House Arrest - this is a question that Parliament has to decide, whether the King/Ruler's Pardon Powers include ordering that the remaining prison term be spend at HOME, or some 5 star Hotel, or that the prisoner serves the remaining prison term in a 'High Class' prison with much better conditions than a normal prison.
Therefore, it was WRONG for the Attorney General Mohd Dusuki Mokhtar, vide the Attorney General's Chambers(AGC), to give the impression that prisoners in Malaysia now have the right to apply for pardon to serve remaining prison term at HOME...(or was it a misreporting by media??)
The Attorney-General's Chambers (AGC) has stated that all applications for prisoners, including former Prime Minister Datuk Seri Najib Razak, to serve the remainder of their sentences under house arrest must be submitted to the Pardons Board, chaired by the Yang di-Pertuan Agong.- Star,28/12/2024
Malaysia’s Attorney-General’s office said all petitions for prisoners in Malaysia to serve their sentences under house arrest, including jailed former prime minister Najib Razak, must be submitted to the pardons board chaired by the country’s king. - Straits Times, 30/12/2024What are the Pardon Powers of the King must be debated and decided by Parliament and best made clear by an amendment of the Federal Constitution, or the enactment of a Federal Law governing pardons by the King.
This is a serious issue, and it just does not affect the Pardon Powers of the King, but also the Pardon Powers of the State Rulers including the new Sabah Governor /Yang Di Pertua Negeri Musa Aman.
The Court of Appeal in that Anwar's pardon case already indicated the inadequacy with regard Pardon laws, and the need for CLARIFICATION which must be done by Parliament...
We are of the considered view 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. - DATUK SERI ANWAR IBRAHIM v. MOHD KHAIRUL AZAM ABDUL AZIZ & ANOTHER APPEAL, COURT OF APPEAL, PUTRAJAYA, [2023] CLJ (JT1)
YES, Parliament must amend the Federal Constitution, and/or enact a Federal Law that makes it clear - what exactly is the SCOPE of the Pardon Powers of the King/Ruler?
Hence, it was WRONG for the AGC to come out now and IMPLY that Pardon Powers include the ability of the King/Rulers to order a petitioner to spend the remaining prison term at HOME, or in other places other than Prison...
Now, in the 'addendum order' case, that Najib brought - there may be several matters for the Court to consider:-
a) If the said addendum order exists, is it a VALID Pardon Order - issue of procedural compliance. Remember the King/Ruler acts on the advice of the Pardons Board, which means DO ONLY AS THE PARDONS BOARD advices, the King/Ruler cannot 'add on' or subtract to the advice of the Pardons Board.
b) If the addendum order is VALID in terms of procedural compliance, then the next question may be whether that PARDON order is allowed in law - because all previous pardon orders have been about COMMUTING OF SENTENCE (from death penalty to imprisonment), REDUCTION of sentences(where the prison term or fine is reduced), or the TOTAL reduction(where the convicted goes free immediately) - so, the question is whether King/Ruler can order something like serving the remaining prison term at HOME
- then the question which is vague is whether the said home will be guarded by prison officers 24 hours to prevent escape,
- who else will be permitted to be in the HOME prison, Will he have to stay alone, or will he be able to stay with his family(who ordinarily resides there), with servants and other domestic workers?
- how will 'visitors' be dealt with - the application process, etc[In prison too visitors are allowed but at certain time, certain frequency and for only a definite time limit],
- access to internet and phones, can the prisoner go on FB live and Zoom and do public speeches, ceramahs,
- will the prisoner be required to wear electronic monitoring, will there be a need to install CCTV
- how can a home prisoner be able to go out to hospital or court hearings,
Then, there is the Financial Implications to the government that comes into question, as the cost of allowing a prisoner to be imprisoned at HOME will be much more, compared to housing prisoners in a common prison facility. The cost is higher if the house is large, compared to a small unit
In this case, if it reaches whether this kind of Pardon powers is allowed, the Court may take a similar position, i.e. if the Constitution/Law does not clearly say cannot - the Courts will not say NO - hence, again the need for Parliament to decide on this - the Constitution be amended, and a Federal Pardon Law be enacted to settle this vagueness or uncertainties... The issue of amending the Constitution, and enacting a Federal law that deals with Pardon of the King should have been dealt with before...
All said and done, Parliament must ACT FAST - and do the needed amendment to the Federal Constitution, and most definitely enact a Federal Law (as provided in the Constitution)
Article 42 (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;
Attorney General Mohd Dusuki Mokhtar acted wrongly and prematurely - he should have waited for Parliament to clarify the scope and power of the King/Rulers pardon powers.
Another question - if the government is dissatisfied with a Pardon Order of the King/Ruler - what should be done? A legal procedure must be provided - should the State go back to the King/Ruler and ask him to amend the Pardon Order, or revoke the Pardon Order - or should they go to the Court?
What happens when the King is no more - can he go to the NEW King to amend/cancel the Order? Would this not be a disrespect to the previous King?
When should the Government give effect to the Order? Can a Pardon Order of the King/Ruler be stayed pending review by the Court (or the King/Ruler). Or does it go to the Pardons Board - and not the King/Ruler?
Now, these are some of the issues that has arisen - but sadly, Parliament is yet to act...
If the King/Ruler act contrary to the advise of the Pardons Board - is it a CRIME or how do we deal with this? The Pardon Board Advises the King/Ruler, and the King/Ruler then issues the Pardon Order - should be on the official letterhead of the King/Ruler or from the Palace.
When the King/Ruler makes a Pardon Order - who should he send it to so that the Order be complied with. Reasonably, when it is from the King, the Pardon Order should be sent directly to the Prime Minister, who will then communicate the relevant Ministers or Departments for it to be put into effect.
For the State Rulers, the Orders should be send to the Chief Minister of the State, and definitely the Prime Minister as prisons are all under the jurisdiction of the Federal Government.
Should Pardon Orders also be sent to the Attorney General?
Parliament should act fast - and CLARIFY the issue of Pardon Powers. The Constitution need to be amended. And, for the King, a Federal Act on Pardon is urgently needed. That would serve as guidance for individual State Enactments governing Pardons.
The Courts have been reluctant to Judicial Review Pardon Orders - This must change. It must be able to Judicially review Pardon Order to (1) Procedural Compliance; (2)....my opinion of this will come on a later post..
For, one important aspect, is the right of VICTIMS to be heard before deciding on the question of pardons. ..this should be considered by Parliament too.
House arrest applications for prisoners must go through Pardons Board, says AGC
- Nation
-
Saturday, 28 Dec 2024
PETALING JAYA: The Attorney-General's Chambers (AGC) has stated that all applications for prisoners, including former Prime Minister Datuk Seri Najib Razak, to serve the remainder of their sentences under house arrest must be submitted to the Pardons Board, chaired by the Yang di-Pertuan Agong.
In a statement, the AGC clarified that under Article 42(1) of the Federal Constitution, the Yang di-Pertuan Agong has the authority to grant pardons, reprieves, and respites for offences committed in the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya.
The AGC also noted that Article 42(2) of the constitution allows the Yang di-Pertuan Agong to remit, suspend, or commute sentences for offences passed by the court.
"Following this, this Chamber has been instructed by the Yang di-Pertuan Agong to inform that all applications for pardons concerning offences committed within the Federal Territories must be submitted to the Pardons Board, chaired by the Yang di-Pertuan Agong, in accordance with the procedures and channels prescribed by law and not through other channels," the statement said on Saturday (Dec 28).
"Therefore, should any party wish to propose that any prisoner, including Najib, serve their sentence under house arrest, such an application must be submitted for consideration by the Pardons Board in accordance with the procedures and channels established under the applicable laws and regulations."
The AGC added that decisions made by the Yang di-Pertuan Agong, upon the advice of the Pardons Board under Article 42 of the constitution, are subject to existing legal provisions to ensure that such actions cannot be legally challenged as invalid.
On Dec 11, Prime Minister Datuk Seri Anwar Ibrahim mentioned that any matter concerning an addendum to the pardon order for Najib was briefly discussed during an audience with His Majesty Sultan Ibrahim, the King of Malaysia.
"So, we leave it to the authority of the King, firstly, to bring it to the meeting of the Pardons Board and to consider it thoroughly," he said in response to a supplementary question from Pekan MP Datuk Seri Sh Mohmed Puzi Sh Ali during the Prime Minister’s Question Time in Dewan Rakyat.
The Court of Appeal has fixed Jan 6, 2025, to hear Najib's appeal against the High Court's dismissal of his application for leave to initiate judicial review and a notice of motion to submit an additional statement on the royal addendum.
In the notice of application, Najib sought a mandamus order that all of the respondents or one of them to answer and verify the existence of the addendum order dated Jan 29, 2024.
Najib is seeking a mandamus order where if the addendum order exists, all or one of the respondents must execute the royal order and immediately move him from the Kajang Prison to his residence in Kuala Lumpur where he would serve his remaining sentence under house arrest- Star,28/12/2024.
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