AGONG CAN RIDE ROUGHSHOD OVER EVERYONE & PARDON NAJIB NOT ONLY FOR CURRENT CONVICTION BUT FOR ALL FUTURE CHARGES? – WHAT A ROYAL LEGACY TO LEAVE THE COUNTRY AS THE KING, WHO HAILS FROM NAJIB’S HOME STATE, NEARS THE END OF HIS 5-YEAR TERM!

This article will highlight the constitutional debate surrounding Article 42 of the Federal Constitution, which provides for 14 Pardons Boards in our 13 states and the Federal Territories, and prescribes their composition, jurisdiction and procedure.

Composition: Under Article 42 Clauses (5) and (11), the Board for the Federal Territories is chaired by the YDPA. Other members are the Attorney General (AG) or his representative; the minister responsible for the Federal Territories; and three other members appointed by the YDPA. MPs and members of the state legislative assemblies are not eligible for appointment to the Board.

Presumably, this was to ensure political impartiality. Even the prime minister is not a member of the Board. However, he is entitled to sit if he is the minister responsible for the Federal Territories, as in Supt of Pudu Prisons v Sim Kie Chon (1986).

Jurisdiction: The YDPA, Sultans and governors are empowered to grant a pardon in respect of all offences tried by court martial, civil courts and syariah courts in their respective territories. No criminal offence is outside their jurisdiction. However, judgments relating to civil wrongs are outside their power of pardon.

Pardon Board’s procedures: The FT Board is convened in the presence of the YDPA, who is required to chair it. The Constitution requires the Board to consider any written opinion that the AG may have delivered. The Board is free to obtain and examine court documents and analyse the contents of the petition and any mitigating factors.

However, it is not required to give the petitioner a hearing. Its deliberations are secret.

The Board then tenders its “advice” to the YDPA.

Procedure for petitioners: The procedure for this is not in the Constitution. Federal laws like the Criminal Procedure Code and Prison Rules provide guidance on who is eligible to apply for a pardon and after what time limit. These laws are subordinate to the Constitution and cannot override the constitutional powers of the various Boards to consider any petition at any time.

Any convict can file a petition “as soon as is practicable”. However, it is not sufficient to submit the petition for pardon to Istana Negara. The petition should be filed with the Pardons Board so that the procedures of the Pardons Board are triggered by the AG’s Chambers. The petition should be accompanied by all necessary documents.

Besides the convict, his family, lawyer and even the prison authorities can also petition on his behalf once the detention period has exceeded statutory limits.

Is the YDPA bound by advice? This is a contentious issue because there is some ambiguity in the law. One view is that in our system of constitutional monarchy, Articles 40(1) and 40(1A) require that the monarch must act on advice except in those discretionary areas (explicitly) mentioned in Article 40(2) and elsewhere. This view is bolstered by the following factors.

> Article 40(1A) mandates that “where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, (he) shall accept and act in accordance with such advice”.

> A scrutiny of Article 42 indicates that the Board’s function is not merely consultative. Under Articles 42(9), 42(12)(a) and 42(12)(c), it tenders “advice”.

However, a second view – supported by a long line of judicial decisions that are binding on us – is that in the exercise of the power of pardon, the YDPA is not bound by the Board’s advice and acts at his own discretion.

The power of pardon is unreviewable in a court of law. This is the view in Chow Thiam Guan v Supt Pudu Prisons (1983), Sim Kie Chon (1985), Karpal Singh v Sultan of Selangor (1988), Juraimi Husin v Pardons Board (2002), and Datuk Seri Anwar v Mohd Khairul Azam (2023).

Effect of a pardon: Much depends on the type of clemency bestowed and whether it was about the conviction or the sentence. Articles 42(1) and (2) and 48(1)(e) mention the following types of mercies: free pardon, reprieve, respite, suspension, remission and commutation.

A “free” or “full pardon” wipes the conviction off the slate. The convict is released from all the penalties, legal disabilities and disqualifications.

Reprieve or respite or suspension is a temporary postponement of the sentence. Remission or commutation is a reduction of the sentence. Thus, the death penalty can be reduced to life imprisonment (Datuk Mokhtar Hashim’s case, 1982). The period of imprisonment can be reduced (Datuk Harun Idris’ case in the 1970s). The fine can be lowered. Alternatively, the prison sentence can be lifted but the fine retained.

It is up to the Board to recommend and finally for the YDPA to choose between full pardon and the other acts of clemency.

Can the YDPA pardon in respect of offences not yet tried? Take the Najib case as an example. Besides the conviction in one case, the former PM is facing other criminal cases. Can the YDPA pardon him in advance for all these criminal charges even before the conviction is arrived at?

In the United States, it is well known that the President has power to show clemency towards those not yet charged and not yet convicted! For example, President Ford pardoned Richard Nixon in advance of any charges.

This has never been done in Malaysia, and is possibly unconstitutional under Article 42(1), which envisages the Board deliberating on offences for which convictions were already obtained. Further, the power to institute future proceedings or withdraw existing charges for an offence belongs to the AG under Article 145(3) and not to the YDPA, Sultans or governors. A pardon cannot be transformed into an absolute immunity against future prosecutions.

To sum up, although Article 42 on the power of clemency is a lengthy 800-word provision, the courts have held that the power of pardon is a royal discretion that is non-reviewable in the courts.

It is therefore up to the YDPA’s wisdom to balance a plethora of considerations, among them that the former PM faces a number of other criminal cases in the courts.

In most cases of pardon, the convict’s conduct, his remorse and willingness to undo the wrong and make amends are relevant considerations.

Another factor is the pressure of partisan politics and the influence of paid cybertroopers clamouring for or against a pardon.

The grant of a pardon may have legal, political, and international implications on foreign investments and on Malaysia’s reputation as a trading partner.

The royal institution itself may be impacted, and we pray that as the present YDPA’s eventful tenure reaches its fifth year, his distinguished legacy will be preserved and the Almighty will guide him to make the right decision.  WRITER – SHAD SALEEM FARUQI (The author is holder of the Tunku Abdul Rahman Chair at Universiti Malaya)

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