of law requires the due process to take its course. 

In doing so, it does not mean that Anwar and Pakatan Harapan have abandoned the policies and beliefs they have fought for so long. Sometimes the silence is the calm before the storm. – WILLIAM LEONG JEE KEEN is the Member of Parliament for Selayang.