Over the past week, the air waves have been filled with outrage over a decision of the Pardons Board. Many have asked me for my point of view. Here’s my attempt at an answer.
The press statement
On February 2, 2024, the Pardons Board put out a statement (attached). It was printed on the letterhead of the Prime Minister’s Department. It did not bear the name of any person as issuer. The veracity of the statement was not contested by the Prime Minister’s Department.
The statement informed the public that the Pardons Board convened on 29 January, and deliberated on five pleas for pardon, including one from “YBhg. Dato’ Sri Mohd Najib bin Tun Haji Abdul Razak.” It stated that its meeting was chaired by the then Yang diPertuan Agung (YdPA).
There are some conflicts in the statement’s wording. I’ll ignore them.
The gist of the statement is that the Board, after considering “opinions and advice,” agreed to (1) reduce Najib’s jail term from twelve years to six years, and (2) reduce his fine from RM210million to RM50million.
The statement also said that if Najib pays the RM50million, he would be released on 23 August 2028. And if he doesn’t pay the RM50million, he would be released one year later, on 23 August 2029.
We know from the Prisons Act that prisoners found guilty of offences such as those Najib was charged with may qualify for release on parole after completing half their prison sentences.[1]
Therefore, the outcome of the Pardons Board decision appears to be that if Najib pays the RM50million, he will likely be freed on 23 August 2025. On one reading, if he doesn’t pay the RM50million, he will likely be freed on 23 February 2026.[2]
Though freed, he will have a criminal record – and will be barred for five years from contesting for a seat in Parliament.[3]
Those are the facts, as best as I can glean from the statement and from comments published by various authorities.
My response
Lawyers have expressed conflicting views over whether the YdPA has the sole discretion to decide the outcome of a plea, or whether he acts on advice of designated others. I’ll not touch on this.
I hold fast to Article 42(1) of the Federal Constitution, which reads “The YdPA has power to grant pardons, reprieves and respites …” And Article 8(1) which reads “All persons are equal before the law and entitled to the equal protection of the law.”
As a loyal citizen, I’m duty bound to uphold justice, equality, and mercy. As a Christian and Lutheran, I recall the words of Martin Luther in his commentary on Psalm 101.
The psalm begins with the words “I will sing of your love and justice.” Verse 7 says “No one who practices deceit will dwell in my house; no one who speaks falsely will stand in my presence.”
Luther wrote his commentary in 1534. It was a time of discord, of debates on mercy and justice. Just like our present time. He wrote:
If there is only mercy and the prince lets everyone milk him and kick him in the teeth and does not punish or become angry, then not only the court but the land, too, will be filled with wicked rascals; all discipline and honour will come to an end. On the other hand, if there is only anger and punishment or too much of it, then tyranny will result, and the pious will be breathless in their daily fear and anxiety.[4]
Luther was never reluctant to express, explicitly, his views about what leaders should do. I write not as a “Luther,” but as a breathless one!
I’m shocked that the Board has not published any guidelines as to who may apply for pardon and has nowhere said what the basic criteria are.
I’m shocked that persons who apply to the Board for a pardon are not required to admit guilt and to promise that they will never again commit the offences of which they have been convicted by courts of law.[5] According to a report in the New Straits Times on 7 February,
“Shafee [Najib’s lawyer] said Najib’s application for pardon is not anchored on any fact of admission of guilt.
“They are anchored on the fact that he is not guilty and has never been given a fair trial and appeal, especially at the Federal Court.”
Also on February 7, Philip Koh, a senior lawyer who’s well-versed with the Federal Constitution, wrote in the Malay Mail:
“It may well be that [constitutionally,] a successful petitioner for a Pardon may still assert his innocence.”
I’m shocked that a person who’s awaiting trial on other charges may be pardoned by operation of the Board. (In case you didn’t know, Najib’s awaiting trial on three more charges, one of which may result in him being ordered to pay a fine of over RM30billion. Yes, billion with a ‘b’.)
I’m shocked that a person can repeatedly apply to the Board for a pardon, with no prescribed interval between applications.
This is the outcome of my study of the Board’s statement:
- The Board should have been clearer in the wording of its decision.
- The Board should not have addressed Najib as “YBhg Dato’ Sri.”
- The statement should have been signed by a named individual.
- The board should have issued similar statements concerning the other four pleas which it considered during the same sitting.
- In future, the board should entertain pleas for pardon only if:
– The convict admits to the crime of which he was convicted.
– The convict expresses remorse publicly for his crime.
– The convict has served at least one third of his sentence. - The Board should reveal, at least in summary form, the opinions and advice considered in the process of making the decision.
I hope Christian leaders will join the discussion. I hope the new YdPA will respond to the voluminous expressions of public outrage by initiating a reform of the pardons process.
Peace be with you.
[1] See section 46E: Eligibility for Parole.
[2] Due to ambiguity in the Board’s statement, it’s hard to be sure about this second date.
[3] As stipulated in the Federal Constitution, Article 48, clauses 1(e) and 3. Non-parolable offences include cultivating drug plants, firearms possession, kidnapping, manslaughter, sexual crimes.
[4] Luther’s Works 13:152-53. (Cited in the blog Historia et Memoria.)
[5] It seems likely that current Prime Minister Anwar Ibrahim did not confess guilt and express remorse when he applied for – and received – a pardon in 2018.
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