Najib’s jailing and the ABCs of clemency

Tsubasa Nair, Free Malaysia Today

There has been much talk about the possibility of a pardon for former prime minister Najib Razak, who was convicted last week of corruption and money laundering in the SRC International case, making him the first former premier to be jailed.

How does the pardon system work, and who can get one? FMT takes a closer look at the intricacies of clemency.

The regulations

Daniel Pascoe, an associate professor at the City University of Hong Kong, said pardons were regulated by the Federal Constitution, the Criminal Procedure Code and the Prisons Regulations.

The constitution empowers the Yang di-Pertuan Agong to grant “pardons, reprieves and respites” for offences tried by court-martial and all offences committed in the federal territories of Kuala Lumpur, Labuan, and Putrajaya.

In other states, the Ruler or Yang di-Pertua Negeri would have the power to grant pardons.

Who is eligible

Pascoe, who has carried out research on Malaysia’s pardons system, said prisoners on long-term sentences were automatically considered for a commutation of sentence.

Under the prisons regulations, a monthly report on every prisoner who has completed four, eight, 12 or 16 years of their sentence in the previous month must be submitted to the Pardons Board for consideration.

Prisoners could also petition on their own accord. A prisoner can submit a petition for clemency as soon as it is practicable to do so, following conviction. A second petition can be submitted three years after conviction, and subsequent petitions every two years.

The legal process

Lawyer Andrew Khoo said while it was the Yang di-Pertuan Agong or state rulers who had the power to grant pardons, they were advised by a pardons board.

The board would consider applications and then advise the King or state ruler. “There is a process which needs to be followed,” Khoo said.

Pascoe said cases involving federal prisoners would be heard by a federal pardons board, comprising the Attorney-General (AG), the federal territories minister and three lay members, and chaired by the Yang di-Pertuan Agong.

The most important voices on the board were those of the AG and the minister. It is the Attorney-General who asks the King to convene a meeting, at which the King receives the advice of the board.

“The Agong is free to act contrary to this advice, but a convention exists in federal cases whereby he accepts the board’s advice, in accordance with his ceremonial role,” Pascoe said.

The extent of a pardon

Khoo said a pardon could be sought for both conviction and sentence.

Pascoe said that in Malaysia, pardons could also be exercised to commute a death sentence to a lesser penalty, reduce the term of a prison sentence or release a petitioner from prison altogether.

“Before the pardon of Anwar Ibrahim in 2018, it was generally thought that a pardon could not dispense with a prisoner’s criminal conviction,” he said.

However, Anwar was not only released from prison, but his criminal conviction was also vacated, allowing him to be elected to Parliament again, instead of serving a five-year waiting period.

Pascoe added that it made sense for the Agong to possess such a wide-ranging power of pardon, as Malaysia’s constitutional power to pardon was influenced by both the UK’s sovereign prerogative of mercy and the privileges enjoyed by the Malay Sultans as the hereditary guardians of Islam in their respective states.

“It is still unusual to see pardons completely remove criminal convictions in Malaysia, but in the context of collateral consequences like a ban on holding political office for five years following release from prison, we may see more such ‘full’ pardons issued in the future,” Pascoe said.