“Getting to the bottom of Najib’s clemency”

MOST Malaysians are unhappy either way after the Pardons Board announced its decision on former premier Datuk Seri Najib Razak’s appeal. This writer is also disappointed.

However, going deeper into the case, the Pardons Board was obviously in a dilemma due to pressure from both sides yet a decision had to be made regardless since the appeal was brought before the Board.

Certain factions within UMNO, for example, want the former Pekan MP to get his free (or unconditional) pardon while most others think that the reduced jail sentence from 12 years to only six years and discounts for the fine from RM210 mil to a mere RM50 mil are a mockery of the country’s justice system, considering that Najib’s SRC International case went through the entire legal process before a conviction was secured.

Constitutional lawyer explains

According to advocate and solicitor GK Ganesan, the decision is made by the Pardons Board whose advice the King must accept.

Ganesan, who is also a constitutional lawyer, has explained it very well in a post in Paradox dated Oct 30, 2022. He listed out seven types of pardon allowed under the federal constitution.

In this case, what Najib hoped for was an unconditional pardon but what was dished out to him was a commutation pardon which allows for a jail sentence to be reduced from 12 years to six years.

In arriving at the decision, the Board had to fall back on common law. Ganesan laments that while in some Commonwealth nations there are specific laws on when a pardon should be granted, obviously Malaysia does not have such laws in place.

This explains why Najib has only been in jail for 17 months and his appeal has already been brought before the Pardons Board.

More headaches

UMNO has postponed its Bumiputera Economic Congress in order for its Supreme Council to convene a meeting to discuss, among others, the decision made by the Board.

UMNO president Datuk Seri Ahmad Zahid Hamidi will have a tough time keeping a balance between the need to preserve the unity government and to pacify discontented UMNO members who are Najib’s loyalists.

It would be interesting to know the decision made by the Supreme Council considering that both the former and the new-installed Yang Di-Pertuan Agong (YDPA) Sultan Ibrahim Sultan Iskandar want the unity government to run its full course in order to preserve political stability in the country until the next general election.

Unconditional Pardon not tenable

The Pardons Board, which commuted Najib’s sentence to a lesser jail sentence and a lower fine, comprises the YDPA Sultan Abdullah Sultan Ahmad Shah as chairman, the Attorney-General Datuk Ahmad Terrirudin Mohd Salleh, Dr Zaliha Mustafa in her capacity as Federal Territories Minister, and three others appointed by the YDPA.

The Federal Constitution Article 42 (5) is very clear:

(5) The Pardons Board constituted for each State shall consist of the Attorney General of the Federation (Datuk A. Terrirudin or his nominee), the Chief Minister of the State (in the case of the Federal Territories, Dr Zaliha) and not more than three other members, who shall be appointed by the Ruler or Yang di-Pertua Negeri; but the Attorney General may from time to time by instrument in writing delegate his functions as a member of the Board to any other person, and the Ruler or Yang di-Pertua Negeri may appoint any person to temporarily exercise the functions of any member of the Board appointed by him who is absent or unable to act.

According to multiple sources which FocusM contacted, the royal appointees are Datuk Dr Prasad Sandosham Abraham (lawyer), Datuk Paramasivam Arunasalam (a former police officer) and Tuan Haji Darussalam Budin from Yayasan Prihatin Insan.

An earlier article by Malaysiakini mentioned a fourth name but it has been confirmed that former chief judge Malaya Tan Sri Zaharah Ibrahim is not on the Board.

The decision made by the Board is based on a number of factors because an unconditional pardon can have many implications including the reputation of the country, the confidence of the people in the royal institution, and even the YDPA’s own reputation.

This writer is of the view that the YDPA would not rush into making a decision just because Najib is an important person within his home state, considering that Najib’s cases are of such magnitude that it would take years to repair the country’s image. This explains why Najib could not be given an unconditional pardon.

Najib’s loyalists have to understand that, with the YDPA, an unconditional pardon is really out of the question.

At the same time, the critics who jumped onto the bandwagon have to understand that Prime Minister Datuk Seri Anwar Ibrahim (PMX) and his cabinet have no say in how the Pardons Board makes its decision.

In fact, all three Royal appointees are non-political figures versus one minister from Anwar’s cabinet. Even if the AG is a political appointment, the PMX has no direct influence on the Pardons Board in a 3 vs 2 scenario.

Citing a press statement from BERSIH dated Feb 3, 2024, it is not right to push the Attorney-General or the Federal Government with regards to granting Dismissal Not Amounting to Acquittal (DNAA) to corruption cases that are still being tried, especially involving politicians.

“BERSIH juga menegaskan semula tuntutan kepada pihak Peguam Negara dan Kerajaan Persekutuan supaya menetapkan polisi untuk menghentikan pemberian sebarang DNAA – melepas tanpa membebaskan – kepada kes-kes rasuah yang sedang dibicarakan khususnya melibatkan ahli politik, sementara menanti pindaan undang-undang untuk memisahkan peranan dan bidang kuasa Peguam Negara dan Pendakwa Raya.”

While this writer fully agrees that Najib’s cases are so much more serious than the case of a mother of three who received a two-year jail sentence for CBT, the fact is that both the judiciary and executive are two separate and independent branches of the government.

PMX or the AG cannot interfere with the decision made by the courts, and in this case, since it involves Najib’s commutation by the Pardons Board, why do we want PMX or the AG to interfere with the Board’s decision so that Najib’s sentence would not be reduced?

The Board’s decision is based on the mercy of the Agong after taking into consideration all the different angles. – Feb 3, 2024



Main photo credit: AFP

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