[1] We have to consider several points:

(1).    The legal principles involved in granting a pardon.

(2).    How many kinds of pardons are there.

(3).    The Effect of a pardon.

(4).    Factors for the grant of a pardon.

(5).    Factors against the grant of Pardon.¹Art. 42(1), read with Art. 42(11) of the Federal Constitution

[2] Legal Principles

The petition for a grant of pardon in Najib’s case, being an offence committed in the Federal Territories, will be sent to the King.

However, the decision will be made by the Pardons Board, whose advice the King must accept.² Art 42(5) read with clause (11)

[3] Who controls the Pardons Board?

The Pardons Board comprises the Attorney General, the Federal Territories Minister,³Art 42(11) and three members ‘appointed’ by the King.⁴Art 42(5) read with clause (11)

It is not clear who nominates these ‘three other’ members. But it is safe to assume that it will be the Federal Government.

[4] What is the difference between a ‘free pardon’ and a ‘conditional pardon’?

A ‘free’ pardon is one without conditions.

To escape the clutches of his conviction, Najib must obtain an unconditional pardon.⁵ Article 48(1)(e) of the Federal Constitution

[5] What is the legal effect of a pardon?

A pardon is not an acquittal.

If Najib receives an ‘unconditional’ pardon, which is what he is hoping for, then his entire punishment is wiped out.  A pardon ‘removes’ from a convict, ‘all the pains, penalties and punishment that ensue from the conviction.⁶R v Foster [1984] 2 All ER 679, at 684

But the conviction stays, because only a court can quash any conviction. No other institution, including the monarch, has any power to quash a conviction.

[6] How many kinds of pardons are there?

The Malaysian Constitution lists seven types of pardon.⁷Art.42 Federal Constitution

These are: –

1. pardons, both ‘unconditional’ and ‘conditional’;
2. reprieve;
3. respite;
4. remission;
5. suspension; and
6. commutation

[7] What about the other kinds of pardon?

You will see that the word ‘pardon’ and the phrase ‘free pardon’, and the other types of pardon are in fact in two opposing extremes between several ranges of the exercise of the King’s mercy.

[8] ‘Commutation’

… means reducing a sentence from e.g. 15 years to 10 years.

[9] ‘Remission’

… although something like commutation, is a complete or partial cancellation of the punishment.

[10] ‘Reprieve’?

A ‘reprieve’ is a temporary postponement of a punishment.

[11] ‘Respite’

‘Respite’ is where a sentence is reduced due to, e.g. an illness, or pregnancy.

[12] How would the Pardon’s Board exercise its discretion?

The exercise of a pardon is discretionary. The King (or Ruler) can grant –  – or withhold a plea for a pardon. But the King must act on the advice of the Pardon’s Board.⁸Art. 42(4), Federal Constitution

However, remember this:

The FT Minister, the AG and the three nominees are, likely, Government nominees.

And so, in the end, the King will accept the advice of the Cabinet, which has control over the minister, the AG and these members.⁹Art. 40(1A)

Therefore, this is an exercise of Government power, although local cases rule that the decision cannot be challenged in court.¹⁰ Supreme Court in Sim Kie Chon v. Superintendent of Pudu Prison &Ors [1985] 2 CLJ 449 and PP v. Lim Hing Seow [1979] 2 MLJ 170I disagree, but that is a debate for another day.

Now you can understand why some people have been dying for early election to be held. 

If they are in power, they can stop any ongoing prosecution.

If they cannot, they can get the Cabinet nominees to forgive them.

Despite all these, a decision to grant – or refuse – a pardon must be made on rational grounds.

[13] What legal rules apply in granting or withholding a pardon?

In some Commonwealth nations, there are specific laws on when a pardon should be granted.

Malaysia has no such laws. So we have to fall back on common law.

The Pardons Board considers each case by looking at the peculiar facts of the case.¹¹Merchandise Transport Ltd v British Transport Commission [1962] 2 QB 173, 192

Since judges are not perfect, a pardon is a constitutional safeguard against judicial mistakes.

[A].  First, to ask for a pardon, a crime must have been committed and admitted.

The essence of pardon is the forgiveness of a crime. A pardon is not a statement that the crime never took place. A person who seeks a pardon confesses that he is guilty of the offence. Any protestation of innocence will not work.¹²Fines (Sir Henry) Case [1623] Godbolt 288 as cited by R v. Foster [1985] QB 115 at page 117

[B].  A ‘free’ or ‘unconditional’ pardon will only be granted if there is a ‘moral’ or ‘technical innocence’ of the convict.

There are several cases demonstrating this point.

Take the Steven Gallant case as an example.  He was a convicted murderer. He was serving a life sentence. In 2019, he was at Fishmongers’ Hall, London. He was helping prison authorities hand out pamphlets at a prisoner rehabilitation event.

Nearby, on the London Bridge, a terrorist, Usman Khan began a stabbing spree.

Despite the grave danger to himself, Gallant fended off Usman Khan, using a narwhal horn.

He saved many lives. For his exceptional bravery, the state reduced his sentence.

In 2001, two inmates, Mark Collerton and Andrew Good, saved the life of a prison manager who was gored by a wild boar. This was in South Wales. The state recognized their service. Their sentence was commuted.

[C].  For a ‘free pardon’, the convict must be morally or technically innocent

A free pardon is normally granted when the innocence of the defendant has been clearly established.¹³R v. Foster [1985] QB 115 at page 119

In a case called R v Foster¹⁴R v. Foster [1985] QB 115 at page 119 the UK Crown officers acknowledge that to grant a ‘free pardon’, the ‘practice’ in the UK was that the Home Secretary had to be satisfied of the accused’s innocence.

Foster had been convicted on several counts of rape and attempted rape. After his conviction, another man confessed to these very crimes. In 1982, Foster was granted a free pardon in respect of these offences.

Let us now apply these principles to the relevant factors that are necessary for the Pardons Board to consider.

[14] Factors that might support Najib’s application for a pardon.

First is the argument that Najib’s father has been a popular Prime Minister. The Razak pedigree, it will be argued, might be of some assistance.

Second, because Najib was a prime minister before his conviction, he had rendered ‘national service’. That, as you know, will not fly.

Third, because he is an Orang Besar (an aristocrat?) of the Pahang State, a pardon may be necessary.

Fourth, is the argument that because he is a member of UMNO, he was a defender of the Malay race and therefore can be let off the hook.

[15] Points that will weigh against Najib

[A]. Several other cases are still pending against Najib. 

So the King may not be prepared to decide on the pardon until these prosecutions have been completed.

[B]. The nature of the offences.

He was convicted for the corruption of state monies of the people and the nation.

[C]. The sums involved were huge.

These were spirited away by various criminal means. These monies were not used to benefit the nation. They were exploited for Najib’s personal purposes.

Neither has he offered to return a single cent. When he was arrested, a great deal of money was found in his possession: this fired speculation that these were the fruits of corruption.  All these resulted in the charges, as you know.

[D]. There has been a complete denial of any knowledge of the fate of the monies over which he was charged.

He has volunteered no information about where it is, how it was spent, and how it was moved about from different accounts bearing his name.

[E]. Najib has not shown remorse.

One ground of pardon is the need for Najib to acknowledge that he in fact committed the crime. Najib has never said publicly, “I did it; and I am sorry”.

[F]. Next would be his behaviour, before his arrest

Before he was arrested, Najib used his powers to block investigations into his crimes. He lied about the source of the monies. When the Attorney General was prepared to file charges against him, he fired the AG.  When the Deputy Prime Minister raised questions, Najib sacked him.

[G]. Next, how did Najib behave during his prosecution?

His defence strategy was to attack all the judges, often personally. He repeatedly questioned their integrity and the neutrality of the judiciary.

Despite being offered repeated chances to defend himself, he refused; and then blamed the judges for denying him due process. He made himself out as a victim.

[H]. The next point is his open defiance towards the judiciary

On several occasions, during his prosecution, illnesses were used to postpone important hearing dates.

He allowed his party members to maul the judiciary while the court was deliberating his sentence. This continued even after his sentence had been pronounced.

His colleagues in his party have called for the resignation of the AG and the Chief Justice on spurious grounds. Not once did he publicly denounce these tactics.

All this has been seen as interfering with the due course of justice

[I].  After his final appeal failed, he was and continues to be, given ‘special’ treatment. He did not decline such treatment.

[J]. Then, before and after his conviction, he took a religious oath, protesting his innocence:  a ‘Sumpah Laknat’.

In the Islamic faith, it is the invocation of the wrath of the Almighty on those who do not believe.  This religious procedure may not sit well with the royal houses, who are seen as guardians of the Islamic faith in Malaysia.

[K]. Najib has sought to repeat the Anwar playbook.

The difference between these two cases is: Anwar was accused of a private crime, between consenting adults, whereas Najib is charged with corruption and abuse of the people’s money.

In the West, a leader who has made a mistake resigns. Although Korean and Japanese leaders publicly apologise and resign when they fall into error; Malaysian leaders invoke race and religion.

This need for a leader to behave honourably, to openly apologise for his errors, has not seemed to have seeped into the Malaysian psyche.

Najib is only one of the many who have demonstrated this kind of brazen conduct.

[L]. Najib is a source of grave national embarrassment.

He made the name of Malaysia synonymous with corruption, indecency, and impropriety.

[16] Conclusion

Najib has been convicted for stealing humongous amounts of money from the people.

This funds could have been used for the betterment of the poor and needy; for the provision of food, medical assistance and education.

If the Pardons Board advises the King to grant even a conditional pardon to Najib, the Board, and the government, would besmirch the reputation of the monarchy.

The Board will set a precedent – and a charter  – for crooks and thieves.  

It will irreversibly injure the national reputation.

Worse, it will create extreme public discontent and dismay.

So we wait.

What will the King do?