Legitimacy of the government in the eyes of the populace is critical as the public must recognise the law and the Government as legitimate, failing which, the public will not believe in, and follow, the rule of law. (Per Justice Christopher Chin Soo Yin J in Harris Mohd Salleh v. Chief Secretary, Government of Malaysia & Ors [2023] MLRHU 323)
The ongoing debate surrounding the pardon
of Najib Razak has laid bare the troubling ways in which the power to pardon is
being manipulated in Malaysia. This manipulation stretches public credulity and
undermines the legitimacy of Government, which is anchored in the Constitution,
the legal system, and the rule of law.
Najib was convicted on
charges of corruption and abuse of power related to the 1MDB scandal, a case of
unprecedented magnitude involving billions of ringgit and causing immeasurable
harm to the nation's wealth and reputation. His conviction and sentence
underwent exhaustive legal scrutiny, receiving the fullest review possible
under the Malaysian legal system, with appeals right up to the Federal Court.
This should have been the final chapter in a saga that saw the triumph of
accountability over power.
However, recent
developments surrounding his pardon and the controversial "addendum"
have not only reopened this chapter but also distorted its narrative.
Discussions about granting leniency, including allegations of allowing Najib to
serve his sentence under house arrest, risk trivializing the gravity of his
crimes and mocks the criminal judicial system of the country. Worse, they paint
the perpetrator as a victim, undermining the justice achieved through a
painstaking legal process.
Any action that
minimizes the severity of these charges or downplays their devastating impact
on the nation must be met with firm resistance. The pardon power, while
necessary for exceptional circumstances, should not be used to shield
individuals from the consequences of their actions, especially when those
actions have betrayed the trust of the people and weakened the foundations of
the country's governance.
A Tool of Justice
or Political Expediency?
The power to pardon,
historically a royal prerogative, has evolved into an instrument of state
policy in modern constitutional democracies. While it serves as a necessary
safety valve in exceptional circumstances, ensuring justice where the rigid
application of law might fail, the current scenario in Malaysia demonstrates
its potential for exploitation. Politicians are wielding the pardon as a tool
to maintain political alliances, reward loyalty, and secure their hold on
power, rather than upholding principles of justice and public interest.
The controversies surrounding
the pardon of Najib highlight how the boundaries of this power are being
stretched beyond recognition. The constitutional framework clearly delineates
the limits of the King’s power to pardon, requiring the advice of the Pardons
Board, adherence to transparency, and alignment with principles of justice.
However, the alleged issuance of a mysterious addendum allowing Najib Razak to
serve his sentence at home is a glaring example of these boundaries being
ignored.
Undermining Public
Trust and the Rule of Law
Nothing is more
important in a system of government than the trust of the people in the rule of
law. When the pardon power is perceived as arbitrary or politically motivated,
it erodes public confidence in the integrity of both the legal system and the
executive. The use of the pardon to rehabilitate convicted politicians sends a
dangerous message—that those with influence can escape accountability.
In the Harris Mohd Salleh
v. Chief Secretary, Government of Malaysia& Ors., the High Court
emphasized that the legitimacy of government actions is essential for
maintaining public trust.
The foundation of our democracy is the Federal Constitution. So long as
laws, the citizens, the legislature, executive and the judiciary are or act
within the confines of the Federal Constitution, there is law and order. With
such mutual compliance comes an innate sense of legitimacy by the citizens of
their Government. This sense of legitimacy is critical for society to survive
and thrive. You are all in Court today because you believe in the legitimacy of
this Court as an arbiter of the prevailing dispute. If the Courts have no
legitimacy, disputes will be resolved by armed conflict and society will
dissolve into chaos. . . . Legitimacy
of the government in the eyes of the populace is critical as the public must
recognise the law and the Government as legitimate, failing which, the public
will not believe in, and follow, the rule of law. (Christopher
Chin Soo Yin J)
Yet, the recent exercise
of the pardon power in Malaysia appears to subvert this principle. The lack of
transparency, conflicting reports, and the mysterious nature of decisions like
Najib’s addendum only deepen the public’s scepticism about the legitimacy of
government.
When Pardon is
Justified
In many Commonwealth
jurisdictions, pardons are reserved for those who are morally or factually
innocent. They are tools to correct injustices, not to circumvent the judiciary
for political convenience. However, in Malaysia, the boundaries of this power
are being extended to favour elites and shield them from accountability. This
deviation from constitutional and traditional norms undermines the separation
of powers, judicial independence, and anti-corruption efforts.
Reform of the Process
To restore the
integrity of the pardon process, the Government must adopt reforms that ensure
its exercise is guided by principles of justice and public interest rather than
political expediency. These reforms include:
- Transparent Processes: Publicly documenting the reasons for
pardons and the recommendations of the Pardons Board.
- Independent Oversight: Strengthening the independence of the
Pardons Board to prevent undue executive influence.
- Public Accountability: Requiring disclosures that align the
pardon process with public expectations of fairness and justice.
- Judicial Review: Allowing courts to scrutinize the
constitutionality of questionable pardons or addenda.
Conclusion
The power to pardon,
when exercised responsibly, complements the criminal justice system by
addressing exceptional cases. However, its exploitation for political gain, as
seen in Malaysia, threatens to undermine the very foundations of the criminal justice
system and principles of governance that bind politicians. By reaffirming
principles of legitimacy, transparency, we can reclaim the pardon power as an
instrument of justice rather than a tool of manipulation.
6 Jan 2025