LETTER | Unchaining Najib - for better or worse?

LETTER | On Feb 2, 2024, the Federal Territories Pardons Board of Malaysia announced the granting of a partial pardon to former prime minister Najib Abdul Razak. 

His original 12-year jail term has been reduced to six and his RM210 million fine reduced to RM50 million, which equates to a reduction of 50 percent in jail time and approximately 76 percent in fine.

Consequently, the whole nation has now erupted in sheer outrage. But nobody knows exactly who made this decision to pardon Najib.

There has been considerable speculation and concern directed towards various potential decision-makers, including the 16th Yang di-Pertuan Agong, the prime minister, the federal government, the federal territories minister, and the political parties that constitute the unity government.

So, who made the decision?

The answer is - we don’t know - because the law is not clear, and we will never know because nobody is going to tell us.

Let’s start with the basics. According to the Federal Constitution, the Pardons Board for federal offences will be constituted by the attorney-general, federal territories minister and not more than three other members of society [Articles 42(5) and 42(11)]. They are appointed by the king [Article 42(5)].

After reviewing a pardon application, the Pardons Board convenes a meeting to present its “advice” to the Agong. At this point, the critical question arises: Is the king bound to follow the Pardons Board’s recommendation, or does he have the autonomy to decide - based on his own discretion - whether to accept or reject this advice? Here is where the law is not clear.

First, the Federal Constitution stipulates that the king in performing his constitutional function which requires him to “act pursuant to an advice”, must follow such advice [Article 40(1)(A)]. A harmonious reading of the pardoning powers clause, particularly, Articles 42(1) and 42(9) suggests that the Agong is required to exercise his pardoning powers based on the advice of the Pardons Board.

This interpretation is grounded in the delineation made under Article 40, which categorises the king’s functions into two: (i) those he may execute at his discretion and (ii) those he must undertake in accordance with the advice provided by the relevant entity [See: Federal Court - Anwar Ibrahim v Perdana Menteri Malaysia & Anor [2010] 3 MLJ 174].

Therefore, under this framework, the responsibility for Najib’s partial pardon ultimately lies with the Pardons Board, which notably includes a minister from the current government.

Second, a series of decisions by apex courts have presented a contrasting viewpoint. The Supreme Court in Superintendent Of Pudu Prison & Ors v Sim Kie Chon [1986] 1 MLJ 494 opined that the “Pardons Board is only an advisory body and makes no decision whatsoever as such but only tenders’ advice to (the king) for the purpose of the exercise of his powers of clemency under Article 42” [See also: Juraimi bin Husin v Pardons Board, State of Pahang (2002) 4 MLJ 529].

This interpretation is grounded on the fact that the pardoning power which is a “prerogative power of mercy” [See: Sim Kie Chon v Superintendent of Pudu Prison & Ors (1985) 2 MLJ 385, Supreme Court] is exclusively vested in the king and not the Pardons Board [See: Letitia Bosman v Public Prosecutor and other appeals (No 1) (2020) 5 MLJ 277, Federal Court]. 

Remarkably, this power has virtually no limits, granting the king a wide latitude in decision-making, from reducing sentences and commuting death penalties to issuing full pardons or even denying pardon applications.

A notable instance is the 2018 pardoning of the current Prime Minister Anwar Ibrahim, who received not only a full pardon but was also treated as if he had never committed any crime [See: Datuk Seri Anwar bin Ibrahim v Mohd Khairul Azam bin Abdul Aziz and another appeal (2023) 2 MLJ 545, Court of Appeal].

According to these rulings, despite the advisory process, the king is considered the ultimate decision-maker in all pardon applications, irrespective of his direct involvement in the decision-making process.

Based on both past and recent precedents, the second viewpoint appears to be the accepted position. However, these cases may have overlooked Article 40(1)(A) of the Federal Constitution, which was introduced in 1994 through a constitutional amendment.

Article 40(1)(A) explicitly states that any constitutional function of the king, which necessitates accompanying advice, must adhere to such advice. This provision effectively constrains the king’s pardoning power, making it subject to the recommendations of the pardoning board.

Whether this is the correct interpretation or not does not change the fact that we are still left lingering in the dark, shrouded in speculations.

Without public disclosure of the details from the Pardons Board meeting on Jan 29, 2024, which resulted in the decision to partially pardon Najib, the specifics of who was directly involved in determining Najib’s pardon and who supported or opposed it will remain unknown.

Can you seek the court’s help to disclose the details of the Pardons Board meeting?

No, you can’t. The pardoning process is not justiciable and is considered a “highly private process” [See: Court of Appeal - Datuk Seri Anwar bin Ibrahim (2023)].

Can you challenge this decision in court?

No, you can’t either. The decision to pardon is a royal prerogative of mercy that is not amenable to judicial review. As clarified by Supreme Court in Public Prosecutor v Soon Seng Sia Heng [1979] 2 MLJ 170, decisions made by the king under the pardoning powers take into account factors beyond what courts can legally consider, focusing on public policy; such decisions are exclusively the domain of the executive. There is an explanation for this.

When Najib’s final appeal to the Federal Court was dismissed and the sentences were affirmed, his legal avenues were deemed to have concluded. The pardoning process, being a prerogative of mercy, is not governed by legal rights, as it begins where legal rights end.

Additionally, from a policy standpoint, if pardoning decisions can be challenged in court it would be akin to “reactivating a concluded trial” and will lead to “an endless reventilation of every convict’s case” [See: Sim Kie Chon (1986)].

So, what’s next Malaysia?

The rising anger and disappointment in many Malaysians right now are understandable. Many people have worked very hard for years, risking their lives and jobs in the process, to bring down Najib’s government in 2018 and bring him to justice for the 1MDB and SRC scandals.

However, arguing over who made the decision to partially pardon Najib won’t change the fact that he has been granted a partial pardon, much to many’s dissatisfaction.

It is important to understand that Najib’s pardoning is likely to be one of the many political trade-offs/compromises that are highly unavoidable.

For starters, despite his involvement in corruption scandals, he retains significant popularity and influence within his party. Furthermore, following the 2022 general election, no party or coalition secured a clear majority to form a government.

Faced with a choice between cooperating with a corrupt faction or an egregiously ineffective extremist party, Pakatan Harapan’s decision to engage with the former, seen as potentially more amendable to reform, in a unity government framework appears as a pragmatic choice amidst the country’s critical economic challenges.

Under such a situation, it makes it difficult to direct full criticism or blame on Anwar and the Harapan coalition, which has been vocal about its commitment to anti-corruption and reforms.

Is this political trade-off worth it?

It depends on the government’s commitment to implementing promised reforms. Under Anwar’s leadership, the government has launched several significant reforms. These include the abolishment of the mandatory death penalty, the enactment of the Public Finance and Fiscal Responsibility Act to enhance transparency, and accountability of public finances, and the streamlining of data collection through Padu to improve governmental efficiency.

Yet, numerous critical reforms remain unfulfilled including (i) the separation of the attorney-general’s and public prosecutor’s offices, (ii) placing the MACC under the purview of Parliament, (iii) enacting the Political Financing Act, Government Procurement Act, Freedom of Information Act, and Ombudsman Malaysia Act to improve governance, accountability, and transparency, and (iv) proper re-delineation of electoral boundaries in 2026 to promote fairer democracy.

These structural and institutional changes are crucial to prevent the recurrence of situations like Najib’s, ensuring the government operates with greater efficiency, transparency, and accountability, and that the public prosecutor and MACC function independently, without fear or favour.

For too long, Malaysia’s governance has been structured in a manner to benefit only the powerful, the corrupt, and the elites. This selfish approach has negatively impacted our economy, healthcare, education, and other vital sectors. It has made the country a breeding ground for corruption and abuse of power. At the end of the day, the people are the ones who will suffer.

Here is where, I think, if the release of Najib is a necessary sacrifice to pave the way for meaningful reforms, and for a better Malaysia, then it may be worth considering.

For the greater good? After all, it may be better to let one man go, than to allow the whole nation to plunge further into a crisis. As Malaysians, moving forward, the focus should be on pressuring the government to implement the promised structural and institutional reforms.

Nevertheless, I still worry that this political trade-off has sent a message that may alter the moral compass and attitudes of the people.

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