Can the Malaysian Pardons Board issue a house arrest order?

If you had only RM10.00, can you spend RM20.00?

The answer is, in my view, ‘No’.

Why? 

If you have RM10.00 in your purse, you cannot possibly spend RM20.00.

The Pardons Board cannot exercise a power it does not have

The power of the Pardons Board comes from two sources.

First, Article 42 of the Federal Constitution.

Second, from any Act of Parliament.

Article 42 states that:

[The King] has power to grant pardons, reprieves and respites [for] all offences…  committed in the Federal territories,…’ etc.

Please focus on the words, ‘pardons, reprieves, and respites’

‘Pardon’, means, ‘forgiveness’.

‘Reprieve’, means, ‘cancelling or postponing’.

‘Respite’, means, ‘a short period of rest or relief from something difficult or unpleasant’.

That is as good as ‘postponement’, wouldn’t you agree?

Clearly, ‘reprieve’ or ‘respite’ do not – and cannot – mean, ‘an order for a ‘house arrest’.

That is clear.

Next, how are the Pardon Board’s powers to be exercised?

To understand this, you must look to Articles 42(4)(a) and 40(3).

Here is a simple explanation.

[For your understanding, I have cut out complex words, and inserted parenthesis (square brackets) where necessary.]

First, the King’s powers come from only one source: the Federal Constitution.

Under the Constitution, the King has two types of powers. The first his personal powers- these have to do with e.g. who shall be his successor in the royal house, etc. This has nothing to do with the powers to pardon.

The second set – the King’s powers ‘after consultation’ or ‘on recommendation’

This happens where His Majesty exercises his powers ‘after consulting with’, or, ‘on the recommendation of’ another body.

To grant a pardon the King must act on the advice of the Pardons Board.1Art 40(1A), Art. 42(1) and Art 42(8) and (9), Federal Constitution.

The constitution states that if the King has to consult a body of persons, His Majesty must act in accordance with such recommendation.2 Art 40(1A): ‘Yang di-Pertuan Agong to act on advice’: ‘In the exercise of his functions under this Constitution or federal law, where the yang di-pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the yang di-pertuan Agong shall accept and act in accordance with such advice.’ [Inserted on 24-06-1994, when Dr Mahathir and BN were in power]

Third, Article 42 (4)(a) stipulates how the King’s powers must be exercised

Art. 40(3) states that Parliament ‘may’ make laws on how the King exercises his powers of pardon. 

“[The] powers… in this Article… are, [if] they are exercisable by the [King], … functions [for] which [Parliament] may [make law] under Article 40(3).’

Has Parliament made any law on pardons or especially, house arrests? Answer, ‘No’.

So where does the Pardons Board’s power to issue an order for a house arrest, come from?

In my opinion, there is no such power. 

Two questions

Question-1: Suppose the Board told the King, “We recommend an order of House Arrest”.  Is that recommendation valid? 

How can it be? The Board has no such power. Neither does His Majesty the King. With respect, the Board or His Majesty cannot exercise a non-existent power. It is a fatal error of jurisdiction. 3For an example, see Gopal Sri Ram FCJ’s powerful dicta in Malaysia Building Society v Tan Sri General Ungku Nazaruddin Ungku Mohamed, pages 438, para -I to p. 439 para A.

Question-2: Suppose the Board did make such a recommendation. Who has the power to instruct the Pardons Board to make such a recommendation? Not the King. His Majesty cannot be blamed for that at all.

Now, who do you think can do that? 

That is the next essay!

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