[1].    Article 40(1A): Is the decision to pardon, a collective decision of the Pardons Board, or that of the King alone?

It is that of the Board. Let us test this answer.

Could the King, without the Pardons Board, unilaterally grant, amend, add to, or take away a pardon? The answer is, ‘No’. Why?

His Majesty has to comply with the advice of the Pardons Board. Why is that? ¹ Please see para (8) for the law.

The reasons are obvious.

To begin with, the decision to pardon is the collective decision of a constitutional body called the ‘Pardons Board’. The King cannot decide independently of the Board. The King is not the Board; but he is a part of it. He cannot make a separate decision outside the Board. If his decision differs from that of the Board, the Board’s decision stands, and His Majesty must endorse it. ² Any exercise of the King’s prerogative powers depends upon ministerial advice. The responsibility for the monarch’s actions rests with the minister who gave the advice: and that minister is accountable to Parliament.

Formal advice is constitutionally binding on the monarch: this principle has been consistently upheld all across the British Commonwealth.³https://commonslibrary.parliament.uk/research-briefings/cbp-9877/ I shall not oppress you with caselaw, but see here.⁴Indian Supreme Court in Maru Ram v. Union of India [1980] INSC 213, 1981 (1) SCC 107. Maru Ram was subsequently confirmed by the Indian Supreme Court in Kehar Singh v. Union of India [1988] INSC 370, 1989(1) SCC 204. In Epuru Sudhakar & Another vs Govt. Of A.P. & Ors [2006] INSC 638, Supreme Court, it was held that “clemency is subject to judicial review and that it cannot be dispensed as a privilege or act of grace”. The court made these observations while quashing the decision of the then Governor of Andhra Pradesh Sushil Kumar Shinde in commuting the sentence of a convicted Congress activist: “Court Can Review Pardon: SC”. Economic Times. 12 October 2006. Archived from the original on 29 June 2013. Retrieved 5 April 2013.

The other reasons appear below.

[2].    Did the Pardons Board discuss or decide on Najib’s House Arrest?

The minutes of the Pardons Board would answer the question. We do not have it. The Government should disclose this information. This will eliminate unnecessary speculation.

It is not an ‘official secret’ (and why should it be?). It has nothing to do with national security. Nor is it related to political manoeuvring – or so we are told.  In the interest of transparency, there is all the more reason that such information should come before the public.

[3].    Which brings us to the next two questions: What was the AG’s opinion; and what did the Board recommend?

The Pardons Board met on Jan 29, 2024 (hold this date in your mind) to consider Najib’s petition.

What opinion did the AG render on that day?

Second, what did the Pardons Board recommend to the King?

The issue is serious⁵In October 2020, Mohd Khairul Azam bin Abdul Aziz challenged Anwar’s pardon. At the High Court Akhtar Tahir JC thought that the question was so serious that he ruled that it was justiciable: see Mohd Khairul Azam bin Abdul Aziz v Lembaga Pengampunan Wilayah Persekutuan & Anor [2020] MLJU 1691. That was reversed on appeal.  The Court of Appeal ruled that the courts had no jurisdiction to confirm or vary the King’s decision: (see Datuk Seri Anwar Ibrahim v. Mohd Khairul Azam Abdul Aziz & Another Appeal [2023] 2 CLJ 236, at paragraphs 37, 46, 48 & 49).  In December 2024, the Bar Council challenged the Pardon Board’s decision to commute Najib’s punishment. In December 2024, it was thrown out by Ahmad Kamal Md Shahid J because the judge ruled the Pardon Board’s decision could not be challenged in Court: (see Badan Peguam Malaysia v Lembaga Pengampunan Wilayah-Wilayah Persekutuan Kuala Lumpur, Labuan and Putrajaya & Anor [2024] MLJU 3368). In this he was following Juraimi Husin v Pardons Board, State of Pahang & Ors [2002] 4 CLJ 529. Juraimi had ruled that “the prerogative of mercy was … not … amenable to the judicial process”: (see p 537A-B); following Council of Civil Service Unions & Ors v Minister for the Civil Service [1984] 3 All ER 935 and Sim Kie Chon v Superintendent of Pudu Prison & Ors [1985] CLJ Rep 293; [1985] 2 MLJ 385.  This was followed in Ronald Kiandee & Anor v Dato’ Johari bin Abdul (disaman sebagai Yang di-Pertua Dewan Rakyat) & Ors [2023] MLJU 2798.  My view is that a Pardon Board’s decision is justiciable because it is a decision of the Executive. But many Malaysian authorities are against this view. because Najib has complained that there was “no answer” from the Government over the alleged Addendum.⁶https://www.bernama.com/en/region/news.php?id=2379656, where Justice Firuz speaking for the majority, observed that the respondents had neither confirmed nor denied Najib’s assertion of the existence of the Addendum.

In delivering its majority decision, the Court of Appeal stated that the AG had not rebutted the existence of the Addendum.⁷https://theedgemalaysia.com/node/739934

While the ‘lack of response’ is irrelevant to the Addendum’s validity, the Government should have disclosed this.

As the controversy deepens, it is now incumbent upon the Madani Government to divulge it.

[4].    The Addendum represents the exercise of a constitutional power.

Those who exercise constitutional power exercise such power from within a house of glass. That demands absolute transparency.

If the exercise of such power is opaque, that smacks of other things.

Anwar himself has gone on record several times, demanding transparency.⁸ https://www.bernama.com/en/news.php?id=2378963;https://www.malaysiakini.com/news/730577;https://www.cfr.org/event/conversation-prime-minister-anwar-ibrahim-malaysia. This has been met with doubt. Critics argue that his corruption-busting campaign may be politically motivated, pointing to the dismissal of charges against his own ally in the government https://www.perplexity.ai/search/has-the-current-prime-minister-FSVFmYS.S4eFKN46Uc0lfQ. Some observers suggest that the public views these anti-corruption efforts as following in the footsteps of his predecessors, where politics shapes prosecutions: https://www.scmp.com/week-asia/people/article/3258335/malaysias-revolving-door-corruption-persecution-hurts-support-anwars-crackdown. There are calls for greater independence of anti-corruption bodies to address public distrust in the system: https://www.scmp.com/week-asia/people/article/3258335/malaysias-revolving-door-corruption-persecution-hurts-support-anwars-crackdown. As the head of the Madani administration, ‘Accountable Governance’ has been Anwar’s constant slogan.

He cannot allow the public and the judiciary, which protects the people against the government, to be burdened with the Addendum issue.

[5].    Under Art 42(9), the Pardons Board must consider the AG’s written opinion, ‘before tendering its advice’ to the King.

However, the AG’s ‘opinion’ remains a mystery. It was his team that had prosecuted Najib. Did he recommend that there should be a 50% reduction of sentence?

The Government should disclose the AG’s opinion.

Second, did the AG recommend that there should be a 77% discount of the fine: from RM210 million to RM50 million? Or was that a decision of the Board?

This brings us to the third question.

[6].    What did the Board advise the King?

The Addendum has been an enigma.⁹https://wordhistories.net/2019/07/28/riddle-wrapped-mystery-enigma/

A tiny gleam of light was shed on 06 Jan 2025, when Senior Federal Counsel Shamsul Bolhassan addressed the Court of Appeal.

In his arguments, Shamsul disclosed that during the Jan 29, 2024 meeting, ¹⁰Its 61st meeting the Board had decided to halve Najib’s 12-year jail term and to reduce his fine to RM50 million.¹¹https://www.freemalaysiatoday.com/category/nation/2025/01/06/house-arrest-not-discussed-at-pardons-board-meeting-says-govt-lawyer/

One wonders why on earth the Anwar Government would do that – if not for political purposes. We shall deal with this in another article.

[7].    When was the Pardons Board’s decision disclosed to the public?

Remember I told you to ‘hold’ the 29 Jan 2024 Pardons date in your mind?

Initially, there was no government confirmation about what happened at the Board. Reuters reported being unable to ‘independently verify’ the details of the royal pardon.¹² https://www.reuters.com/world/asia-pacific/malaysia-set-decide-royal-pardon-jailed-former-pm-najib-media-2024-01-10/

The reduction in sentence was the first to be disclosed on 29 Jan 2024. We did not hear anything about the 77% reduction in the fine. It was BBC that reported the ‘fine reduction’ later, that too only on 02 February 2024! ¹³https://www.bbc.com/news/world-asia-68137595

No one has explained this delay.

[8].    If what SFC Shamsul says is true, His Majesty, the former King was bound to comply with the Board’s  recommendation.

Why is that? The answer is in Articles 42 (9) and (8) read with Art. 40 (1A) of the Constitution.

Art. 42 clause (9) states:

“Before tendering their advice on any matter a Pardons Board shall consider any written opinion which the Attorney General may have delivered thereon.”

Art. 42 clause (8) states:

“The Pardons Board shall meet in the presence of the Ruler or Yang di-Pertua Negeri and he shall preside over it.”

Art. 40(1A) puts the matter beyond doubt: It reads:-

“Yang di-Pertuan Agong to act on advice: (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 [King] shall accept and act in accordance with such advice.”

Clear so far?

This means the King, when he is required to act on advice, must comply with such advice. He has no choice. He cannot impose his view on the Board.

[9].    Addendum if made after previous King vacated office

The letter referring to the Addendum was dated January 04, 2025. It was sent to Najib’s son. Thus far, there is no record of it being sent to the Prime Minister or the AG. Had it been sent, it would have made no legal or constitutional difference. More on that later.

[10].  First look at the odd timing of this Addendum

On 29 January 2024, the Federal Territories Pardons Board granted a ‘partial pardon’ (or ‘commutation’) to Najib Razak.

A day later, on January 30, 2024, the Sultan of Pahang ended his reign as the 16th King of Malaysia.¹⁴His Majesty Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah With his departure, his powers over the FT Pardons Board ceased.

In April 2024, Najib filed for a judicial review, challenging the Malaysian government and the Pardons Board “to verify”, and then “to execute” the purported “house arrest” order in the Addendum.¹⁵Ibid

Najib claimed he was “informed” of an “additional order” allegedly made by the former King in the January 29, 2024 meeting. Yet the Pardons Board’s statement on February 02, 2024 makes no mention of any relaxation of imprisonment into a ‘house arrest’. ¹⁶https://www.malaymail.com/news/malaysia/2025/01/07/explained-why-najib-isnt-heading-to-house-arrest-just-yet-despite-his-new-court-victory/162288

On January 04, 2025, a year after the Pahang Sultan had left as King, a letter, allegedly issued by the Pahang Sultanate surfaced, speaking of the alleged Addendum granting a house arrest. It appears to have been signed by His Excellency Datuk Ahmad Khirrizal Ab Rahman, the Comptroller of the Royal Household of the Sultan of Pahang. On 06 January 2025, this was revealed to the public. Intriguingly, that letter was not addressed to the Government, but to Najib’s son, Datuk Nizar.

Its contents have not been confirmed. Social media posts seem to suggest that Najib’s claims are, if anything, true.¹⁷https://www.thestar.com.my/news/nation/2025/01/06/letter-goes-viral-confirming-existence-of-039royal-addendum039-for-najib039s-pardon

[11].  Assume that the letter is true. What is its legal effect?

Are the contents of the letter false or true? In my view, that would make no legal difference in the construction of the constitutional provisions. The dissenting judge, Justice Azizah, seems justified in her view that there was no need for the government to confirm or produce the alleged royal Addendum.¹⁸https://www.thestar.com.my/news/nation/2025/01/07/dissenting-judge-no-requirement-to-confirm-royal-addendum

[12].  Does all that matter?

The Addendum, in my opinion, even if made with the Board’s recommendation is, in law, a nullity.

[13].  How many kinds of pardons are mentioned in the Constitution?

Art. 42(1) of the Federal Constitution uses several words to describe the Pardon Board’s range of powers.¹⁹It states: “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, …”

The Malaysian Constitution lists seven types of relief. These are: –

‘Pardons’, both ‘unconditional’ and ‘conditional’;

‘Reprieve’;

‘Respite’;

‘Remission’;

‘Suspension’; and

‘Commutation’.

Najib seems to contend that pardons, reprieves and respites include a “House Arrest Order”.

[14].  What is the difference between these technical words?

‘Free pardon’ or ‘Pardon’ means that the sentence is completely wiped out (like that of the ‘free pardon’ granted to Anwar on 10 May 2018). ²⁰Article 48(1)(e), Federal Constitution. See also R v Foster [1984] 2 All ER 679. At page 684, it was held that a pardon “removes from a convict all the pains, penalties and punishment that ensue from the conviction” It is important to note, however, that while a pardon removes the punishment, it does not erase the conviction itself. Only a court has the power to quash a conviction.

‘Commutation’ means reducing a sentence from e.g. 15 years to 10 years.²¹There are examples of US State Governors reducing the sentence of certain convicts when leaving office: Toney Anaya of New Mexico in 1986 [“Anaya Takes 5 Off Death Row”. Los Angeles Times. 26 November 1986. Retrieved 16 July 2013]; George Ryan of Illinois in 2003, [Marsh, Jason. “A Change of Heart”. Greater Good. Berkeley University. Retrieved 16 July 2013]; [Martin O’Malley of Maryland in 2014 “O’Malley commutes Maryland’s last four death sentences” CNN. 31 December 2014. Retrieved 16 July 2013] and Kate Brown of Oregon in 2022 Selsky, [Andrew (14 December 2022). “Oregon governor commutes all 17 of state’s death sentences”. Associated Press. Retrieved 15 December 2022]

‘Remission’, like commutation, is a complete or partial cancellation of the punishment. Najib’s pardon is in fact a ‘remission’ or ‘commutation’.

A ‘reprieve’  delays the execution of a sentence, usually a death sentence, to allow time for applications for a royal pardon; to apply for any other legal remedy to prove a convict’s innocence; or to allow for successful rehabilitation.

A ‘respite’ differs from other forms of pardon, e.g. commutations, or remissions. It postpones a sentence temporarily. A respite does not permanently alter or remove the sentence. One example is where a sentence is postponed due to the convict’s illness, or pregnancy.²²Azize, Joseph, ‘The Prerogative of Mercy I New South Wales’, The Journal of Law and Social Justice (2007) Vol 1, Art 6 pp 1-36.

[15].  The common law does not, in its long usage, equate ‘pardon’ to as ‘House Arrest’

First, in the grant of a ‘partial’ pardon, the Constitution limits the Pardons Board to only three possibilities: to ‘remit’, to ‘suspend’ or to ‘commute’ sentences.²³Article 42(1).

Crucially, no law has specified that the four words used in Art 42(1), i.e. ‘pardons’, ‘reprieves’ and ‘respites’, ever meant ‘House Arrest’.

[16].  Pardons Board has no power to change the character of the court sentence

The Constitution does not give the Board, or the King, any power to change the character of the punishment given by the court. By a pardon, any sentence of imprisonment can be reduced, or completely extinguished: but it cannot be changed into something else – e.g. an enjoyment of the luxuries of home.

[17].  If an order is made without jurisdiction, it is a nullity

In my view, the so-called Addendum is a nullity. If an order is made without jurisdiction, it is a nullity. It thus requires no compliance.²⁴The Federal Court in Eu Finance Berhad v. Lim Yoke Foo [1982] 2 MLJ 37. The Federal Court said: “Where a decision is null by reason of want of jurisdiction, it cannot be cured in any appellate proceedings; failure to take advantage of this somewhat futile remedy does not affect the nullity inherent in the challenged decision. The party affected by the decision may appeal ‘but he is not bound to (do so), because he is at liberty to treat the act as void’ [Birmingham (Churchwardens and Overseers) v Shaw (1849) 10 QB 868 880116 ER 329 at page 880 ( per Denman C.J.)]. In Barnard v National Dock Labour Board [1953] 2 QB 18, 34 it was said that, as a notice of suspension made by the local board was a nullity, ‘the fact that there was an unsuccessful appeal on it cannot turn that which was a nullity into an effective suspension’ (at page 34 per Singleton L.J.). Ridge v Baldwin [1964] AC 40 is to the same effect.”  The Court continued:  “Lord Denning said in Director of Public Prosecutions v Head [1959] AC 83 (at page 111) that if an order was void, it would in law be a nullity and there would be no need for an order to quash it as it would be automatically null and void without more ado. Lord Denning as Master of the Rolls so held too in Regina v Paddington Valuation Officer & Anor, Ex parte Peachey Property Corporation Ltd (No 2) [1966] 1 QB 380 (at page 402), 402 . The judgment of this court in Pow Hing & Anor v Registrar of Titles, Malacca [1981] 1 MLJ 155, 157 refers (at page 157) to the decision of the House of Lords in London & Clydeside Estates Ltd v Aberdeen District Council & Anor [1980] 1 WLR 182, 189 and a passage in the judgment of the Lord Chancellor, Lord Hailsham of St. Marylebone (at page 189) where he refers to a spectrum of possibilities as the legal consequence of non-compliance with statutory requirements and speaks of one extreme where there has been such an outrageous and flagrant violation of a fundamental obligation that what has been done may be safely ignored and treated as having no legal consequence and in the event of any reliance sought thereon the party affected is entitled to use the defect simply as a shield or defence without having taken any positive action of his own.”

Any person affected by it may ignore it.²⁵In Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729, 736, Lord Diplock L.J. said (at page 736) that ‘it has been long laid down that where an order is a nullity, the person whom the order purports to affect has the option either of ignoring it or of going to the court and asking for it to be set aside’. There is no reason why this legal principle cannot be applied to constitutional interpretation.

The King’s jurisdiction to grant pardons was limited to persons convicted of crimes within the Federal Territory: Art. 42(1) of the Federal Constitution.²⁶The first limb of the ‘Power of pardon’, etc is in Article 42(1), which reads: “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 …”.  

After leaving office, the former King had no jurisdiction to grant any pardon for offences committed within the Federal Territory. From February 01, 2024, only the new King, His Majesty Sultan Ibrahim Sultan Iskandar of Johor, could do that.

[18].  The power to grant a pardon is the decision of the Government, made in the name of the King

The power to pardon is the power of the Government.²⁷Historically, it was a creature of common law. In the old days, only the King possessed the power to grant pardons. When in England parliamentary supremacy took over, that power was passed to Parliament, and then to the Government (commonly called the ‘Executive’. Do you know why it was called ‘the Executive’? The Government is the Butler of the Parliament. Parliament makes laws. The Government carries it out. Ours (like Britain) is a fused system. The power of Parliament and the Government is exercised through MPs who have a leg in the Government as the Cabinet, and in Parliament as MPs. When our Constitution was established common law was brought into it.  The first principle is this: The pardoning power of the King is not absolute. The Government itself insists the Addendum was not discussed at the Pardon Board’s meeting. One theory suggests the King issued the Addendum independently. I have previously argued that the King cannot act on his own volition; for he must comply with the advice of the Pardon’s Board.

[19].  What if the former King had issued the Addendum after he had left office?

A former King cannot add to or change a pardon order after cessation of office. If this is how it was done (and I am not sure if it was) then any such change is without jurisdiction. Again, a state Ruler cannot grant a pardon for an offence that occurs outside his state.

[20].  Public Policy: Governments rarely and only grant pardons to those who are considered ‘morally innocent of the offence’

It has always been the policy of governments in the British Commonwealth to grant pardons only to those who are considered ‘morally innocent of the offence’. This is as opposed to those who may have been wrongly convicted by a misapplication of the law.²⁸https://www.ag.gov.au/crime/federal-offenders/appeals and https://www.andrewwilliamslawyer.com.au/what-is-the-royal-prerogative-of-mercy-in-western-australia.html For example the former Australian Attorney-General Nicola Roxon, confirmed this principle in 2012, when she said that, “… a pardon is only granted where the offender is … morally innocent of the offence”.²⁹https://stacklaw.com.au/news/criminal-law/can-i-get-a-royal-pardon

If we apply that test here, is Najib ‘morally innocent’ of the crime?

If we ignore this principle, we, in effect, convey the message to corrupt politicians that: “It is all fine in Malaysia to be corrupt. After your conviction and sentence, fall at the feet of the King. Then enjoy a well-earned rest at a house arrest”.

That would be a charter for crooks!

[21].  Smoke and mirrors

The phrase “smoke and mirrors” comes from the practices of illusionists from the 18th and 19th centuries. They used hidden mirrors and smoke to create visual illusions.

‘Smoke and mirrors’ are tricks to obscure the truth through distraction, misdirection, or partial truths. This tactic has also been exploited to draw people’s attention away from unpleasant facts.

In his 1975 book, ‘How the Good Guys Finally Won: Notes from an Impeachment Summer’, the journalist Jimmy Breslin describes political power as an illusion characterized by “mirrors and blue smoke”. ³⁰https://wordhistories.net/2017/04/12/smoke-and-mirrors/

We Malaysians live in a hall of smoke and mirrors.

[The author thanks Ms KN Geetha, Mr. UK Menon, Miss Lydia Jaynthi, Miss Pavitra Apparao, Miss TP Vaani, and Miss JN Lheela for their assistance]