KUALA LUMPUR – The Yang di-Pertuan Agong’s constitutional power to grant a pardon is not discretionary and is exercised on advice, Malaysian Bar president Karen Cheah has said.
The Bar’s view, in a press statement, is in contrast with that of government figures who have said the king had sole discretion on the recent decision to reduce convicted former prime minister Datuk Seri Najib Razak’s sentence.
Cheah said that the Agong’s exercise of power, which is mandated under the federal constitution, must be distinguished from “discretion” as articulated under Article 40 of the constitution.
“Where there is a ‘power’, the Agong acts with advice, on advice, and ‘shall accept in accordance with such advice’,” Cheah said, from Article 40(1A).
“In light of (this article), the Malaysian Bar takes the position that the granting of a pardon is not a discretionary power and must be exercised on advice.”
She then highlighted Article 40(2), which states the specific roles where the king may use his discretion, which include the appointment of a prime minister, dissolution of Parliament and convening a meeting of the Conference of Rulers.
“Pardons do not form part of the Agong’s ‘discretionary’ powers,” Cheah said.
She noted the Bar’s “deep disappointment” with the Pardons Board’s decision to reduce Najib’s sentence and fine.
She also called for reforms to the board’s composition and processes to prevent the influence of the executive and ensure its independence.
“It is necessary to reduce, if not completely eliminate, the role of the government in the Pardons Board. To this end, an amendment is required to remove the influence of the Attorney-General and Minister of Federal Territories or Chief Ministers of States in the Pardons Board, and to appoint independent persons to the Pardons Board to ensure inclusivity in terms of expressions from the public.”
Other reforms would be to introduce safeguards that ensure such power is exercised sparingly, and within clear boundaries of established circumstances or categories.
This would include showing remorse and repentance by the prisoner, Cheah said.
“To date, after having served one year and five months in prison, Najib has yet to show remorse, any form of repentance, nor apology for committing the offences of criminal breach of trust, abuse of power and money laundering, for which he was convicted.”
On February 2, the Pardons Board in a statement through the legal affairs unit of the Prime Minister’s Department announced a reduction of Najib’s prison sentence from 12 years to six, and RM210 million fine to RM50 million.
His conviction and original penalties were imposed by the high court in July 2020 for corruption involving RM42 million of SRC International Sdn Bhd funds.
Najib began serving his sentence on August 23, 2022 when he lost his final appeal at the Federal Court.
Under his reduced sentence, Najib will be released on August 23, 2028 if he pays the RM50 million fine, but will remain incarcerated for a year longer, until August 23, 2029, if he fails to do so. However, he is also eligible to apply for parole next year, after serving half of his reduced sentence. – February 7, 2024
