LETTER | It's a remission of sentence, Najib still guilty

LETTER | Article 42 of the Federal Constitution does not only provide the monarchs - that is, the Yang di-Pertuan Agong (for offences committed in the federal territories) and the ruler of a state (for offences committed in the state) the power to grant pardons, but also reprieves and respites in respect of all offences committed in the federal territories and state respectively.

Even so, the power to grant pardons, reprieves, and respites is without prejudice to any provision of federal law relating to remission of sentences for good conduct or special services, and any power conferred by federal or state law to remit, suspend or commute sentences.

In short, the power under Article 42 is the power to grant pardons, reprieves, and respites without prejudice to the power to remit, suspend, or commute sentences conferred by federal or state law.

One such federal law is the Criminal Procedure Code. Section 300 empowers the respective monarch to suspend or remit the whole or any part of the punishment to which a person has been sentenced for an offence while Section 301 provides for the power to commute the sentence of death, imprisonment, and fine.

When different words are used in a statute they refer to different things and this is particularly so where the different words are used repeatedly. (See the judgment of Chief Justice Thomson in Lee Lee Cheng v Seow Peng Kwang [1960])

Accordingly, a “pardon” is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.

A pardon affects both the punishment prescribed for the offence and the guilt of the offender; in other words, a full pardon blots out the guilt itself. (See the Indian case of Khagendranath v Umesh Chandra Nath AIR 1958 Assam 183)

“Reprieve” means the suspension for a time of the execution of a sentence in a criminal court. For example, a pregnant woman who is convicted of an offence may be granted a reprieve of her sentence.

“Respite” means awarding a lesser sentence instead of the penalty prescribed in view of the fact that the accused had no previous convictions.

“Suspension” means the abeyance of the sentence at the pleasure of the person who is authorised to suspend the sentence and, if no conditions are imposed, the authorities have the right to have the accused person re-arrested and direct that he should undergo the rest of the sentence without assigning any reason. (See the Indian case of Jagdish Prasad v RAIR 1949 All 626)

“Remission” is the reduction of the amount of a sentence without changing its character. In the case of remission, neither the guilt of the offender nor the sentence of the court are affected. By remission, the person concerned does not suffer incarceration for the entire period of the sentence but is relieved from serving out a part of it. (See the Indian case of Khagendranath v Umesh Chandra Nath AIR 1958 Assam 183)

Importantly, a remission of sentence does not mean acquittal.

“Commute” means to replace one punishment with another that is less severe. For each example, a death sentence is commuted to life imprisonment.

In the case of former prime minister Najib Abdul Razak, the official statement of the Pardons Board of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya says that Najib’s sentence is “reduced” from 12 years of imprisonment to six and from RM210 million of fine to RM50 million.

It’s a remission of his sentence. The guilt of Najib is not affected. It does not mean acquittal.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.