Has Mercy Robbed Justice From The Nation

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The Malaysian Bar is deeply disappointed by the Pardons Board’s decision on Feb 2 to reduce former prime minister Najib Abdul Razak’s prison sentence and fine following his conviction by the courts in the SRC International case.
The case, which saw Najib being hauled before the judiciary to answer for his egregious crimes against the nation, took four long years across all levels of the superior courts.
It began on July 4, 2018, when he was first charged in the Sessions Court, and ended on Aug 23, 2022, when the Federal Court upheld Najib’s conviction and sentence, as originally pronounced by the High Court.
Much judicial time, taxpayers’ expenses and costs were expended to ensure justice was meted out by the judiciary in imposing punishments that fit the crimes committed by Najib.
The apex court’s decision, which should have brought an end to all possible avenues of appeal for Najib, represented more than just a victory for Malaysians.
It was a message to the world that Malaysia was not afraid to bring to heel all those who break the law, regardless of their station or status in life.
It was a message that Malaysia was committed to good governance and upholding the rule of law - that those who dared to make the citizens suffer for monies laundered to the detriment of the nation must pay for their crimes and be continually deterred from committing such crimes.
It was a message that perpetrators of such crimes against the nation should not be spared so easily for the huge debts incurred that would eventually be passed on and undertaken by the citizens of Malaysia.
It was a message that brought credibility to the administration of justice in the country and to the judiciary.
Betrayal of power, trust as PM
The board’s recent announcement puts enormous doubt in the eyes of Malaysians as well as the world and the Madani government’s commitment to upholding the rule of law and eradicating corruption.
It cannot be emphasised enough that the crimes committed by Najib are unlike other crimes, due to the rippling effect it has on Malaysians.
Each citizen took it as a personal betrayal of the power and trust entrusted to Najib as a prime minister, when he abused his power and pilfered from the nation’s coffers - monies that should have been used to develop the country for the benefit of Malaysians.
The Bar asserts that the executive has lost its moral authority to address the public and to purportedly defend their fight against corruption when it is abundantly clear that despite the entire nation being embarrassed and suffering from the crimes committed by Najib, singular and preferential treatment was given to him.
The reduction of Najib’s sentence and fine was abhorrently disproportionate to the gravity of the crime he committed.
It is undeniable that the Yang di-Pertuan Agong would be fully aware of the doctrine of separation of powers, which determines three branches - the executive, legislature, and judiciary - but it should also be noted that one branch may overshadow another, or two branches may necessarily overlap.
Such is the situation that has come to pass, where the decision of the courts to punish Najib with a prison term of 12 years and a fine of RM210 million, was disproportionately reduced to a prison term of six years and a fine of RM50 million.
The effect of this reduction greatly diminishes the due process and administration of justice in Malaysia, as well as the exemplary work done by the judiciary, lawyers, prosecutors, and witnesses involved in the SRC International case.
The Bar underscores that there must be a full measure of recognition towards the legitimacy of the decisions of the judiciary and the justice meted out by the courts.
Pardons not part of Agong’s ‘discretionary’ powers
It is recognised that the king’s exercise of power is mandated under the Federal Constitution. Such “power” must be distinguished from “discretion” as articulated under Article 40 of the Federal Constitution.
Where there is a “power”, the king acts with advice, on advice, and “shall accept in accordance with such advice”.
In the light of Article 40(1A), the Bar takes the position that the granting of a pardon is not a discretionary power and must be exercised on advice.
Such being the case, the issuance of the announcement under the Prime Minister’s Department is rather telling of the executive’s role in the board for the king to accept the advice and act accordingly under the Federal Constitution.
In contrast, matters in which the Agong has “discretionary” powers are restricted under Article 40(2), and pardons do not form part of the Agong’s “discretionary” powers.
The Bar also finds it equally disturbing that the coalition government has chosen to curb the freedom of speech as guaranteed in the Federal Constitution, by choosing to silence dissent using the convenient excuse that the board’s announcement concerns 3R (religion, race and royalty) issues.
In reality, the overwhelming outcry by Malaysians is an exercise of the right to express their utmost dissatisfaction that the justice they sought by participating in the 2018 and 2022 general elections, all came to naught as a result of the decision to reduce Najib’s sentence.
As the Bar previously highlighted, Article 42(1) of the Federal Constitution empowers the king 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.
Indeed, in the case of “Superintendent of Pudu Prison & Ors V Sim Kie Chon [1986] 1 MLJ 494”, the Supreme Court ruled that the Agong’s power to pardon under the Federal Constitution cannot be justiciably reviewed.
The case of “Juraimi bin Husin v Board of Pardons, State of Pahang & Ors [2002] 4 MLJ 529” further affirmed that the king’s decision to pardon or otherwise is not subject to judicial review.
Whether the apex court will change its stance remains to be tested.
DPM Ahmad Zahid HamidiReforms needed
The Bar observes that how the pardon process is carried out is devoid of consistency. Najib began serving his sentence on Aug 23, 2022, some 17 months before the Pardons Board issued its statement on Feb 2, 2024.
This is contrasted with the case of Affandi Abdul Rahim, who spent over 20 years languishing in prison after being sentenced to life behind bars in 2001 for a firearm-related offence, which did not involve the loss of life nor billions of ringgit from the coffers of the country affecting all citizens.
Yet, there have been no updates on Affandi’s case that the Bar is aware of. What is the justification behind this difference in treatment?
The recent announcement highlights the need for reforms to our institutions, to provide safeguards and re-establish its credibility, specifically concerning the composition of the Pardons Board.
Article 42(5) of the Federal Constitution provides that the board consists of, among others, the attorney-general (or his/her representative) and the chief minister - who in the case of the Federal Territories, is the Federal Territories minister.
To prevent the influence of the executive and to ensure independence in the pardon process, it is necessary to reduce, if not eliminate, the role of the government in the board.
To this end, an amendment is required to remove the influence of the AG and the Federal Territories minister or the chief ministers in the board, and to appoint independent persons to the board to ensure inclusivity in terms of expressions from the public.
A further reform to the board would be to introduce safeguards that ensure such power is exercised sparingly, as well as within clear boundaries and established circumstances or categories. Remorse and repentance surely must be a substantial part of such an exercise.
To date, after having served one year and five months in prison, Najib has yet to show remorse, any form of repentance, nor apology for committing the offences of criminal breach of trust, abuse of power and money laundering, for which he was convicted.
The Bar unequivocally insists that the deterioration of due process cannot go unchecked and unimpeded. It is alarming that this announcement comes in relatively close succession with another controversial high-profile case, namely Deputy Prime Minister Ahmad Zahid Hamidi’s discharge not amounting to an acquittal in the Yayasan Akalbudi case.
Law in shackles
The Bar cannot stress enough that a similar discharge must not recur for Najib’s ongoing 1MDB prosecution and two other ongoing cases, failing which it will render the government’s efforts to combat corruption hollow and meaningless.
It will also send a message that political power holds the rule of law in shackles.
The announcement has thrown light, on a large scale, on the opaqueness of the entire pardons process, and is indeed the clarion call needed to push for reforms to the board and its processes.
While it is true that justice must be tempered with mercy, it is also true that mercy must not rob justice. - Mkini
KAREN CHEAH YEE LYNN is president of the Malaysian Bar.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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