What lies ahead for Najib?

Vol 2 No 29 | Sept 2022

Your Editor, Jamari Mohtar, discusses what’s next for jailed former premier, Datuk Seri Najib Razak and the various options available to him.

On Aug 23, the Federal Court dismissed the final appeal of former premier Datuk Seri Najib Razak in the SRC International case, and unanimously upheld both the conviction and sentence passed by the High Court.
Earlier on Dec 8 last year, the Court of Appeal had also unanimously upheld both the conviction and sentence passed by the High Court.
The High Court, on July 28, 2020, had sentenced Najib to 12 years’ imprisonment and a RM210 million fine.
After the Federal Court’s verdict, the right to appeal ends because of the simple principle of how there must be finality in decisions. Hence, Najib served his first day in jail on Aug 23.
However, there is still one option available to the former premier to challenge the court’s decision while in jail, and that is by applying for a judicial review.
Under Rule 137 of the Rules of the Federal Court 1995, the apex court is granted inherent power to, among others, review previous decisions on grounds of injustice and abuse of process.
The rule specifically states: “For the removal of doubts, it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court.”
But judicial review, like an appeal is not automatic. Najib’s counsel will have to file an application to the court to review his case and prove that there was a breach of natural justice during the legal process.
The Federal Court will only consider reviewing a case if it is satisfied that the applicant has suffered a serious miscarriage of justice. Should it decide in Najib’s favour, the case will then be reheard before a different panel.
However, a review will only be considered in very exceptional cases with history showing that there is a very slim chance of the court even accepting an application.
Whether Najib’s counsel applies for a judicial review or not, what happens then to his position as a member of parliament?
Article 48(1)(e) of the constitution stipulates that any MP who is convicted of an offence and sentenced to prison for not less than a year will lose his Parliament membership.
However, despite Article 48(1)(e), his position as an MP remains intact for as long as his counsel makes the application for a judicial review within 14 days after the apex court has dismissed his appeal, i.e. by September 6.
But how long will he still be an MP, supposing his counsel applies for a judicial review by September 6?

He will remain as an MP behind bars until 14 days have elapsed after the judicial review is disposed of by the court, as a judicial review is part of a court proceeding, just like an appeal.
What this means is Najib will lose his MP-ship in 14 days after the judicial review is disposed, and the review is not in his favour.
This is in line with Article 48(4b) of the Federal Constitution which states that “if within the period of fourteen days specified in paragraph (a) an appeal or any other court proceeding is brought in respect of such conviction or sentence, or in respect of being so convicted or proved guilty, as the case may be, the disqualification shall take effect upon the expiry of fourteen days from the date on which such appeal or other court proceeding is disposed of by the court.”
According to Associate Professor Abdul Rani Kamaruddin, a law lecturer at the International Islamic University Malaysia, in a situation where Najib’s counsel does not apply for a judicial review or the judicial review applied does not end in his favour, the next course of action for Najib is to apply for a royal pardon.
All individuals found guilty and sentenced are entitled to seek a royal pardon under Article 42(1) of the Federal Constitution, which states:
“The Yang di-Pertuan Agong has power 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; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.”
“But again the entitlement to seek a royal pardon is not automatic. Najib will have to apply for it within 14 days after his appeal was dismissed by the Federal Court, otherwise he would lose his MP-ship.
“Or if he applied for a judicial review and the outcome is not in his favour, he has 14 days after the disposal of the judicial review to apply for a pardon in order to retain his MP-ship,” said Professor Rani.
This is spelt out in Article 48(c) of the Federal Constitution, “if within the period specified in paragraph (a) or the period after the disposal of the appeal or other court proceeding specified in paragraph (b) there is filed a petition for a pardon, such disqualification shall take effect immediately upon the petition being disposed of.”
In other words, the case of a pardon is different from an appeal or judicial review in that the disqualification as an MP is immediate upon the petition being disposed of, whereas in the case of an appeal or judicial review, the disqualification takes place 14 days after the appeal or judicial review is disposed of.
The only similarity with respect to retaining the status of a MP is all these must be applied within 14 days i.e. the application for an appeal to the Court of Appeal must be made within 14 days after conviction if a convicted MP is not to lose his MP-ship.
The same goes for an appeal to the Federal Court, which must be made within 14 days after the Court of Appeal upholds the verdict of the High Court for a convicted MP to retain his status as an MP.
In similar vein, an MP found guilty and sentenced must apply for a judicial review within 14 days after the Federal Court has dismissed his appeal, if he is to retain his status as a MP, and a petition of pardon in turn must be made within 14 days after the outcome of the judicial review is not in favour of the MP concerned.

Of course if the MP concerned does not want to apply for a judicial review, then he has 14 days to apply for a pardon after the Federal Court has dismissed his appeal, if he wants to retain his status as a MP.
If all these are difficult to grasp, let’s then assume Najib applies for a pardon by Sep 6 (i.e. within 14 days after the Federal Court’s verdict), then he retains his MP-ship for as long as the pardon is not disposed of.
Assuming the pardon process takes three years to complete, then for three years Najib will be an MP while in jail.
But the clincher lies in when the current Parliament will be dissolved. We know that Parliament will automatically dissolve itself on July 16 next year, if it is not dissolved earlier.
So whatever options Najib decides to take to retain his MP status, in the current situation he will be a MP only for a maximum of about less than a year from today or lesser still should Parliament be dissolved earlier than July 16 next year.
Can Najib take part in GE 15 while in jail? He can’t because by virtue of Article 48(5) of the Federal Constitution, which states that a conviction is enough to disqualify an MP “for the purpose of nomination, election or appointment of any person to either House of Parliament”, Najib has already been disqualified from taking part in GE15.
But if the petition of pardon is disposed of in Najib’s favour before July 16 next year, and assuming GE 15 takes place after the petition of pardon is disposed of, then of course Najib can take part in GE 15.

Giving out royal pardons by the Yang di-Pertuan Agong is simply based on his standing as a King that gives him such powers.
The King simply decides who and when and how he wants to give out royal pardons, which implies that the Agong does not act in a judicial capacity because he is not a judge when giving out royal pardons.
Hence, he has more room to take things, which the courts cannot take into account. When finding guilt and passing sentences, for instance, the courts have to act in accordance with set principles and based on evidence but the Agong can take this one step further and act in the overarching interest of justice, public interest, and conscience.
In essence, the royal pardon is simply a vestige of the powers of the monarchy from the olden days when the kings were all powerful. It’s also present in other systems of governance as well, such as the power for a US president to grant a presidential pardon given through the US Constitution.
The effect a pardon has is to remove all legal punishment for the offence and remove any disqualifications. If you are confused as to what this means, it just means that you no longer have to sit through your 12 years as a prisoner and if the prison sentence prevented you from anything before, it no longer has that effect today.
In exercising the executive power to grant a royal pardon, the Yang di-Pertuan Agong is required to consider the advice of the designated consultative body, the Pardons Board.
Article 42(5) of the Federal Constitution establishes a Pardons Board for each State as well as one for the Federal Territories.
For the Federal Territories, the Pardons Board consists of the Attorney-General (AG) or his representative; the Federal Territories Minister; and not more than three other members appointed by the King.
The three members above cannot be members of Parliaments. They are appointed for a term of three years but are eligible to be reappointed.
The Pardons Board is to be presided over by the Yang di-Pertuan Agong and must meet in his presence.
The Pardons Board is also required, under Article 42(9) of the Federal Constitution, to consider any written opinion, which may be given by the AG before tendering its advice to the King to consider.
While the Pardons Board is required by the Federal Constitution to tender its advice to the King, case law suggests that the decision is personal to the King and therefore the advice of the Pardons Board need not necessarily be heeded.

There appears to be two types of pardons – a conditional pardon, and an absolute pardon also known as a free or full pardon.
Conditional pardon relates to a situation where the sentence is substituted with a lesser sentence, for example, a death sentence being commuted to life imprisonment.
A free or full pardon extends beyond merely the acquittal of punishment and operates to purge the offence so as to clear the party from the infamy and all other consequences of his crime.
The effect of a free pardon is to clear the person from all consequences of the offence for which it is granted, and from all statutory or other disqualifications following upon conviction, but not to remove the conviction.
But there are some who make a distinction between a free pardon and a full pardon.
While the Federal Constitution refers to a free pardon in several provisions, it does not use the term full pardon at all.
One instance where the term free pardon is used in the Federal Constitution is in Article 48(1)(e) on the disqualification for membership of Parliament.
A free pardon is required for one to avoid being disqualified under that provision by reason that the person had been convicted of an offence and sentenced to a term of imprisonment of “not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon.”
This was being interpreted as only a free pardon will enable one from being disqualified, and not a full pardon.
But proponents of the distinction between full pardon and free pardon fail to explain what then constitute a full pardon.
When PKR president, Datuk Seri Anwar Ibrahim, was given a royal pardon in 2018, the effect of the pardon granted to him was called into question during the Port Dickson by-election.
Anwar’s eligibility to contest in the by-election was challenged by Noraziah Mohd Shariff, a voter in the Port Dickson Parliamentary Constituency, on the ground that Anwar had only received a full pardon whereas Article 48(1)(e) of the Federal Constitution requires a person to receive a “free pardon” to avoid being disqualified under that provision.
It would appear that the question as to whether the royal pardon bestowed upon Anwar tantamount to a “free pardon” would depend on the terms of the pardon granted by the Yang di-Pertuan Agong.
Unfortunately, this issue remains a moot point as the case was struck out by the High Court due to Noraziah’s failure to attend Court on the date fixed for case management.
According to legal expert Hafiz Hassan both free pardon and full pardon are one and the same thing and this can be seen in the judgment of Watkin LJ in R v Secretary of State for the Home Department, ex parte Bentley[1993].

This English case concerns an application for a judicial review on the exercise of the royal prerogative of mercy by the Home Secretary.
After hearing submissions from the parties, the court noted that the grant of a free pardon should be reserved for cases where it could be established that the convicted person was morally and technically innocent and that the policy of confining the grant of a free pardon to such cases had been followed by successive Home Secretaries for over a century.
In deciding to look at the matter afresh, Watkins LJ, who delivered the judgment of the court, said: “We propose to set aside any question of a free (or full) pardon and look at the matter afresh.”
Although the power to pardon is commonly described as a royal pardon, it is not always the case as the Yang di-Pertua Negeri of Sabah, Sarawak, Penang and Malacca are not of royal lineage.

Read more on the SRC International case, disqualification as an MP and royal pardon:

Najib Razak’s final statement in court

Najib fails in final SRC International appeal, as Federal Court upholds conviction and sentence

Najib goes to jail today

Grounds of judgement for Najib’s SRC final appeal

Ex-PM to prisoner: Najib Razak’s SRC International case

“Tracking back the jailing of an ex-PM to where it all began: with Muhyiddin”

Najib can apply for royal pardon; needs to serve jail time first: Lawyers

Najib’s jailing and the ABCs of clemency

A free pardon is a full pardon — Hafiz Hassan

No difference between a ‘free’ and ‘full’ pardon

Delinking the appeal process from the disqualification of an MP

With four 1MDB trials to go, Najib faces possibly decades behind bars

On Sep 3, Special functions minister Datuk Dr Abdul Latiff Ahmad has given his statement to the police over PKR deputy president Rafizi Ramli’s claims on the littoral combat ship (LCS) project.
“I want to stress that Rafizi is a liar who has slandered me and my family solely for his political interests,” he said in a brief statement.
Latiff reiterated that he would continue to cooperate with the authorities in their probe into the matter.
Rafizi was the first to allege wrongdoing against Latiff that the latter had a wife who was linked to two companies involved in the misappropriation of funds in the LCS project.
This refers to Rafizi’s naming of a woman, Zainab Salleh, mentioned in a forensic audit report on the project.
The RM9 billion LCS project for the navy has come under scrutiny for its delay in delivery.
Putrajaya had spent RM6.08 billion but none of the six ships have been completed or delivered, according to Parliament’s Public Accounts Committee.
At first sight it looked as if Rafizi was in the right because he based his allegations solely on just a forensic report, which was declassified.
But Latiff has repeatedly denied the woman was his wife, that the allegations were aimed at smearing his reputation and inciting the people against him, and has challenged Rafizi to prove that he was married to Zainab.
But it is very strange that Rafizi’s rejoinder to this was the “denial by Datuk Dr Abdul Latiff Ahmad, on his involvement in the project (through the companies helmed by his alleged second wife) was only made on Facebook”.
Rafizi added Abdul Latiff should have taken legal action against him and the other parties who provided details of the minister and his wife’s purported involvement in the LCS.

Clearly there is more than meets the eyes for Rafizi to demand that Latiff sue him and the other parties when the other parties seem to be not interested in demanding Latiff to sue them.
Why forced people to take legal action instead of just apologising or keeping quiet or answering to Latiff’s simple challenge for Rafizi to prove that the woman is Latiff’s wife.
The culture of suing people carried to the extreme will turn Malaysia into a litigatious society, and only the lawyers will be enriched.
Sue if you have to sue but if you don’t want to sue there is nothing wrong in it. You can always clear your name against slander by other means or bear it with patience until Allah decides to clear your name.
One way or another, Allah will clear your name, if not in this world, then in the world to come if you are innocent.
Why does it seem so difficult for Rafizi who seems to be intelligent to meet the simple challenge of Latiff? The issue will either die off if Rafizi fails to meet the challenge or it will be brought to the next level if Rafizi is successful.
Both outcomes are desirable for it is a good progression from the accusation made by Rafizi.
And because Rafizi started it first, the onus is on him to meet the challenge posed by Latiff instead of sidestepping the challenge by diverting the issue to Latiff should sue him and the others.
Rafizi has already a record of making wild allegations against the late former MB of Selangor, Tan Sri Abdul Khalid Ibrahim, and had to apologise to the late MB when the issue was brought to court.
As a Muslim, didn’t he learn from this lesson of spreading fitnah (slander) which Islam has described as worse than murder?
For the record, Latiff has written extensively on these allegations published by Focus Malaysia on Aug 28 (See article “Rafizi, enough with the lies: I had nothing to do with LCS scandal”).

In that article Latiff explained the following:
1) Rafizi is not only dishonest but deliberately slanderous in trying to hide the fact that there is a real forensic report signed by Alliance which clearly does not mention that Zainab is his second wife.
2) Rafizi also covered up the fact the introduction of the forensic report which is the basis of his allegation clearly gave a “Notice to the Reader” warning as follows: “In compiling this report, we have relied on oral and documentary representations made to us by people associated with the issues relating to our review.”
3) The warning also added: “We were unable to assess the veracity of these representations.”
Latiff also made the following statements:
1) I do not have any wife or ex-wife named Zainab Mohd Salleh.
2) Whatever this Zainab does has nothing to do with me.
3) I was the deputy defence minister from 2009 until 2013.
4) The LCS contract date to Boustead Naval Shipyard Sdn Bhd (BNS) was made on July 17, 2014.
5) I did not play any role in the LCS contract.
6) My family did not get any defence or supply contracts with Mindef when I was the deputy defence minister.
And what was Rafizi’s response to this massive factual information given by Latiff?
He still insisted Latiff should sue him. This is really a very low-class slandering.
The fact of the case is Rafizi is actually innocent because his guilt lies in wanting to score point at the height and in the heat of the current election fever.
What a contradiction – innocent but yet guilty unless we interprete innocent to mean his age in comparison to Latiff’s.
And we can clearly see this politicking when his fellow PKR member Hassan Abdul Karim who is the MP for Pasir Gudang was reported to have said Latiff should have been courageous enough to sue Rafizi if the latter makes false allegations.
And the reason – Latiff has the right to sue to prove his innocence and to get justice.
Is this for real? You are a lawyer Hassan, surely you should know in a court of law, the burden of proof is on the accuser (Rafizi) and so the onus is on Rafizi to prove that Zainab is Latiff’s wife and also to counter all the statements that Latiff has provided.
What telah happened Hassan? But all these are really a waste of time. The proper thing to do is to wait for the royal commission of inquiry to be established.
What Rafizi and Hassan are trying to do is to influence the court of public opinion during this election fever to turn the tide in favour of Pakatan Harapan (Pakatan) to ensure its victory in the 15^th General Election.
Perhaps PKR president Datuk Seri Anwar Ibrahim should step in and give some elderly advice to these two PKR members before more damage is done to PKR and Pakatan.
For those who have so much faith in the court of public opinion the fact is it is a “jungle” where you can find both truth and falsehood, and even a mixture of truth and falsehood (syubhat) there competing mercilessly and wildly to establish supremacy just like the wild beasts in the jungle do.
One last thing and that is supposing at the end of the day Latiff is found guilty by a court of law, does that mean from the Islamic perspective Rafizi is absolved for the sin of slandering?
In my opinion no, because his allegation is not based on the due process of the law, while a court of law always makes its decision based on the due process of the law.
But because I’m not an ustaz (religious scholar), it will be good if an ustaz can clarify.

On Aug 23, the Federal Court dismissed the final appeal of former premier Datuk Seri Najib Razak in the SRC International case, and unanimously upheld both the conviction and sentence passed by the High Court.

The High Court, on July 28, 2020, had sentenced Najib to 12 years’ imprisonment and a RM210 million fine.

After the Federal Court’s verdict, the right to appeal ends because of the simple principle of how there must be finality in decisions. Hence, Najib served his first day in jail on Aug 23.

However, there is still one option available to the former premier to challenge the court’s decision while in jail, and that is by applying for a judicial review.

Under Rule 137 of the Rules of the Federal Court 1995, the apex court is granted inherent power to, among others, review previous decisions on grounds of injustice and abuse of process.

The rule specifically states: “For the removal of doubts, it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court.”

But judicial review, like an appeal is not automatic. Najib’s counsel will have to file an application to the court to review his case and prove that there was a breach of natural justice during the legal process.

The Federal Court will only consider reviewing a case if it is satisfied that the applicant has suffered a serious miscarriage of justice. Should it decide in Najib’s favour, the case will then be reheard before a different panel.

However, a review will only be considered in very exceptional cases with history showing that there is a very slim chance of the court even accepting an application.

Whether Najib’s counsel applies for a judicial review or not, what happens then to his position as a member of parliament?

Article 48(1)(e) of the constitution stipulates that any MP who is convicted of an offence and sentenced to prison for not less than a year will lose his Parliament membership.

However, despite Article 48(1)(e), his position as an MP remains intact for as long as his counsel makes the application for a judicial review within 14 days after the apex court has dismissed his appeal, i.e. by September 6.

But how long will he still be an MP, supposing his counsel applies for a judicial review by September 6?

He will remain as an MP behind bars until 14 days have elapsed after the judicial review is disposed of by the court, as a judicial review is part of a court proceeding, just like an appeal.

What this means is Najib will lose his MP-ship in 14 days after the judicial review is disposed, and the review is not in his favour.

This is in line with Article 48(4b) of the Federal Constitution which states that “if within the period of fourteen days specified in paragraph (a) an appeal or any other court proceeding is brought in respect of such conviction or sentence, or in respect of being so convicted or proved guilty, as the case may be, the disqualification shall take effect upon the expiry of fourteen days from the date on which such appeal or other court proceeding is disposed of by the court.”

According to Associate Professor Abdul Rani Kamaruddin, a law lecturer at the International Islamic University Malaysia, in a situation where Najib’s counsel does not apply for a judicial review or the judicial review applied does not end in his favour, the next course of action for Najib is to apply for a royal pardon.

All individuals found guilty and sentenced are entitled to seek a royal pardon under Article 42(1) of the Federal Constitution, which states:

“The Yang di-Pertuan Agong has power 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; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.”

“But again the entitlement to seek a royal pardon is not automatic. Najib will have to apply for it within 14 days after his appeal was dismissed by the Federal Court, otherwise he would lose his MP-ship.

“Or if he applied for a judicial review and the outcome is not in his favour, he has 14 days after the disposal of the judicial review to apply for a pardon in order to retain his MP-ship,” said Professor Rani.

This is spelt out in Article 48(c) of the Federal Constitution, “if within the period specified in paragraph (a) or the period after the disposal of the appeal or other court proceeding specified in paragraph (b) there is filed a petition for a pardon, such disqualification shall take effect immediately upon the petition being disposed of.”

In other words, the case of a pardon is different from an appeal or judicial review in that the disqualification as an MP is immediate upon the petition being disposed of, whereas in the case of an appeal or judicial review, the disqualification takes place 14 days after the appeal or judicial review is disposed of.

The only similarity with respect to retaining the status of a MP is all these must be applied within 14 days i.e. the application for an appeal to the Court of Appeal must be made within 14 days after conviction if a convicted MP is not to lose his MP-ship.

The same goes for an appeal to the Federal Court, which must be made within 14 days after the Court of Appeal upholds the verdict of the High Court for a convicted MP to retain his status as an MP.

In similar vein, an MP found guilty and sentenced must apply for a judicial review within 14 days after the Federal Court has dismissed his appeal, if he is to retain his status as a MP, and a petition of pardon in turn must be made within 14 days after the outcome of the judicial review is not in favour of the MP concerned.

Of course if the MP concerned does not want to apply for a judicial review, then he has 14 days to apply for a pardon after the Federal Court has dismissed his appeal, if he wants to retain his status as a MP.

If all these are difficult to grasp, let’s then assume Najib applies for a pardon by Sep 6 (i.e. within 14 days after the Federal Court’s verdict), then he retains his MP-ship for as long as the pardon is not disposed of.

Assuming the pardon process takes three years to complete, then for three years Najib will be an MP while in jail.

But the clincher lies in when the current Parliament will be dissolved. We know that Parliament will automatically dissolve itself on July 16 next year, if it is not dissolved earlier.

So whatever options Najib decides to take to retain his MP status, in the current situation he will be an MP only for a maximum of about less than a year from today or lesser still should Parliament be dissolved earlier than July 16 next year.

Can Najib take part in GE 15 while in jail? He can’t because by virtue of Article 48(5) of the Federal Constitution, which states that a conviction is enough to disqualify an MP “for the purpose of nomination, election or appointment of any person to either House of Parliament”, Najib has already been disqualified from taking part in GE15.

Giving out royal pardons by the Yang di-Pertuan Agong is simply based on his standing as a King that gives him such powers.

The King simply decides who and when and how he wants to give out royal pardons, which implies that the Agong does not act in a judicial capacity because he is not a judge when giving out royal pardons.

Hence, he has more room to take things, which the courts cannot take into account. When finding guilt and passing sentences, for instance, the courts have to act in accordance with set principles and based on evidence but the Agong can take this one step further and act in the overarching interest of justice, public interest, and conscience.

The effect a pardon has is to remove all legal punishment for the offence and remove any disqualifications. If you are confused as to what this means, it just means that you no longer have to sit through your 12 years as a prisoner and if the prison sentence prevented you from anything before, it no longer has that effect today.

In exercising the executive power to grant a royal pardon, the Yang di-Pertuan Agong is required to consider the advice of the designated consultative body, the Pardons Board.

The Pardons Board is also required, under Article 42(9) of the Federal Constitution, to consider any written opinion, which may be given by the AG before tendering its advice to the King to consider.

While the Pardons Board is required by the Federal Constitution to tender its advice to the King, case law suggests that the decision is personal to the King and therefore the advice of the Pardons Board need not necessarily be heeded.

There appears to be two types of pardons – a conditional pardon, and an absolute pardon also known as a free or full pardon.

Conditional pardon relates to a situation where the sentence is substituted with a lesser sentence, for example, a death sentence being commuted to life imprisonment.

A free or full pardon extends beyond merely the acquittal of punishment and operates to purge the offence so as to clear the party from the infamy and all other consequences of his crime.

The effect of a free pardon is to clear the person from all consequences of the offence for which it is granted, and from all statutory or other disqualifications following upon conviction, but not to remove the conviction.

But there are some who make a distinction between a free pardon and a full pardon.

While the Federal Constitution refers to a free pardon in several provisions, it does not use the term full pardon at all.

One instance where the term free pardon is used in the Federal Constitution is in Article 48(1)(e) on the disqualification for membership of Parliament.

A free pardon is required for one to avoid being disqualified under that provision by reason that the person had been convicted of an offence and sentenced to a term of imprisonment of “not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon.”

This was being interpreted as only a free pardon will enable one from being disqualified, and not a full pardon.

But proponents of the distinction between full pardon and free pardon fail to explain what then constitute a full pardon.

When PKR president, Datuk Seri Anwar Ibrahim, was given a royal pardon in 2018, the effect of the pardon granted to him was called into question during the Port Dickson by-election.

Anwar’s eligibility to contest in the by-election was challenged by Noraziah Mohd Shariff, a voter in the Port Dickson Parliamentary Constituency, on the ground that Anwar had only received a full pardon whereas Article 48(1)(e) of the Federal Constitution requires a person to receive a “free pardon” to avoid being disqualified under that provision.

It would appear that the question as to whether the royal pardon bestowed upon Anwar tantamount to a “free pardon” would depend on the terms of the pardon granted by the Yang di-Pertuan Agong.

Unfortunately, this issue remains a moot point as the case was struck out by the High Court due to Noraziah’s failure to attend Court on the date fixed for case management.

According to legal expert Hafiz Hassan both free pardon and full pardon are one and the same thing and this can be seen in the judgment of Watkin LJ in R v Secretary of State for the Home Department, ex parte Bentley [1993].

This English case concerns an application for a judicial review on the exercise of the royal prerogative of mercy by the Home Secretary.

After hearing submissions from the parties, the court noted that the grant of a free pardon should be reserved for cases where it could be established that the convicted person was morally and technically innocent and that the policy of confining the grant of a free pardon to such cases had been followed by successive Home Secretaries for over a century.

In deciding to look at the matter afresh, Watkins LJ, who delivered the judgment of the court, said: “We propose to set aside any question of a free (or full) pardon and look at the matter afresh.”

Although the power to pardon is commonly described as a royal pardon, it is not always the case as the Yang di-Pertua Negeri of Sabah, Sarawak, Penang and Malacca are not of royal lineage.

Regards,

Jamari Mohtar

Editor, Let’s Talk!

Your Editor, Jamari Mohtar, discusses what’s next for jailed former premier, Datuk Seri Najib Razak and the various options available to him.

Recent Posts

Discover more from