Lawyers for Liberty (LFL) refers to Prime Minister Anwar Ibrahim’s statement in a recent interview on Najib Razak’s pardon that “I respect the decision of the then King” and “the King after listening to the Pardons Board finally decided to reduce the sentence”.
Anwar clearly suggests that it is the [previous] king’s decision.
This appears to be a clear attempt by the PM to pass the final responsibility for the reduction of Najib’s sentence to the king.
But what Anwar said, whilst politically convenient for his government, is constitutionally wrong.
The responsibility for this pardon lies squarely upon the federal government, and not the king, who as a constitutional monarch, acts upon advice tendered to him.
Under Article 42 of the Federal Constitution, the power of pardon is exercised by the king upon the advice of the Pardons Board for the federal territories.
By virtue of Article 40(1A), whenever the king is to act in accordance with advice, the king “shall accept and act in accordance” with that advice.
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In short, the king is bound to accept the advice of the Pardons Board and has no discretion in the matter.
Case laws have decided that the royal prerogative of pardon is not justiciable in court, but this does not alter the fact that the king is bound to act on the board’s advice.
The federal territories Pardons Board consists of the attorney general, the federal territories minister and appointed members.
The attorney general is the federal government’s legal adviser, and the federal territories minister represents the PM and the federal cabinet. Hence, the prime minister and his government bear full responsibility for the decision to pardon Najib.
Unusually, Anwar also stated that Najib can appeal further to the Pardons Board against his reduced sentence.
Why does the PM have to make such a statement, which is premature and up to the prisoner and his legal counsel to decide upon? This statement seems to be laying the basis for a further reduction or perhaps full pardon.
This is a dangerous turning point for Malaysia. Najib’s reduced sentence will inflict incalculable damage upon Malaysia’s international standing and image as the 1MDB corruption scandal was a global news event and involved corrupt transactions in multiple countries.
Its immediate effect is that the current government has suffered a devastating loss of moral authority.
Zaid Malek is director of Lawyers for Liberty