Friday, September 16, 2022

A Royal Pardon for Najib Now Would Make a Mockery of the Rule of Law and Administration of Justice


Press Release

A Royal Pardon for Najib Now Would Make a
Mockery of the Rule of Law and Administration of Justice

The Malaysian Bar refers to the petition for a royal pardon filed on 2 September 2022 by former Prime Minister, Dato’ Sri Najib Razak1 (“former prime minister”) for his conviction of misappropriating RM42 million from SRC International funds — for which the Federal Court on 23 August 2022 upheld his sentence of 12 years’ imprisonment and a RM210 million fine.

There is much misinformation out there relating to a royal pardon in Malaysia, and the Malaysian Bar recognises that this is of public interest under the current climate.

The power to grant pardons by His Majesty, the Yang di-Pertuan Agong, is encapsulated in Article 42(1) of the Federal Constitution which stipulates that “The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State”.  All individuals found guilty and sentenced, are entitled to seek a royal pardon, but this is sought after all legal remedies have been exhausted.

The composition of the Pardons Board consists of the Attorney-General (or his/her representative), the Chief Minister of the State, and not more than three other members appointed by the Ruler or Yang di-Pertua Negeri (Article 42(5) of the Federal Constitution).  Further, Article 42(9) stipulates that before tendering its advice on any matter, a Pardons Board shall consider “any written opinion which the Attorney General may have delivered” on the case.  However, the Pardons Board may only offer advice, and such advice is not binding on the Yang di-Pertuan Agong / Ruler / Yang di-Pertua Negeri — this was settled in the High Court decision in Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64.  Simply put, the function of the Pardons Board is merely advisory in nature and the decision to pardon or otherwise by the Yang di-Pertuan Agong / Ruler / Yang di-Pertua Negeri is not subject to judicial review, as demonstrated in the case of Juraimi bin Husin v Board of Pardons, State of Pahang & Ors [2002] 4 MLJ 529.

While the former prime minister is well entitled to seek a royal pardon, it is the Malaysian Bar’s view that he is not deserving of such clemency from the Yang di-Pertuan Agong, at this juncture.  His Majesty, the King has stated that the power to punish and to pardon should not be made arbitrarily as the law should be implemented consistently and fairly.2

The reputation of our country had become synonymous with corruption ever since the revelations of the 1MDB scandal broke in 2015.  In the words of the Court of Appeal judgment which have been used time and time again, the scandal has caused a “national embarrassment” to the nation.3  The Federal Court has now decided that there was corruption and abuse of power involved — and this decision and the consequence thereof must be respected.  Corruption is a societal cancer that siphons off resources from their intended purposes of benefitting the rakyat; instead, these have gone to line the pockets of those in the upper echelons of politics and society for personal gains; stifling the growth and development of our country as a result.  Corruption also serves to truncate human rights as it gives certain individuals advantage over others, and fundamentally undermines the fairness of how institutions operate.

The Malaysian Bar notes that while there have been royal pardons of public figures in the past, such as in the cases of Dato’ Seri Anwar Ibrahim, Mokhtar Hashim, and Harun Idris,4  all of them had served a substantial part of their imprisonment sentence before they were released on account of a royal pardon.  In this case, the former prime minister has only been in prison for less than a month and as such, he should first serve a better portion of his sentence.

We should never overlook the fact that the Federal Court’s decision on 23 August 2022 has restored the public’s faith in our Judiciary and the rule of law.  Throughout the entire saga, it is pertinent to note that the former prime minister has yet to demonstrate remorse for his actions.  Notwithstanding the multiple occasions to portray himself as a victim throughout the proceedings at the Federal Court, whether through challenges on legal representation or seeking the recusal of the Chief Justice of Malaysia, the Malaysian Bar takes the view that bestowing a royal pardon on him would directly go against the Federal Court’s decision and provide a form of impunity.  Again, simply put, this would make a mockery of the conviction and sentence meted out by an independent judiciary.

It is the Malaysian Bar’s position that a full pardon so early on would be perceived as premature since the former prime minister is still facing numerous charges of money laundering and criminal breaches of trust.5  A dangerous precedent would be set if a royal pardon is in fact granted in this case, as it will appear that those who held powerful executive positions in the past and are still facing similar criminal charges before the courts are above the law or beyond reproach.  The spirit of equality before the law and non-discriminatory principle under Article 8 of the Federal Constitution must be given its true meaning.

The Malaysian Bar stands by the view that respect for the Judiciary’s decision must be accorded, and the granting of a royal pardon to a convict who has brought shame to our nation would only leave a deleterious effect on our administration of justice, both domestically and internationally.

Karen Cheah Yee Lynn
Malaysian Bar

13 September 2022

1Najib filed petition for royal pardon, will remain an MP, says Azhar”, Free Malaysia Today, 5 September 2022.
2Agong: Power to punish and pardon should not be used arbitrarily”, Malaysiakini, 5 September 2022.
3 Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor [2021] MLJU 2485.
4Law Speak - The royal pardon”, The Sun Daily, 1 March 2015.
5One down, four more cases to go for Najib”, The Star, 24 August 2022.

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