KUALA LUMPUR – Legal experts and practitioners are urging comprehensive reforms to enhance transparency on the Pardons Board, addressing concerns related to decision-making and composition.
This call comes in the aftermath of the reduction in the sentence and fine for former prime minister Datuk Seri Najib Razak.
In a forum titled “Justice and Mercy: A Forum on Reforms to the Pardons Board in Malaysia,” today, the panellists expressed near-unanimous agreement on the need for reform.
Constitutional expert Prof Emeritus Datuk Shad Saleem Faruqi highlighted the influence of governmental pressure on the current board’s composition, proposing the separation of the attorney-general from the public prosecutor and the appointment of the latter to the Pardons Board.
“The solution then is to separate the AG from the public prosecutor and (only) appoint (the latter) to the Pardons Board,” he said in the forum.
“The leader of the political opposition should be considered for appointment to balance the role of the federal territories minister.
The three other members should be senior persons of integrity and independence, he said, after noting that the members may also be political appointees.
Shad also suggested that the Federal Constitution should clarify whether a pardon can occur prior to a conviction and the distinction between partial and full pardons.
The Pardons Board secretariat for the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya recently announced the reduction of Najib’s prison sentence from 12 years to six, while his fine was lowered from RM210 million to RM50 million.
Should Najib fail to pay the fine, he would have to serve an additional year in prison in default.
Similarly, Malaysian Bar president Karen Cheah called for more clarity over the board’s composition, considering how the AG and chief minister roles are executive appointed.
“We need a kind of safeguard to ensure those appointed (on the board) represent a broad cross-section of the community and will represent the public’s voice,” she said.
“That’s what could have happened here. If the three people appointed were those who represented the public, perhaps the advice given to the king would be different.”
Cheah also said guidelines or measures when granting a pardon would be essential to ensure that the decisions are not made arbitrarily and in good practice, while also insisting it is not a move to curb the Yang di-Pertuan Agong’s power.
She also aimed a jab at Tan Sri Muhammad Shafee Abdullah, who was also present at the forum, saying that the issue of interpreting Articles 40 and 42 of the Federal Constitution is an old argument.
Therefore, she said it was a matter of a difference of opinion, and “there is no need for (her) to go back to law school”.
She said the Agong’s constitutional power to grant a pardon is not discretionary but is exercised on advice, according to Article 40 of the Federal Constitution.
However, Shafee dismissed the statement, arguing that the king had sole discretion over the advice and views of Pardons Board members.
During the forum, Shafee argued that the court of law has its own problems, and disputing the Agong’s decision would only discredit the mechanism.
“We cannot turn the mechanism of a pardon into another court, where you take the Agong for a judicial review and band about his decision from the high to appellate courts, discuss how wrong, right, or silly he was.
“The entire prerogative becomes a joke. Our system devised the royal pardon as a royal prerogative, meaning that a pardon is a situation where it is non-renewable.
“It provides the (Agong) with the comfort that he can decide based on any perimeter, as long as he satisfies his conscience that ‘this man deserves the pardon’,” he said. – February 20, 2024