The Tale Of An Addendum

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The addendum remains steadfast as the Yang di-Pertuan Agong’s decree, unaffected by the uproar surrounding its alleged unconstitutionality.
Despite the protests and claims of legal overreach, the King has resolutely affirmed that the decree is indeed his will, rendering any objections little more than a futile resistance to the inevitable.
After all, when the monarch himself asserts his authority, the question of legitimacy becomes a mere formality, subordinated to the sovereign’s declaration.
Background to Article 42
The power of pardon, enshrined in Article 42 of the Federal Constitution of Malaysia, is widely regarded as a noble and essential expression of the nation’s commitment to mercy and justice.
Reserved exclusively for the King, this prerogative stands as a profound counterbalance to the rigid application of law, offering a touch of humanity and compassion in the face of otherwise unyielding legal frameworks.
Istana NegaraIt serves to temper the harshness of justice, allowing for phased pardons, conditional clemency, and even political rehabilitation where appropriate, offering the potential for redemption and reintegration.
In this context, the King’s authority to exercise this power is not simply a matter of legal formality; it is an embodiment of a broader principle of wise and compassionate governance.
Critics, however, have raised concerns, questioning the King’s prerogative to issue an addendum to an existing pardon order.
Yet such objections, while voiced with apparent fervour, fail to appreciate the broader scope of royal discretion. The King, as the ultimate guarantor of justice and mercy in the realm, is entrusted with the authority to interpret and refine his own decrees as he sees fit, within the parameters of the Constitution.
To suggest that the King’s issuance of an addendum undermines the intent of the original pardon order is to ignore the very essence of his role - one that allows for flexibility and responsiveness to evolving circumstances.
After all, a decree of mercy should not be shackled by rigid formalism, but rather, guided by the moral responsibility to ensure fairness and justice in ever-changing contexts.
Conference of RulersTherefore, the King’s right to amend, update, or refine his pardon orders through an addendum is not only legitimate but is, in fact, an extension of his sovereign duty to dispense justice in a manner that reflects the nuances of individual cases.
Any objections to this prerogative, ultimately, pale in comparison to the weight of the King’s constitutional and moral mandate.
Article 42(1) grants the King the authority to issue pardons, reprieves, respites, or commutations of sentences. This provision provides the King with considerable discretion in adjusting punishments.
Notably, it does not stipulate that a pardon must be a singular event. The idea of granting a pardon in instalments can be understood through the concepts of commutation and conditional pardons. Commutation refers to the act of reducing the length or severity of a sentence without fully erasing it.
This implies the possibility that an individual could receive a series of reductions over time, effectively leading to a gradual alleviation of their punishment. On the other hand, a conditional pardon permits an individual to serve part of their sentence under specific conditions, such as probation or house arrest.
Such arrangements can logically facilitate a phased return to full civil rights, suggesting a model where pardon-like benefits are dispensed incrementally.
Royal pardon - in instalments
The King is vested with the discretion to grant pardons without being bound to strictly predefined limits. This means that the interpretation of what constitutes a pardon can extend beyond merely reducing or extinguishing a sentence.
The potential for issuing additional conditions or stipulations through an addendum - such as house arrest, probation, or other modified forms of supervision - could be inherently constitutional, as long as they align with broader principles of justice and due process.
The provision acknowledges that clemency decisions must consider not just the letter of the law but the historical and social context of cases, providing flexibility in how justice is administered. This perspective allows for the addendum to be viewed as a legitimate tool in the exercise of clemency.
Former minister Mokhtar Hashim serves as a classic example of receiving a pardon in instalments. His appeal against the death sentence was rejected by the Federal Court on July 23, 1983. However, on March 2, 1984, the Pardons Board commuted his death sentence to life imprisonment. Eight years later, he was released from prison following a royal pardon.
Former minister Mokhtar HashimThe first pardon in 1984 transformed his death sentence into life imprisonment, while the second pardon, granted in 1991, was a full pardon issued by the King. Isn’t this process indicative of an instalment approach to pardoning?
The case of Mokhtar Hashim exemplifies a situation where successive pardons and their conditions illustrate the King’s ability to adapt the terms of punishment creatively. After initially being sentenced to death, Mokhtar received a commutation to life imprisonment and ultimately a full pardon years later. This layered approach demonstrates how the royal prerogative can evolve.
Former DAP supremo Lim Kit Siang’s release from detention under the Internal Security Act (ISA) in 1990 wasn’t labelled a pardon initially, yet his subsequent restoration of rights indicated incremental consideration toward restoring his political freedoms.
The case shows that while it wasn't a formal instalment, the process of reinstating political rights occurred in stages following the King’s clemency.
His Majesty’s exclusive discretion
The long-standing and consistently established legal position in Malaysia is that the power of pardon, as outlined in Article 42 of the Federal Constitution, is exclusively vested in the King.
The Supreme Court in Sim Kie Chon v Superintendent of Pudu Prison & Ors [1985] 2 MLJ 385 clarified that the role of the Pardons Board is merely advisory. The court further stated: “It is our considered view that the power of mercy is a high prerogative exercisable by the Yang di-Pertuan Agong or the Ruler of a State or the Yang di-Pertuan Negeri, as the case may be, who acts with the greatest conscience and care and without fear of influence from any quarter.”
His Lordship, Suffian LP, in delivering the judgment in Public Prosecutor v Lim Hiang Seoh [1979] 2 MLJ 170, remarked: “When considering whether to confirm, commute, remit, or pardon, His Majesty does not sit as a court; he is entitled to consider matters that courts, bound by the law of evidence, cannot take into account, and decides each case based on grounds of public policy; such decisions are solely within the purview of the executive. We cannot confirm or alter them; we have no jurisdiction to do so.”
Additionally, in Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64, the court held that it is not mandatory for the Agong to act on the advice of the Pardons Board concerning clemency matters.
Furthermore, in Datuk Seri Anwar bin Ibrahim v Mohd Khairul Azam bin Abdul Aziz and Another Appeal [2023] 2 MLJ 545, the court affirmed that the power to grant pardons is to be exercised exclusively and personally by the Agong, underscoring that such an exercise is not subject to judicial review.
This consistent legal interpretation reinforces the understanding that the power of pardon lies firmly in the hands of the King, free from external influence, and strictly within the realm of His Majesty’s discretionary powers.
Anwar’s pardon, sui generis without a Pardons Board
Similarly, the pardon granted to Anwar Ibrahim in 2018 reflects that the pardon was not merely a single, fixed event but a culmination of ongoing discussions regarding his political circumstances and public support for his release.
The subsequent arrangements made regarding his political rights post-pardon further highlight that the nature of clemency can indeed change in character, depending on context and prevailing conditions.
It is noteworthy that the Palace issued the letter granting a pardon to Anwar on May 16, 2018, although no cabinet had been formed following the 14th general election, and there was no federal territories minister at the time. The pardon was granted without the involvement of a Pardons Board, with His Majesty the King exercising his prerogative to grant the pardon independently.
Hence, the constitutionality of an addendum in the context of royal pardons can indeed be grounded within the framework of Article 42 of the Federal Constitution, supported by judicial precedent and evolving interpretations of justice.
Anwar’s pardon is a classic example of how modifications were made. The responsive nature of the Malaysian legal system exemplifies its capacity to address the complexities inherent in individual cases, allowing for modifications to clemency that align with societal values of rehabilitation and justice.
As the legal landscape continues to evolve, the potential for addendums to reflect a thoughtful approach to the exercise of the royal prerogative will strengthen the principles of mercy and equity under Malaysian constitutional law.
The argument that the Malaysian Constitution does not permit house arrest orders, and that no such precedent exists, overlooks the evolving nature of legal interpretations and the principles underlying restorative justice within the Malaysian legal framework.
Firstly, while the Constitution may not explicitly outline “house arrest” as a recognised form of punishment, it does provide considerable discretion to the King in matters of clemency under Article 42.
This discretion affords the possibility of imposing alternative forms of confinement that fall within the realm of rehabilitative justice. Such alternatives can include conditional pardons, which inherently allow for arrangements like house arrest, especially in cases where rehabilitation and reintegration are prioritised over punitive measures.
Evolution of pardon in Kit Siang case
Following his release from detention in 1990, Lim Kit Siang sought a royal pardon to restore his political rights, which had been revoked under the ISA. His application was not merely for personal redemption but also aimed at reinstating his capacity to engage actively in Malaysian politics.
The King, after considering the advice of the Pardons Board alongside the political landscape, granted Lim a pardon. This pivotal decision facilitated Lim’s return to politics and enabled him to resume his role as a prominent opposition figure. Could we now argue that this decision was unconstitutional?
Lim Kit SiangThe pardon granted to Lim in 1990 serves as a seminal example of how the royal prerogative to grant pardons operates within the Malaysian constitutional framework. It highlights the power dynamics at play between the monarchy and the political arena, demonstrating the King’s authority to influence political trajectories while adhering to constitutional mandates.
This case exemplifies the delicate interplay between the advice of the Pardons Board and the ultimate discretionary power afforded to the monarch, establishing a precedent for future clemency considerations in politically sensitive situations.
Ultimately, the Lim Kit Siang case underscores the importance of recognising the constitutional powers vested in the monarchy and the contextual nuances surrounding the exercise of clemency. It reinforces the notion that royal pardons can serve not only as instruments of justice but also as vital components of political reconciliation and restoration in Malaysia's complex socio-political landscape.
The ongoing evolution of how pardons are administered confirms the adaptability of the legal framework to meet the needs of a changing political environment.
As demonstrated by cases like Mokhtar’s, Lim’s, and Anwar’s, the exercise of this prerogative transcends mere judicial outcomes, influencing broader themes of political reconciliation, restorative justice, and public policy.
Revisiting the opposition’s stand in 2021
In September 2021, former attorney-general Idrus Harun stirred considerable controversy when he asserted that the King’s absolute power could be overridden if the legitimacy of a new prime minister needed to be tested by any party other than the monarch himself. Idrus argued that such a move would be inconsistent with the Federal Constitution.
This remark, concerning the vote of confidence in Parliament, was swiftly condemned by the opposition bloc which described it as “treasonous” to the King. They accused Idrus of defying the King’s explicit wishes, as the monarch had decreed that the new prime minister’s majority be tested in the Dewan Rakyat when Parliament reconvened.
Former attorney-general Idrus HarunFast forward to the present and we find the same political body strangely silent on the issue of non-disclosure regarding the addendum to a pardon order, a matter that, on the surface, appears to contradict the principles of transparency and constitutional propriety they so ardently defend.
One might wonder why they previously raised such a hue and cry over any perceived slight to the King’s authority, which is now notably absent in holding the current attorney-general to account.
Is this a case of political convenience trumping constitutional consistency, or perhaps an uncomfortable double standard?
The crux of the matter is that the earlier condemnation of Idrus for questioning the King’s authority seems at odds with their failure to challenge the secrecy surrounding the addendum. Shouldn’t the same level of scrutiny and accountability apply when matters concerning the King’s prerogative are at stake, regardless of political alignment?
The King, as a constitutional monarch, operates within a framework designed to ensure that his powers are exercised following the law, for the betterment of the nation. He is expected to remain above the political fray, refraining from active participation in partisan disputes.
The notion that the monarch should now descend into the political arena to defend his actions, whether related to a pardon addendum or any other royal decree - defies the very principles of constitutional monarchy. The expectation that the King should become embroiled in defending his own decrees would erode the impartial and apolitical nature that the monarchy is meant to uphold.
Former Yang di-Pertuan Agong Sultan Abdullah Sultan Ahmad ShahFurthermore, this raises an important point about the separation of powers within Malaysia’s democratic structure.
The monarch’s role, as outlined in the Constitution, is to provide guidance and governance under the law, not to engage in daily political battles. The King’s discretion in matters such as pardons and addenda is not merely a personal whim; it is an extension of his constitutional role and an exercise in the balancing of justice, compassion, and legal authority.
To demand that the monarch justify or defend such decisions in the public sphere is to undermine the very institution of constitutional monarchy itself.
If the same energy that was directed toward condemning the attorney-general for allegedly overstepping his bounds were applied here, there might be a more consistent and principled approach to upholding the integrity of the constitutional framework.
However, as it stands, it is clear that political motivations are at play, leaving the King’s prerogatives to be questioned when convenient, and ignored when inconvenient.
In defence of the King, it must be emphasised that his authority is not bound by the fluctuating whims of political factions. His role is to uphold the Constitution and to act in the best interests of the nation, regardless of the political tides.
Yang di-Pertuan Agong Sultan Ibrahim Sultan IskandarThose who would challenge his actions must do so within the proper constitutional channels, not by fostering selective criticism or demanding that he descend into the political fray.
The monarchy, as enshrined in the Constitution, must be allowed to operate without undue political interference, lest we risk compromising the very principles of governance that have sustained the nation.
Conclusion
The discussion surrounding phased pardons and conditional clemency, such as house arrest, highlights the evolving and flexible nature of Malaysia’s legal framework.
While this flexibility is crucial to ensuring justice and fairness in an ever-changing world, it also necessitates a commitment to transparency, especially when it comes to the conditions or addenda tied to royal pardons.
The non-disclosure of the addendum to the pardon order has, understandably, sparked a range of concerns about due process, public accountability, and the possible abuse of institutional power.
To question why the addendum was not disclosed earlier is, of course, a valid enquiry, one that touches on the very essence of public trust and transparency. However, instead of looking at the non-disclosure, some quarters too hastily accuse the King of nefarious intent and suggest that the non-disclosure is a sign of malfeasance, which is both premature and, dare I say, profoundly misguided.
The monarch, vested with the power to issue pardons and addendum in accordance with the law, acts within a framework that, at its core, is designed to ensure justice, not to cater to the whims of political factions or satisfy the public’s every curiosity.
Indeed, it is not for the public to demand an explanation for every nuance of a royal decree, nor is it the duty of the monarch to bare every decision to the scrutiny of those whose interests may not align with the higher goals of governance and justice.
When the King exercises his prerogative to issue an addendum to a pardon order, it is an extension of his constitutional authority, not a move to be dissected by the masses for every potential political angle.
The insistence on transparency in this case, particularly the demand to reveal the addendum’s details, reflects a narrow and, frankly, naïve understanding of the role of the monarchy.
The King’s decisions are not beholden to the whims of popular opinion, nor are they expected to meet the approval of every political group that may be quick to cry foul at anything that does not serve their agenda.
Why, then, should the addendum be questioned? Is it not possible that the King’s actions are motivated by a deeper concern for justice, a sensitivity to the complexities of individual cases, and an adherence to constitutional principles that cannot always be reduced to the transparent, bite-sized explanations the public demands?
Surely, the King, as the ultimate guardian of the nation’s laws, is not required to explain himself at every juncture, particularly when his decisions are grounded in the Constitution itself.
And yet, we hear the clamour for answers: What were the hidden motives behind the addendum? Does the King have the power to issue an addendum? Could there be something untoward lurking in the shadows?
These questions are also deeply cynical. They suggest, perhaps, that the King’s actions are motivated by something less noble than justice, that there is some underhanded agenda at play. But before jumping to such conclusions, let us remember that the King’s prerogative to issue an addendum is neither capricious nor reckless. It is, by its very nature, an extension of royal discretion, which the Constitution allows, and which is designed to serve the long-term stability and integrity of the nation.
To claim that there are hidden motives without any concrete evidence is to indulge in speculation that does little to uphold the principles of governance.
The real issue here is not the King’s right to issue an addendum, but rather the selective interpretation of constitutional prerogatives that conveniently align with political convenience. The non-disclosure of such an addendum, while understandably frustrating to some, does point to a scandal waiting to be uncovered.
Ultimately, the nation must ask itself whether it truly understands the nature of a constitutional monarchy. In this system, the King is not a puppet of public opinion nor a pawn in political games. He is an arbiter of justice, a figure who acts in accordance with his duty and responsibility to the nation - not to satisfy every faction’s demand for transparency.
The insistence on dissecting the addendum speaks less to a concern for due process and more to a deeper, and perhaps less noble, desire for political gain or influence.
The King’s prerogative to issue an addendum is a rightful and constitutional power, and any suggestion that this is somehow suspect merely reflects the cynical and selective approach to governance that too often pervades the political discourse.
Let us not forget that true justice, as embodied by the monarchy, often requires actions that transcend the immediate and the obvious, those which may not always be easily understood, but are always undertaken with the integrity of the nation in mind.
“Mercy is not the subject of legal rights. It begins where legal rights end.”
- Lord Diplock
- Mkini
DAVID GURUPATHAM has been in legal practice for 30 years with extensive experience in dispute resolution and corporate advisory services. He also actively participated in various committees of the Bar Council and state bar committees.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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