There is too much talk about the addendum, majority are made by opposition.
Let is look at the text of the law ..
Could the King – or the Pardons Board – insert an Addendum into a Pardon?
The answer is, No. Why? Since the Najib saga began, the Addendum has been, in Churchill’s words, “a riddle wrapped in a mystery inside an enigma”. In my opinion, the key reasons are: [1]: Pardons cannot be granted ‘in instalments’. [2]: Accepted rules of constitutional interpretation do not at all point to any ‘House Arrest’ orders (a new Act of parliament is required for that!); and no precedent exists. [3]: The King, being part of the Board, must decide ‘collectively’ with it; for he must comply with its advice – he cannot act outside it. There is no proof that the Board collectively ‘endorsed’ the Addendum. [4]: The Addendum, even if it exists, and even if its contents are true, is wholly unconstitutional. The Board can only reduce, or extinguish the original punishment. It cannot alter its nature, or create ‘new’ forms of punishment. [5] Without jurisdiction, any exercise of constitutional power is void; and the Addendum can be ignored. Think about this: a pardon is a constitutional device allowing interference with a court’s sentence. Should not that right be exercised, carefully, and transparently? If the answer is ‘no’, then, why have laws? Other considerations are outlined below in a logical order.
[1]. Article 40(1A): Is the decision to pardon, a collective decision of the Pardons Board, or that of the King alone?
It is that of the Board. Let us test this answer. Could the King, without the Pardons Board, unilaterally grant, amend, add to, or take away the terms of a pardon? The answer is, ‘No’. Why? His Majesty has to comply with the advice of the Pardons Board. And why is that? 1
The reasons are obvious. To begin with, the decision to pardon is the collective decision of a constitutional body called the ‘Pardons Board’. The King cannot decide independently of the Board. The King is not the Board; but he is a part of it. He cannot make a separate decision outside the Board. If his decision differs from that of the Board, the Board’s decision stands, and His Majesty must endorse it. 2
Formal advice is constitutionally binding on the monarch: this principle has been consistently upheld all across the British Commonwealth.3 I shall not oppress you with caselaw, but see here.4 The other reasons appear below.
[2]. Did the Pardons Board discuss or decide on Najib’s House Arrest?
The minutes of the Pardons Board would have answered the question. Unfortunately, we do not have it. The Government should disclose this information. This will eliminate unnecessary speculation.
It is not an ‘official secret’ (and why should it be?). It has nothing to do with national security. Nor is it related to political manoeuvring – or so we are told. In the interest of transparency, there is all the more reason that such information should come before the public.
[3]. Which brings us to the next two questions: What was the AG’s opinion; and what did the Board recommend?
The Pardons Board met on Jan 29, 2024 (hold this date in your mind) to consider Najib’s petition. What opinion did the AG render on that day? Second, what did the Pardons Board recommend to the King?
The issue is serious5 because Najib has complained that there was “no answer” from the Government over the alleged Addendum.6 In delivering its majority decision, the Court of Appeal stated that the AG had not rebutted the existence of the Addendum.7 While the ‘lack of response’ is irrelevant to the Addendum’s validity, the Government should have disclosed this. As the controversy deepens, it is now incumbent upon the Madani Government to divulge it.
[4]. The Addendum represents the exercise of a constitutional power.
Those who exercise constitutional power, do so, as it were, from within a house of glass. Any exercise of such power demands absolute transparency. If the exercise of such power is opaque, that smacks of other things.
Anwar himself has gone on record several times, demanding transparency.8 As the head of the Madani administration, ‘Accountable Governance’ has been Anwar’s constant slogan. He cannot allow the public and the judiciary, which protects the people against the government, to be burdened with the Addendum issue.
[5]. Under Art 42(9), the Pardons Board must consider the AG’s written opinion, ‘before tendering its advice’ to the King.
However, the AG’s ‘opinion’ remains a mystery. It was his team that had prosecuted Najib. Did he recommend that there should be a 50% reduction of sentence? The Government should disclose the AG’s opinion. Second, did the AG recommend that there should be a 77% discount of the fine: from RM210 million to RM50 million? Or was that a decision of the Board? This brings us to the third question.
[6]. What did the Board advise the King?
The Addendum has been an enigma.9 A tiny gleam of light was shed on 06 Jan 2025, when Senior Federal Counsel Shamsul Bolhassan addressed the Court of Appeal. In his arguments, Shamsul disclosed that during the Jan 29, 2024 meeting, 10 the Board had decided to halve Najib’s 12-year jail term and to reduce his fine to RM50 million.11
One wonders why on earth the Anwar Government would do that – if not for political purposes. We shall deal with this in another article.
[7]. When was the Pardons Board’s decision disclosed to the public?
Remember I told you to ‘hold’ the 29 Jan 2024 Pardons date in your mind? Initially, there was no government confirmation about what happened at the Board. Reuters reported being unable to ‘independently verify’ the details of the royal pardon.12 The reduction in sentence was the first to be disclosed on 29 Jan 2024. We did not hear anything about the 77% reduction in the fine. It was BBC that reported the ‘fine reduction’ later, that too only on 02 February 2024! 13 No one has explained this delay.
[8]. If what SFC Shamsul says is true, His Majesty, the former King was bound to comply with the Board’s recommendation.
Why is that? The answer is in Articles 42 (9) and (8) read with Art. 40 (1A) of the Constitution.
Art. 42 clause (9) states: “Before tendering their advice on any matter a Pardons Board shall consider any written opinion which the Attorney General may have delivered thereon.”
Art. 42 clause (8) states: “The Pardons Board shall meet in the presence of the Ruler or Yang di-Pertua Negeri and he shall preside over it.”
Art. 40(1A) puts the matter beyond doubt: It reads:- “Yang di-Pertuan Agong to act on advice: (1A) 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 [King] shall accept and act in accordance with such advice.” Clear so far? This means the King, when he is required to act on advice, must comply with such advice. He has no choice. He cannot impose his view on the Board.
[9]. Addendum if made after previous King vacated office
The letter referring to the Addendum was dated January 04, 2025. It was sent to Najib’s son. Thus far, there is no record of it being sent to the Prime Minister or the AG. Had it been sent, it would have made no legal or constitutional difference. More on that later.
[10]. First look at the odd timing of this Addendum
On 29 January 2024, the Federal Territories Pardons Board granted a ‘partial pardon’ (or ‘commutation’) to Najib Razak. A day later, on January 30, 2024, the Sultan of Pahang ended his reign as the 16th King of Malaysia.14 With his departure, his powers over the FT Pardons Board ceased.
In April 2024, Najib filed for a judicial review, challenging the Malaysian government and the Pardons Board “to verify”, and then “to execute” the purported “house arrest” order in the Addendum.15 Najib claimed he was “informed” of an “additional order” allegedly made by the former King in the January 29, 2024 meeting. Yet the Pardons Board’s statement on February 02, 2024 makes no mention of any relaxation of imprisonment into a ‘house arrest’. 16
On January 04, 2025, a year after the Pahang Sultan had left as King, a letter, allegedly issued by the Pahang Sultanate surfaced, speaking of the alleged Addendum granting a house arrest. It appears to have been signed by His Excellency Datuk Ahmad Khirrizal Ab Rahman, the Comptroller of the Royal Household of the Sultan of Pahang.
On 06 January 2025, this was revealed to the public. Intriguingly, that letter was not addressed to the Government, but to Najib’s son, Datuk Nizar. Its contents have not been confirmed. Social media posts seem to suggest that Najib’s claims are, if anything, true.17
[11]. Assume that the letter is true. What is its legal effect?
Are the contents of the letter false or true? In my view, that would make no legal difference in the construction of the constitutional provisions. The dissenting judge, Justice Azizah, seems justified in her view that there was no need for the government to confirm or produce the alleged royal Addendum.18
[12]. Does all that matter?
The Addendum, in my opinion, even if made with the Board’s recommendation is, in law, a nullity.
[13]. How many kinds of pardons are mentioned in the Constitution?
Art. 42(1) of the Federal Constitution uses several words to describe the Pardon Board’s range of powers.19 The Malaysian Constitution lists seven types of relief.
These are: –
‘Pardons’, both ‘unconditional’ and ‘conditional’;
‘Reprieve’;
‘Respite’;
‘Remission’;
‘Suspension’; and
‘Commutation’.
Najib seems to contend that pardons, reprieves and respites include a “House Arrest Order”.
[14]. What is the difference between these technical words?
‘Free pardon’ or ‘Pardon’ means that the sentence is completely wiped out (like that of the ‘free pardon’ granted to Anwar on 10 May 2018). 20 It is important to note, however, that while a pardon removes the punishment, it does not erase the conviction itself. Only a court has the power to quash a conviction.
‘Commutation’ means reducing a sentence from e.g. 15 years to 10 years.21 ‘
Remission’, like commutation, is a complete or partial cancellation of the punishment. Najib’s pardon is in fact a ‘remission’ or ‘commutation’.
A ‘reprieve’ delays the execution of a sentence, usually a death sentence, to allow time for applications for a royal pardon; to apply for any other legal remedy to prove a convict’s innocence; or to allow for successful rehabilitation.
A ‘respite’ differs from other forms of pardon, e.g. commutations, or remissions. It postpones a sentence temporarily. A respite does not permanently alter or remove the sentence. One example is where a sentence is postponed due to the convict’s illness, or pregnancy.22
[15]. The common law does not, in its long usage, equate ‘pardon’ to as ‘House Arrest’
First, in the grant of a ‘partial’ pardon, the Constitution limits the Pardons Board to only three possibilities: to ‘remit’, to ‘suspend’ or to ‘commute’ sentences.23 Crucially, no law has specified that the four words used in Art 42(1), i.e. ‘pardons’, ‘reprieves’ and ‘respites’, ever meant ‘House Arrest’.
[16]. Pardons Board has no power to change the character of the court sentence
The Constitution does not give the Board, or the King, any power to change the character of the punishment given by the court. By a pardon, any sentence of imprisonment can be reduced, or completely extinguished: but it cannot be changed into something else – e.g. an enjoyment of the luxuries of home.
[17]. If an order is made without jurisdiction, it is a nullity
In my view, the so-called Addendum is a nullity. If an order is made without jurisdiction, it is a nullity. It thus requires no compliance.24 Any person affected by it may ignore it.25 There is no reason why this legal principle cannot be applied to constitutional interpretation.
The King’s jurisdiction to grant pardons was limited to persons convicted of crimes within the Federal Territory: Art. 42(1) of the Federal Constitution.26 After leaving office, the former King had no jurisdiction to grant any pardon for offences committed within the Federal Territory. From February 01, 2024, only the new King, His Majesty Sultan Ibrahim Sultan Iskandar of Johor, could do that.
[18]. The power to grant a pardon is the decision of the Government, made in the name of the King
The power to pardon is the power of the Government.27 The Government itself insists the Addendum was not discussed at the Pardon Board’s meeting. One theory suggests the King issued the Addendum independently. I have previously argued that the King cannot act on his own volition; for he must comply with the advice of the Pardon’s Board.
[19]. What if the former King had issued the Addendum after he had left office?
A former King cannot add to or change a pardon order after cessation of office. If this is how it was done (and I am not sure if it was) then any such change is without jurisdiction. Again, a state Ruler cannot grant a pardon for an offence that occurs outside his state.
[20]. Public Policy: Governments rarely and only grant pardons to those who are considered ‘morally innocent of the offence’
It has always been the policy of governments in the British Commonwealth to grant pardons only to those who are considered ‘morally innocent of the offence’. This is as opposed to those who may have been wrongly convicted by a misapplication of the law.28
For example, the former Australian Attorney-General, Nicola Roxon, confirmed this principle in 2012, when she said that, “… [A] pardon is only granted where the offender is … morally innocent of the offence”.29
If we apply that test here, is Najib ‘morally innocent’ of the crime? If we ignore this principle, we, in effect, convey the message to corrupt politicians that: “It is all fine in Malaysia to be corrupt. After your conviction and sentence, fall at the feet of the King. Then enjoy a well-earned rest at a luxurious house arrest!” That would be a charter for crooks!
[21]. Smoke and mirrors
The phrase “smoke and mirrors” comes from the practices of illusionists from the 18th and 19th centuries. They used hidden mirrors and smoke to create visual illusions.
‘Smoke and mirrors’ are tricks to obscure the truth through distraction, misdirection, or partial truths. This tactic has also been exploited to draw people’s attention away from unpleasant facts.
In his 1975 book, ‘How the Good Guys Finally Won: Notes from an Impeachment Summer’, the journalist Jimmy Breslin describes political power as an illusion characterized by “mirrors and blue smoke”. 30 We Malaysians live in a hall of smoke and mirrors.
[The author thanks Ms KN Geetha, Mr. UK Menon, Miss Lydia Jaynthi, Miss Pavitra Apparao, Miss TP Vaani, and Miss JN Lheela for their assistance]
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