The exploitation of the right to pardon in Malaysia

Legitimacy of the government in the eyes of the populace is critical as the public must recognise the law and the Government as legitimate, failing which, the public will not believe in, and follow, the rule of law. -Justice Christopher Chin Soo Yin J in Harris Mohd Salleh v Chief Secretary, Government of Malaysia & Ors [2023]

The ongoing debate surrounding the pardon of Najib Razak has laid bare the troubling ways in which the power to pardon is being manipulated in Malaysia.

This manipulation stretches public credulity and undermines the legitimacy of government, which is anchored in the Constitution, the legal system and the rule of law.

Najib was convicted on charges of corruption and abuse of power related to the 1MDB scandal, a case of unprecedented magnitude involving billions of ringgit that causing immeasurable harm to the nation’s wealth and reputation.

His conviction and sentence underwent exhaustive legal scrutiny, receiving the fullest review possible under the Malaysian legal system, with appeals right up to the Federal Court. This should have been the final chapter in a saga that saw the triumph of accountability over power.

However, recent developments surrounding his pardon and the controversial “addendum” have not only reopened this chapter but also distorted its narrative.

Discussions about granting leniency, including allegations of allowing Najib to serve his sentence under house arrest, risk trivialising the gravity of his crimes and mocks the criminal judicial system of the country. Worse, they paint the perpetrator as a victim, undermining the justice achieved through a painstaking legal process.

Any action that minimises the severity of these charges or downplays their devastating impact on the nation must be met with firm resistance.

The pardon power, while necessary for exceptional circumstances, should not be used to shield individuals from the consequences of their actions, especially when those actions have betrayed the trust of the people and weakened the foundations of the country’s governance.

Tool of justice or political expediency?

The power to pardon, historically a royal prerogative, has evolved into an instrument of state policy in modern constitutional democracies. While it serves as a necessary safety valve in exceptional circumstances, ensuring justice where the rigid application of law might fail, the current scenario in Malaysia demonstrates its potential for exploitation. Politicians appear to be wielding the pardon as a tool to maintain political alliances, reward loyalty and secure their hold on power, rather than upholding principles of justice and public interest.

The controversies surrounding the pardon of Najib highlight how the boundaries of this power are being stretched beyond recognition. The constitutional framework clearly delineates the limits of the king’s power to pardon, requiring the advice of the Pardons Board, adherence to transparency, and alignment with principles of justice.

However, the alleged issuance of a mysterious addendum allowing Najib to serve his sentence at home is a glaring example of these boundaries being ignored.

Undermining public trust and rule of law

Nothing is more important in a system of government than the trust of the people in the rule of law. When the pardon power is perceived as arbitrary or politically motivated, it erodes public confidence in the integrity of both the legal system and the executive.

The use of the pardon to rehabilitate convicted politicians sends a dangerous message – that those with influence can escape accountability.

In Harris Mohd Salleh v Chief Secretary, Government of Malaysia & Ors, the High Court emphasised that the legitimacy of government actions is essential for maintaining public trust.

The foundation of our democracy is the Federal Constitution. So long as laws, the citizens, the legislature, executive and the judiciary are or act within the confines of the Federal Constitution, there is law and order. With such mutual compliance comes an innate sense of legitimacy by the citizens of their Government. This sense of legitimacy is critical for society to survive and thrive. You are all in Court today because you believe in the legitimacy of this Court as an arbiter of the prevailing dispute. If the Courts have no legitimacy, disputes will be resolved by armed conflict and society will dissolve into chaos…. Legitimacy of the government in the eyes of the populace is critical as the public must recognise the law and the Government as legitimate, failing which, the public will not believe in, and follow, the rule of law. (Christopher Chin Soo Yin J)

Yet, the recent exercise of the pardon power in Malaysia appears to subvert this principle. The lack of transparency, conflicting reports and the mysterious nature of decisions like Najib’s addendum only deepen the public’s scepticism about the legitimacy of government.

When pardon is justified

In many Commonwealth jurisdictions, pardons are reserved for those who are morally or factually innocent. They are tools to correct injustices, not to circumvent the judiciary for political convenience.

However, in Malaysia, the boundaries of this power are being extended to favour elites and shield them from accountability. This deviation from constitutional and traditional norms undermines the separation of powers, judicial independence and anti-corruption efforts.

Reform of the process

To restore the integrity of the pardon process, the government must adopt reforms that ensure its exercise is guided by principles of justice and public interest rather than political expediency.

These reforms include:

The power to pardon, when exercised responsibly, complements the criminal justice system by addressing exceptional cases.

However, its exploitation for political gain, as seen in Malaysia, threatens to undermine the very foundations of the criminal justice system and principles of governance that bind politicians.

By reaffirming principles of legitimacy and transparency, we can reclaim the pardon power as an instrument of justice rather than a tool of manipulation.

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