“To show men that crimes can be pardoned, and that punishment is not their inevitable consequence, encourages the illusion of impunity."
Cesare Beccaria, Italian Philosopher
The University of Malaya Law Society (UMLS) would like to express our grave concerns over the Pardons Board’s recent announcement to grant a partial pardon to former Prime Minister Dato’ Seri Najib Tun Razak, following his Federal Court conviction in the SRC International Case. This decision, devoid of any public explanation, will see Najib's original 12-year imprisonment sentence and RM 210 million fine reduced to 6 years and RM50 million, respectively.
In response to widespread public concern and the potential impact on Malaysia's political and legal landscape, UMLS would like to urge the Pardons Board to disclose the rationale behind their decision to grant a partial pardon. This is in line with the MADANI’s government pledge to uphold transparency and accountability. Doing so would reinforce public confidence in our legal system’s ability to mete out justice.
Overview
Dato’ Seri Najib Tun Razak (“Najib”), who served as Prime Minister of Malaysia from 2009 to 2018, was convicted on seven charges of abuse of power, criminal breach of trust, and money laundering in relation to RM42 million belonging to SRC International Sdn Bhd. Despite maintaining his innocence throughout the proceedings, his appeals were consistently dismissed by the Courts, highlighting the severity of the charges concerning the misappropriation of funds. Shortly after beginning his sentence at the Federal Prison of Kajang, Najib applied for a royal pardon. He then filed for another appeal in April 2023.
Traditionally, pardon applications are only heard after a prisoner has served one-third of his sentence. This one-third condition, although not a hard and fast rule, is a matter of convention aimed at managing the volume of applications to be considered at one time. Nonetheless, this convention was not adhered to in Najib’s case leading to immense criticism. For example, the Bar Council pointed out that public figures such as Dato’ Seri Anwar Ibrahim, Mokhtar Hashim, and Harun Idris had served significant portions of their sentences before receiving royal pardons. In contrast, Najib had been in prison for less than a month before seeking a pardon. Additionally, there seems to be no clear exigent reasons presented to justify the hastening of his application.
The Controversy
In explaining the basis of consideration for a pardon application, the current Prime Minister, Datuk Seri Anwar Ibrahim said the person’s life journey, prison experience, and contributions to the country would be taken into consideration. In Najib’s case, he argued that it was his deeds to the country that ultimately enabled him to be eligible for pardon.
Whether this remains a valid reason is debatable, as prominent lawyers have argued that “the purpose of a pardon application is to demonstrate that the relevant prisoner is deserving of clemency because they accept their wrongdoing, have learnt their lessons and turned over a new leaf. However, none of these essential pre-conditions to a proper pardon application exists in Najib’s case”.
Furthermore, the Bar Council, via their press statement on 6 February 2024, criticised the significant sentence reduction as grossly disproportionate as it is not reflective of the crime's severity.
Our Stance
Notably, the UM Law Society takes cognisance that the decision to grant pardon remains a sovereign prerogative as encapsulated under Article 42 of the Federal Constitution (Chiow Thiam Guan & Ors. v Superintendent of Pudu Prison & Anor [1983] 1 CLJ 278). This is based on the premise that mercy is not a legal right. It begins where legal rights end. To render a judgment is a judicial function. To carry the judgment into effect is an executive function. Hence, to grant a sentence reduction by an act of clemency is an exercise of executive power that abridges the enforcement of the judgment but does not alter it qua judgment. Therefore, in exercising his powers, the YDPA is carrying out a purely discretionary act, as contrasted with the exercise of a quasi-judicial function.
Nonetheless, while the UMLS deeply respects the YDPA’s authority to exercise mercy in accordance with his constitutional prerogative, we nevertheless wish to delve into the foundation of this issue from an academic perspective by encouraging the Pardons Board to provide a comprehensive justification for the overall consideration in deciding to grant a partial pardon to Najib. We acknowledge that the pardon process is a highly confidential affair, and maintaining such confidentiality is crucial. However, given that this involves a large-scale financial crime concerning millions of taxpayer money and is of considerable public interest, we believe that the articulation of a reasoned decision would help prevent irresponsible politicians from exploiting this issue to garner political points, thereby ceasing unnecessary political debates.
Primarily, this approach encourages the preservation of transparency and accountability. Transparency is achieved here by rendering the decision-making processes more visible and comprehensible to the parties involved, as well as the members of the public. Meanwhile, accountability is secured by obliging decision-makers to account for their actions through the justification of their decisions. Hence, the provision of reasons for decisions in cases that attract high public interest and involve prominent figures is crucial, especially against the backdrop of a common perception that politicians frequently escape accountability. A well-reasoned decision reinforces public confidence in the legal system's integrity and deters arbitrary or whimsical decision-making.
Ultimately, we believe that a detailed explanation by the Pardons Board would not only reflect a sense of credibility in the administration of justice, but also safeguard the public interest from the political atrocity that arises upon making an unfavourable decision. Hence, the public is insulated from being left lingering in the dark and exploited by politicians leveraging ambiguities for their gain.
In short, we echo the words of Ashok Bhushan, the former judge of the Supreme Court of India, in that “although justice must be tempered with mercy, it cannot be substituted for mercy,”
Disclaimer:
The views and opinions expressed in this press statement do not necessarily reflect the official position of the Faculty of Law, Universiti Malaya and Universiti Malaya respectively. For the sake of conciseness, the UM Law Society has only selected a few issues to elaborate on, which may not represent the whole picture of the incident. The UM Law Society only intends to provide our collective view on this issue from an academic legal perspective.
UM Law Society (UMLS) 23/24
15 February 2024
Email: lawsocietyum@gmail.com
Website: www.umlawsociety.com
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