Pardon and the immediate need for separation of powers

 

Over the past six years or so, Najib Razak’s SRC International case has stirred up much debate about the judicial processes of this country.

Since the confirmation of his conviction and sentence by the Federal Court in August 2022 and the dismissal of his application for review in March last year, much has been said about the pardon process, which last month saw the former prime minister’s sentence halved and his fine quartered.

Recently, even the Bar Council jumped into the fray. This is not unexpected since the Malaysian Bar is under a duty to uphold the rule of law without fear or favour.

Having said that, the tone of its statement, coupled with some muddled thinking (for reasons which I would not want to speculate), have left much to be desired.

Pardon in Malaysia is a power given to the Malay rulers – the Yang di-Pertuan Agong and the sultans – as well as the governors, under the Federal Constitution and the Criminal Procedure Code, which allows them to relieve a person from all or some of the legal consequences of a criminal conviction.

In Malaysia, the constitution has been interpreted as granting the rulers and governors an absolute right to pardon. The country’s apex court has on at least two occasions confirmed this, holding that the power is not amenable to judicial review.

This is unlike the position in the UK and India, where the exercise of the power to pardon can be reviewed by the courts to check against illegality, unreasonableness, irrationality and procedural impropriety, in both the process and outcome.

In fact, Malaysia’s position appears to be closer to the powers available to the President of the United States, who is given broad pardoning power over federal crimes. In the US, the power to pardon belongs solely to the president, whose decision cannot be overturned either by Congress or the courts.

US law also provides that pardon applications are to be reviewed by the Office of the Pardon Attorney, but the president may bypass that process.

That allowed Donald Trump, when he was in office, to use his powers liberally to absolve a number of his friends from criminal consequences, including Roger Stone, Charles Kushner (his son-in-law’s father), Michael Flynn and Steve Bannon, giving rise to much fiery debate at the time.

Then there is the case of Richard Nixon, who was pardoned by Gerald Ford even before he was charged, something not permitted under our constitution which requires the entire legal process to be exhausted before the pardon process kicks in.

In my view, the Bar Council’s claim that the exercise of pardon in Najib’s case has somehow breached the doctrine of separation of powers by allowing one branch, the executive, to “overshadow” another, the judiciary, or cause them to “overlap”, is well off the mark.

In recent articles, I have put forward my view that the doctrine of separation of powers in Malaysia, as framed by our founding fathers in the constitution, is unique.

In my view, a wholesome reading of the constitution will show that the three traditional branches of government – the executive, legislature and judiciary – were only granted a licence to administer the country as per the constitution, reserving the final say to the rulers.

That final say would include the absolute right to pardon convicted persons.

That is why it would be wrong for the Bar Council to suggest that the pardon granted to Najib has “robbed” justice as administered by the judiciary.

In previous columns and in several news reports in which I have been quoted, I have expressed some level of sympathy for Najib’s plight.

I must admit I did admire Najib as one of the country’s more polished prime ministers, and someone who had the trust of the Indian, Chinese and East Malaysian communities, something lacking in most of our Malay leaders today.

No doubt, the 1MDB financial scandal was one of huge proportions, but there can be no denying that many politicians over the last four decades have, with the support of the institutional organs of the states and/or their agencies, also plundered public funds in violation of social justice norms.

Having read a huge number of news reports and followed the various court cases, it is clear that Najib did not act alone.

After watching Man on the Run, I also believe that he was, to some extent, scammed by other officials and key players who failed in their duty to protect the country’s interests despite their fat salaries, perks etc. Remarkably, to date no one else has been brought to justice.

On top of that, I have in my previous columns expressed my support for the minority opinion of Justice Rahman Sebli, the current Chief Judge of Sabah and Sarawak, who issued a strong dissenting opinion in Najib’s application for a review of his final appeal.

In my view, Rahman was remarkably brave, being the only one of 10 apex court judges to dissent in Najib’s favour and hold that there was no procedural fairness in the conduct of the appeal.

Procedural fairness has nothing to do with the merits of the case but concerns the integrity of the decision-making process of the judiciary.

That includes the eligibility and locus standi of each judge to hear the case.

I would simply point to an article posted by former Chief Justice Abdul Hamid Mohamad on his blog on Sept 7, 2022, which listed genuine concerns about the eligibility of some of the judges who participated in the proceedings, as well as the suitability of the trial judge and all five judges who heard Najib’s final appeal.

As a whistleblower judge in the judiciary, I was personally aware of multiple violations of the doctrine of separation of powers in Malaysia, rendering its existence nothing more than a myth.

In an affidavit, I said there had been judicial interference in current prime minister Anwar Ibrahim’s second sodomy trial and in a sedition trial involving the late DAP stalwart Karpal Singh.

Those allegations prompted SN Nair, one of Anwar’s trusted lawyers, to urge the Pakatan Harapan government that had come into office in 2018 to “walk the talk” and push for a royal commission of inquiry (RCI) to be formed on the judiciary.

Sadly, to date, even with Anwar now the prime minister, no action has been taken.

In my view, the RCI is long overdue and much needed now.

It must be robust in its inquiry and independent, which means that it must be presided over by foreign judges of international repute who are equipped with an unerring sense of the rule of law.

The time has come for the Malay rulers, who through the Yang di-Pertuan Agong preside over all three branches of government, to step in and immediately call for the RCI to be convened as a first step towards setting the country back on its proper course.

At the end of the day, proponents of social justice must stand up for the rule of law, even if it means favouring murderers and kleptocrats. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.