Of late, there has been a lot of questions as to whether the King, in the exercise of Pardon Powers, can order Najib to spend his remaining term of imprisonment at HOME?
What exactly are the powers of PARDON?
A royal pardon is an official order from a monarch to stop the punishment of a convicted person, but it does not overturn the conviction. A pardon can be granted in the form of an unconditional release, a commutation, or a reduction of punishment.
When it comes to quashing convictions - that is with the jurisdiction of the Courts, and can be done when NEW Evidence arises that makes conviction wrong, or it can be because of new evidence and/or new challenges to existing evidence which results the maintenance of the conviction dangerous - because on evaluation the Courts may find that NOW with the new evidence, etc - prosecution failed to proof GUILT beyond reasonable doubt.
Can the King/Ruler, using pardon powers, order a convict to serve his/her remaining prison term at home(house arrest) - the answer ought to be NO > because the present Federal Constitution or State Constitution does not CLEARLY provide for such an ORDER plus there is no such provision in the Constitution or any law that provides for such a sentence. There is talk that Malaysia may be thinking of enacting a law that provides for HOME DETENTION - so, we have to wait for it.
Pardon Powers are DEFINED by Constitution/Law - the people set the limits of pardon power? The King/Rulers power is LIMITED, not totally limitless.
In Malaysia, does the King/Ruler has the power to act on his/her own? NO - because they must act only as the Pardon Board advises.
(1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.
(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.
So, when the Constitution or Federal Law states that the King/Ruler shall act in accordance to the ADVICE of the Pardons Board - reasonably, the King/Ruler '..shall act in accordance with the advice of the..' of the Pardons Board.
Herein, lies the problem - Article 42(4) is clear that when it comes to Pardon Powers exercisable by the Ruler or Yang di-Pertua Negeri, it is CRYSTAL clear that they must 'be exercised on the advice of a Pardons Board' - this means, with reference to Article 40(1A) - that Ruler or Yang di-Pertua Negeri can only Act as advised by the Pardons Board.
However, there is no similar provision in Art 42(4)(a) with regard the Pardon Powers of the King. Does this mean that the KING can act contrary to the advice of the Pardons Board? On the face of it, the King does not have to act as advised by the Pardons Board - this is FLAW in the Federal Constitution, which must be REMEDIED immediately by a Constitutional amendment to include in Art. 42(4)(a) the words 'be exercised on the advice of a Pardons Board' - for now the King is not bound to act as advised by the Pardons Board.
4) The powers mentioned in this Article—
(a) are, so far as they are exercisable by the Yang di-Pertuan Agong, among functions with respect to which federal law may make provision under Clause (3) of Article 40;
(b) shall, so far as they are exercisable by the Ruler or Yang di-Pertua Negeri of a State, be exercised on the advice of a Pardons Board constituted for that State in accordance with Clause (5).
Art. 42(4)(a) goes on to say '... with respect to which federal law may make provision under Clause (3) of Article 40' - BUT here again is the Problem, as there is now NO FEDERAL LAW that deals with Pardon Powers - THUS, there is a need for Parliament to speedily enact a Federal Law, that will make provisions with regard the Pardon Powers of the King.
Art. 40(3) reads as follows:-
(3) Federal law may make provision for requiring the Yang di-Pertuan Agong to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions other than—
(a) functions exercisable in his discretion;
(b) functions with respect to the exercise of which provision is made in any other Article.
Pardon powers are not 'functions exercisable in his discretion' and thus it falls under Art.40(3)(b) - (b) functions with respect to the exercise of which provision is made in any other Article.
Pardon powers of the King are provided for in 'any other Article' - that is Article 42.
Pardon Powers under Art.42(1) are ' grant pardons, reprieves and respites' - but the problem is that 'pardons' are NOT DEFINED anywhere? And this is a MAJOR PROBLEM.. There must a DEFINITION of Pardons also in the Federal Constitution to make it clear what exactly does grant pardons mean and entail... is it only restricted to SENTENCES, does it extend to convictions which means that King/Rulers can also QUASH convictions, does it mean that the King has powers to stop prosecution and/or trials, or even investigations?
We need CERTAINTY - and that is why we need amendments to the Constitution and/or a PARDON law in Malaysia.
Some have relied on a Prison Regulation - to imply that pardons powers includes not just sentences, but can also include the overruling or quashing of convictions. But, that REGULATION itself, in my opinion, is ULTRA VIRES the Prison Act itself. Remember that Regulations are Minister created, not law passed by Parliament. There was nothing in the Prison Act that talks about pardon powers include conviction.
Regulation 113 Petitions, Prison Regulations 2000
(1) A prisoner may, if he wishes, petition the Yang di-Pertuan Agong or the Ruler or Yang di-Pertua Negeri, as the case may be, on the subject of his conviction or sentence, once as soon as practicable after his conviction and a second such petition shall be allowed when a prisoner has completed three years from the date of conviction, and thereafter such petitions shall be granted at two yearly intervals, unless there are any special circumstances which the Officer-in-Charge may consider should be brought to the notice of the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri, as the case may be.
Power of Minister(not Parliament) to make Regulations in Section 67 -
(1) The Minister may publish in the Gazette such regulations as may be necessary or expedient for the good management and government of prisons, and for carrying our or achieving the objects and purposes of the Act.
The MINISTER Erred when he made the Regulations - when Regulation 113(1) A prisoner may, if he wishes, petition the Yang di-Pertuan Agong or the Ruler or Yang di-Pertua Negeri, as the case may be, on the subject of his conviction... On the subject of conviction, the prisoner can file an application to Court to challenge his/her conviction, the King/Rulers can only be petitions on the subject of SENTENCE only.
To date, I believe, that there is no application to Court yet to declare Regulation 113, in respect that a Prisoner's right to petition King/Rulers on the subject of his convictions is ULTRA VIRES the Prison Act 1995 and/or Constitution. This application is needed fast, as it misleads prisoners that the can petition the King/Rulers with regard their CONVICTION.
The Court of Appeal in DATUK SERI ANWAR IBRAHIM v. MOHD KHAIRUL AZAM ABDUL AZIZ & ANOTHER APPEAL, COURT OF APPEAL, PUTRAJAYA [2023] CLJ (JT1) ERRED when they relied on this Reg. 113 of the Prisons Regulations 2000, as a basis to say that the powers of mercy and clemency of the YDPA are extensive and encompasses both conviction and sentence. They should have considered first whether this Regulation 113 was ultra vires the parent Prison Act itself - when it tries to extend pardon powers includes quashing convictions.
However, the Court of Appeal was right when it said that 'there is nothing in art. 42 of the Federal Constitution which curtails or limits the powers of the YDPA to grant the Pardon to the first appellant. If the intention was to limit it to sentence only, it should have been clearly stated in the Federal Constitution. It is not for the court to add any words. We find that the plain words of the relevant article of the Federal Constitution do not exclude the granting of a pardon in respect of a conviction.' - EXACTLY my point earlier. Parliament must act fast, and amend the Constitution to make clear that pardon powers does not include quashing convictions. That must be left to the Courts, and only the Courts.[22] Our perusal of art. 42 of the Federal Constitution showed that the powers of mercy and clemency of the YDPA are extensive and encompasses both conviction and sentence.
[23] Under reg. 113 of the Prisons Regulations 2000, a person who has been convicted has the right to petition the YDPA for a pardon against conviction and sentence. Further, art. 48(1) and art. 25(1)(c) of the Federal Constitution refer to a "free pardon".
There are other points on how the Court of Appeal ERRED - but that maybe for a different post...
Najib's alleged Royal Pardon - Home Detention for remaining term of imprisonment?
If the previous King had ordered, when exercising Pardon powers, home arrest - I am sure that His Majesty would have come out and said so...
If the King had ordered Home Detention - the Prime Minister and current government are at RISK of committing a Sedition Offense...interesting.
Anwar still claims to have no knowledge of any such ORDER - and he met the previous King several times..“I have met the (previous) Agong several times and never was the addendum issue raised,” he said.
In
Parliament today, the prime minister maintained that the addendum had
not been an agenda in the last Pardon Board meeting that he attended
after two Opposition MPs requested an explanation.
His Minister and the Attorney General were part of the Pardons Board - it is odd that Anwar does not know. A definite answer from the Prime Minister would have been good.
What is disconcerting is that he is talking about another Pardon Petition for Najib...
“But because the matter has been repeatedly mentioned I have raised this for consideration with the current Agong so when the time is right it can be referred to the Pardon’s Board meeting that the current Agong would chair,” the prime minister added.Does Anwar not sense that Malaysians were rather UNHAPPY with the 1st Pardon, which slashed the prison term to half, and reduced the fine to more than half
So, PARLIAMENT must speedily amend the Federal Constitution, and also cause the enactment of the PARDONS ACT...
These are my opinions only...
See earlier posts:-
PARDON - Discrimination, only for some? Should Shafee's disclosure that could invalidate Najib's pardon be acted on? A law on PARDONS?
Najib's Pardon - King, not Pardon Board have the power - As the King did not tell us when he was King, is there any consequences?
Pardon reforms needed. The King's pardon - the role of the PM and government of the day? Victim's rights? BERSIH Protest? Prisoner Najib posting on FB?
More about Najib's Pardon - Is the Pardons Board under the Cabinet? What is FULL PARDON? AG must explain and clarify confusions ...?
Najib's Pardon - King, not Pardon Board have the power - As the King did not tell us when he was King, is there any consequences?
Najib's PARDON now may have serious impact to Malaysia, Malaysian law enforcement, prosecution and courts?
Ex-PM Najib sentence of 72 years imprisonment, beats ex-DPM Anwar's 1999 corruption conviction and sentence of 24 years?
Anwar Ibrahim's pardon never set aside his conviction - Federal Court.
Of Najib's Pardon, Pardon REFORMS? Anwar pardoned weeks before his sentence ended, when should one be pardoned?
Anwar Ibrahim - his pardon may be not valid? High Court will decide ...
Anwar, time to investigate, prosecute and fair trial for all false witnesses, bad prosecutors and judges?...travesty or miscarriage of justice?
Anwar Ibrahim - Will this be the 1st 'abuse of power' by new government?
Anwar's Pardon - Meaning, Validity and Matters concerning Attorney General?
PM Anwar says he discussed Najib’s pardon with King during Johor visit, cites ‘sub judice’ as case still in court
KUALA LUMPUR, Dec 10 — Prime Minister Datuk Seri Anwar Ibrahim said today Datuk Seri Mohd Najib Razak’s pardon was among the issues that were discussed with His Majesty Sultan Ibrahim, King of Malaysia, during his visit to Johor yesterday.
Anwar revealed the matter during Question Time in the Dewan Rakyat this morning, where he was asked again about the supposed addendum of a decree from the previous Agong, Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, to let Najib serve his remaining jail sentence at home.
“I have met the (previous) Agong several times and never was the addendum issue raised,” he said.
“But because the matter has been repeatedly mentioned I have raised this for consideration with the current Agong so when the time is right it can be referred to the Pardon’s Board meeting that the current Agong would chair,” the prime minister added.
Najib lost his bid to compel the government to produce an addendum order reportedly issued by Al-Sultan Abdullah, after the High Court ruled in July that affidavits supporting Najib’s claim were inadmissible as evidence because they were hearsay.
Najib, 71, is currently serving his sentence at Kajang prison in Selangor and has since appealed the decision.
The Court of Appeal is set to hear the former prime minister’s appeal on January 6.
Anwar has not confirmed or denied the existence of the purported addendum.
In Parliament today, the prime minister maintained that the addendum had not been an agenda in the last Pardon Board meeting that he attended after two Opposition MPs requested an explanation.
Kota Baru MP (Perikatan Nasional) Datuk Seri Takiyuddin Hassan accused Anwar of evading the issue, despite repeated calls for the prime minister to confirm or deny the existence of the royal addendum.
The second MP, Ahmad Fadhli Shaari of Pasir Mar (PN), said the affidavits filed by several Umno leaders, claiming they had sighted the addendum, indicate that the decree allowing Najib to serve his remaining jail sentence at home is true.
Anwar brushed off the allegations, saying he is bound by law not to reveal details from the Pardon Board’s meeting.
The Tambun MP also cited Najib’s ongoing appeal as a reason, stating that any disclosure would be sub judice. - Malay Mail, 10/12/2024
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