THE power to grant a royal pardon is provided under article 42(1) of the Federal Constitution, which states:  

“The Yang di-Pertuan Agong has the power to grant pardons, reprieves, and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya, and the Ruler or Yang di-Pertua Negeri of a State power to grant pardons, reprieves, and respites in respect of all other offences committed in his State”.

However, this is not an automatic right. Najib Razak’s application for a royal pardon must be initiated with a petition practicable soon after his conviction, and the second petition in three years from the date of conviction and thereafter two-year interval can be initiated under special circumstances that are brought to the notice of the king, as stated under Regulation 113 of the Prison Regulations 2000.

The Pardons Board consists of, (a) the Attorney-General of the Federation, (b) the Chief Minister of the State or the Minister of the Federal Territory (PM), and (c) not more than three members appointed by the rulers, as stated under article 42(5) of the Federal Constitution.

Thus, before considering pardon, the king must consult and be advised by the board and consider the AG’s written opinion,(Superintendent of Pudu Prison v Sim Kie Chon [1986] 1 MLJ 49). This case also highlighted, that granting royal pardon is a “royal prerogative of mercy”.

The discretion to grant the petition for clemency, is vested to the Agong/rulers as provided under article 42(1) and (2). Hence, before granting one, the Agong/rulers will look at the external factors when reaching a decision, and it is not the decision as bound by the courts. 

As such, the dissenting judgment (4-1) in Najib’s application to review the Federal Court ruling cannot be used as grounds for his petition.

In the case of Public Prosecutor v Lim Hiang Seoh [1979] 2 MLJ 170, as cited in the case of Juraimi bin Husin v Pardons Board, State of Pahang & Ors [2002] states that:

“When considering whether to confirm, commute, remit or pardon, His Majesty does not sit as a court, is entitled to take into consideration matters which courts bound by the law of evidence cannot take into account and decide each case on the ground of public policy; such decision is a matter solely for the executive. We cannot confirm or vary them…”

Granting a pardon is a royal prerogative and not an executive power, hence it is not justiciable. – April 13, 2023.

* Matilda George reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.