Full Pardon For Najib May Not Be A Good Idea

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Having exploited the issue of a royal addendum to the hilt, Umno is now switching to a new gear.
Armed with the latest decision by the Court of Appeal the party is reported to have beseeched the Yang di-Pertuan Agong to grant former prime minister Najib Abdul Razak a full pardon for the latter’s conviction in the SRC International case.
Umno president Ahmad Zahid Hamidi issued this statement, viz, “Umno seeks the grace, wisdom, and justice of His Majesty the Yang di-Pertuan Agong to grant a full pardon for Najib in accordance with the royal prerogative under Article 42 (1) and (2) of the Federal Constitution.”
While Umno may be entitled to resorting to such a puzzling endeavour the issue is whether demanding a full pardon for a convicted felon like Najib - who was unanimously convicted by very powerful judgments by the Malaysian judiciary including five top Federal Court judges - is really a good idea.
Let us kick off our discussion by looking at Article 42 of the Federal Constitution which says “Yang di-Pertuan Agong has the 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; and the Ruler or Yang di-Pertua Negeri of a state has the power to grant pardons, reprieves and respites in respect of all other offences committed in his state.”
In essence, the power under Article 42 comprises the power to grant pardons, reprieves and respites without prejudice to the power to remit, suspend or commute sentences conferred by federal or state law.
Defining reprieve, respite
This essay, however, will only focus on the issue of pardon or rather a full pardon. Nevertheless, for the sake of completeness, it would be instructive to decipher these terms as well, namely “reprieve” and “respite” as they are also explicitly mentioned in Article 42.
In law, “reprieve” entails the suspension for the time of the execution of a sentence in a criminal court.
Lawyers used to cite this example to illustrate the meaning of the word “reprieve”. Assuming a pregnant woman is convicted of an offence, she may be granted a reprieve of her sentence.
"Respite”, on the other hand, means awarding a lesser sentence instead of the penalty which is stipulated under the relevant penal law. Hence “respite” may be duly considered if, for instance, the accused has no prior convictions.
As far as pardon is concerned, the grant of it may have legal consequences on both the punishment prescribed for the offence and the guilt of the offender. In other words, a pardon affects both the punishment prescribed for the offence and the guilt of the offender.
The debate on the conviction of a criminal by any court of law, on the one hand, and a pardon granted by any pardoning authority, on the other, basically hinges on a legal discourse of the perennial issue involving justice and mercy.
Justice and mercy
The court’s core business is to mete out justice irrespective of the status of the offender. Mercy, on the contrary, is normally under the province of a superior authority.
In our present context, the court delivers justice and the king tenders mercy. The oft-quoted maxim “justice must be tempered with mercy” is one of the golden threads in criminal law.
When Umno seeks to ask for full pardon to be granted to a convicted criminal like Najib, such a plea, with due respect, may drive home adverse impacts on the image and integrity of our judicial system in particular.
It may also demotivate the nations’ urges to combat corruption and abuse of power. After all, our prime minister has repeatedly proclaimed to the entire world that his government is fully committed to uprooting corruption and abuse of power.
Be that as it may, a full pardon may potentially send a wrong and devastating message. After all, a full pardon blots out the guilt itself as per the judgment by an Indian court in the case of Khagendranath v Umesh Chandra Nath AIR 1958 Assam 183.
If a full pardon is bestowed on Najib despite the court’s unanimous verdict of conviction, Najib will be treated as if he is an innocent baby! It may also be construed as a backdoor to impunity.
Guilt remains
It is common knowledge that the Pardons Board had decided to grant Najib a remission - the reduction of the amount of a sentence without changing its character meaning he is still a criminal!
In the case of a remission, the guilt of the offender is not affected at all, neither is the guilty verdict as well as the sentence which was meted out by the court.
Whenever remission is granted, a criminal like Najib does not suffer incarceration for the entire period of the sentence, but he is only relieved from serving out a part of it.
While the remission conferred to Najib may well be within the legal and constitutional framework, we, however, notice there have been strident voices of dissatisfaction among the people as regards the speedy nature of such a remission process being undertaken.
They even lamented there was an alleged breach of the doctrine of equal protection under Article 8 of the apex law when the entire process of resorting to Article 42 was seemingly to have been hurriedly executed.
The perception on the ground has been that Najib is given preferential treatment from the get-go despite the fact a remission of sentence does not mean acquittal.
If Najib is to be given a full pardon, many believe there will be a double whammy. - Mkini
MOHAMED HANIPA MAIDIN is a former deputy minister of law.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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