Can King Or Pardons Board Insert Addendum Into Pardon

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Editor's note: Malaysiakini has obtained permission to republish this article, which first appeared here.
The answer is, No. Why? Since the Najib Abdul Razak saga began, the addendum has been, as Churchill famously said, “a riddle wrapped in a mystery inside an enigma”.
In my opinion, the first five reasons are:
Pardons cannot be granted “in instalments”.
The Constitution does not allow house arrest orders and no such precedent exists.
The king must comply with the Pardons Board’s advice - yet it appears the board did not endorse it.
Even if the addendum exists and its contents are true, it is wholly unconstitutional. The board cannot alter the nature of punishment. It can only reduce, or extinguish it.
An exercise of constitutional power without jurisdiction is void. There are other reasons as well. We have to consider these in a logical order. Further explanations follow.
[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 Yang di-Pertuan Agong, 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? 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 Agong is not the board, although 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.
Formal advice is constitutionally binding on the monarch - this principle has been consistently upheld all across the British Commonwealth.
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 and it’s unrelated 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 attorney-general’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? Secondly, what did the Pardons Board recommend to the king?
The issue is serious because Najib has complained that there was “no answer” from the government over the addendum.
In delivering its majority decision, the Court of Appeal stated that the AG had not rebutted the existence of the addendum.
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. 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 the former prime minister’s jail term be reduced by 50 percent?
The government should disclose the AG’s opinion.
Second, did the AG recommend that there should be a 77 percent discount on Najib’s 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. A tiny gleam of light was shed on Jan 6, 2025, when senior federal counsel Shamsul Bolhassan addressed the Court of Appeal.
In his arguments, Shamsul disclosed that during the Jan 29, 2024, meeting, the board had decided to halve Najib’s 12-year jail term and to reduce his fine to RM50 million.
Senior federal counsel Shamsul BolhassanOne 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 Jan 29, 2024, 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.
The reduction in sentence was the first to be disclosed on Jan 29, 2024. We did not hear anything about the 77 percent reduction in the fine. It was BBC that reported the “fine reduction” later, that too only on Feb 2, 2024!
No one has explained this delay.
[8]. If what Shamsul says is true, the former Agong was bound to comply with the board’s recommendation.
Why is that? The answer is in Articles 42 (9) and (8) read with Article 40 (1A) of the Constitution.
Article 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.”
Article 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.”
Article 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 [Kking] shall accept and act in accordance with such advice.”
Clear so far?
This means the king is required to act on advice and must comply with such advice. He has no choice. He cannot impose his view on the board.
[9]. Was addendum made before or after previous king left office?
The letter referring to the addendum was dated Jan 4, 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].  Addendum’s odd timing.
On Jan 29, 2024, the Federal Territories Pardons Board granted a “partial pardon” (or commutation) to Najib.
A day later, on Jan 30, 2024, the Pahang ruler Sultan Abdullah Sultan Ahmad Shah ended his reign as the 16th Yang di-Pertuan Agong of Malaysia. 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.
Najib claimed he was “informed” of an “additional order” allegedly made by the former king in the Jan 29, 2024 meeting.
Yet the Pardons Board’s statement on Feb 2, 2024, made no mention of any relaxation of imprisonment into a “house arrest”.
On Jan 4, 2025, a year after the Pahang sultan had left as king, a letter issued by the Pahang palace surfaced, speaking of the alleged addendum granting a house arrest.
It appears to have been signed by His Excellency Ahmad Khirrizal Ab Rahman, the Comptroller of the Royal Household of the sultan of Pahang.
On Jan 6, 2025, this was revealed to the public. Intriguingly, that letter was not addressed to the government, but to Najib’s son, Nizar.
Its contents have not been confirmed but social media posts seem to suggest that Najib’s claims are, if anything, true.
[11]. Assuming 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 Court of Appeal judge, Azizah Nawawi, seems justified in her view that there was no need for the government to confirm or produce the alleged royal addendum.
[12]. Does it 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?
Article 42(1) of the Federal Constitution uses several words to describe the Pardon Board’s range of powers.
The Malaysian Constitution lists seven types of relief. These are: 
Unconditional pardon
Conditional pardon
Reprieve
Respite
Remission
Suspension
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 May 10, 2018). 
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, for example, 15 years to 10 years.
“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, such as 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.
[15]. The common law does not, in its long usage, equate pardon to 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.
Crucially, no law has specified that the four words used in Article 42(1), ie “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 - like 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.
Any person affected by it may ignore it. 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 according to Article 42(1) of the Federal Constitution.
After leaving office, the former king had no jurisdiction to grant any pardon for offences committed within the Federal Territory. From Feb 1, 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. 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 of 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.
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”.
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 characterised by “mirrors and blue smoke”.
We Malaysians live in a hall of smoke and mirrors. - Mkini
GK GANESAN is a lawyer and an international commercial arbitrator.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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