A COALITION of over 60 civil society organisations (CSOs) has demanded that the government disclose the attorney-general’s written opinion to the Pardons Board in relation to Datuk Seri Najib Abdul Razak’s pardon application.
Similar calls have been by different parties.
Let’s not lose sight of the principle, which was reiterated a year ago in the case of Datuk Seri Anwar bin Ibrahim v Mohd Khairul Azam bin Abdul Aziz and another appeal [2023]. Judge of Court of Appeal Lee Heng Cheong, who delivered the judgement of the court in that case, referred to Article 42(1) and Article 181 of the federal constitution and said: “The long and consistent established position of the law in Malaysia is that the prerogative power of the [Yang di-Pertuan Agong] … is non-justiciable.”
The learned appellate judge referred to no less than five apex court decisions on the prerogative power of the YDPA.
The last of the decisions is in the recent case of Letitia Bosman v PP & Other Appeals [2020] where the federal court cited with approval its predecessor Supreme Court’s decision in the case of Sim Kie Chon v. Superintendent of Pudu Prisons & Ors [1985] where the court stated: “The power of pardon provided for under Article 42 of the federal constitution is… a prerogative of mercy exclusively vested in the YDPA or ruler of any state in Malaysia.”
The so-called decision of the Pardons Board is a decision under Article 42 of the federal constitution. It is a decision of the Yang di-Pertuan Agong (YDPA) himself, exercising a power of high prerogative of mercy.
Again, reference can be made to the case of Sim Kie Choon v Superintendent of Pudu Prison & Ors where the then Supreme Court described the power as follows: “The power of mercy is a high prerogative exercisable by the Yang di-Pertuan Agong or the Rule 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.”
The Court of Appeal in Datuk Seri Anwar Ibrahim v Kerajaan Malaysia & Anor had the occasion to describe the institution of the YDPA as follows: “The institution of the YDPA as a constitutional monarch and supreme head of the federation was created by the [federal constitution]: Art 32. Although the YDPA is the formal head of the executive branch, the YDPA is required to act on the advice of the cabinet or any minister authorised by the cabinet: Arts 39 and 40.
“There are, however, certain exceptions under the [federal constitution] which provide that the YDPA may act in his personal discretion — notably, these include: (i) the appointment of the prime minister (Art 40(2)(a)); (ii) the withholding of consent to a request for dissolution of parliament (Art 40(2)(b)); (iii) the proclamation of emergency (Art 150(1)); (iv) the requisition of a meeting of the Conference of Rulers concerned solely with their privileges, position, honours and dignities (Art 40(2)(c)); and (v) the prerogative of mercy (Art 42).” (Emphasis added)
The coalition refers to Article 42(9) of the federal constitution which specifies: “Before tendering their advice on any matter, a Pardons Board shall consider any written opinion which the attorney-general may have delivered thereon.”
The Court of Appeal too referred to the provision and said: “Article 42(9) of the federal constitution does not make it mandatory for the AG to render a written opinion.”
The process before the Pardons Board is a highly private process that even the applicant has no right to see the materials which would be before the board.
Let’s have trust in the process where the YDPA acts with the greatest conscience and care and without fear of influence from any quarter. – The Vibes, February 4, 2024
Hafiz Hassan is a reader of The Vibes
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