The Exploitation of the Right to Pardon in Malaysia

 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:

1. Transparent Processes: Publicly documenting the reasons for pardons and the recommendations of the Pardons Board.
2. Independent Oversight: Strengthening the independence of the Pardons Board to prevent undue executive influence.
3. Public Accountability: Requiring disclosures that align the pardon process with public expectations of fairness and justice.
4. 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

Government Actions Must Be Seen as Lawful and Legitimate by the Public- High Court

 Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law.

HRH Azlan Shah in Pengarah Tanah dan Galian Wilayah Persekutuan v. Sri Lempah Enterprise [1978] 1 MLRA 132; [1979] 1 MLJ 135 (FC) as quoted in the Harris Mohd Salleh case.

 

At a time when government actions are seen to be taken without regard to public expectations of transparency and accountability, the 2023 ruling in Harris Mohd Salleh v. Chief Secretary and Government of Malaysia sends a powerful message that government actions must not only be legal within the terms of the Constitution but must be perceived as lawful and legitimate by the public.

Christopher Chin J’s decision applies the test of legitimacy (the first time a court has applied the test) to balance state rights with the rights of the public. Central to this test is the principle that the public must perceive government actions as lawful and legitimate. The judgment emphasises that "the legitimacy of the government in the eyes of the populace is critical; the public must recognise both the law and the government as legitimate. Otherwise, the public will not trust or adhere to the rule of law." The case marks a potential turning point in actions for judicial review, suggesting that public trust and perceptions of fairness are factors that courts may take into account.

Facts of the Case

The case concerns a judicial review application by Harris Mohd Salleh, former Chief Minister of Sabah, for the declassification of a government report on the airplane crash on June 6, 1976, known as the Double 6 Tragedy.

The crash killed 11 people, including the then Chief Minister of Sabah, Tun Fuad Stephens, and several cabinet members. Harris Mohd Salleh, who was appointed Chief Minister immediately after the crash, was directly implicated in the tragedy due to ongoing public speculation that the crash was politically motivated. 

The Malaysian government investigated the crash, but the findings were classified under the Official Secrets Act 1972 (OSA) in 1976. Despite repeated requests over the years by the people of Sabah, politicians, and the victims' families, the report has remained secret. 

Harris Mohd Salleh applied to the Minister of Transport to declassify the report under discretionary powers vested on the Minister vide s. 2C of the OSA, but there was no forthcoming decision by the Minister. The judicial review application challenged the Minister’s refusal to exercise the discretion to declassify the reports allowed by the OSA and sought orders from the court to compel the declassification of the Double 6 report.

The government, however, maintained that the decision to keep the report classified was within the discretion of the Minister under the OSA. The Minister did not provide any reasons for continuing the classification, citing national security and governmental discretion.

The Judge’s Dilemma

The court faced compelling arguments from both sides. On one hand, the government maintained that the OSA conferred absolute discretion on the Minister, who was under no express obligation to provide a reason for continued classification. On the other hand, the Applicant argued a constitutional right to information as a corollary to free speech, suggesting that the doctrine of proportionality required the Minister’s power to declassify to align with the importance of the right to information. 

The court found it difficult to choose between the two sides because of the respective weight, legality and cogency of the arguments. He found the scale of justice was “finely balanced,” leading to a judicial dilemma: Should the court defer to the minister’s broad discretion, or should it enforce the Applicant’s and the public’s right to information in the interest of transparency?

Legitimacy

Confronted with the dilemma, the judge invoked the test of legitimacy to resolve his dilemma. Legitimacy, he observed, was a “common underlying and unmistakable thread running through all these precepts and doctrines” that were applied in an action for judicial review.

“For example, we have judicial review by the Courts, the basic structure represented by separation of powers and the doctrine or proportionality, are all to ultimately afford legitimacy to the actions of the legislature or of a statutory act or decision by the executive.”

His Lordship expanded on the test of legitimacy in the following passages.

“The foundation of our democracy is the Federal Constitution. So long as laws, the citizens, the legislature, the 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.”

“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.”

His Lordship went on to add that the legitimacy of any law will be established if it conforms to the Federal Constitution. At the same time, the legitimacy of the exercise of statutory discretion will depend on the wider perception of the people of their government.

Applying the test of legitimacy to the case before him, the judge concluded that although the Minister had the right under the OSA not to declassify, by not declassifying the report, his legitimacy as the people's representative in our democratic Government is diminished and further prejudices the legitimacy of the Government he serves. 

The judge felt resolved in his dilemma because by applying the test of legitimacy, he found the balance of the arguments before him was no longer finely tuned but had tipped in favour of the Applicant. After 47 years, there was no compelling reason for continued classification, and the judge ordered the declassification of the report, reinforcing that the public’s and the Applicant’s right to information was crucial to maintaining trust and the legitimacy of government actions. 

Conclusion

Harris Mohd Salleh is the first reported case to apply the test of legitimacy to assess government discretion, although the judge was at pains to point out that the concept of legitimacy pervades “landmark decisions of the Federal Court on the standing of the basic structure, proportionality and judicial review, among others” and that the ultimate aim of those decisions was to preserve the legitimacy of the legislature and the executive. While the judgment may seem groundbreaking, the judge remained firmly within the boundaries of judicial decision-making. By carefully anchoring the legitimacy test in the principles of public trust and constitutional conformity, the judgment respects established doctrines while also setting a framework that future cases testing government actions may build upon.

Ultimately, the court’s decision in Harris Mohd Salleh invites a more transparent and accountable standard of governance in Malaysia, highlighting that legality alone may not be sufficient - legitimacy, as seen through the eyes of the public, is equally essential to uphold the rule of law. 

A Comparative Analysis of the Freedom of Information Enactments of Selangor and Penang

 

 "Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret. Bureaucratic administration always tends to be an administration of ‘secret sessions’: in so far as it can, it hides its knowledge and action from criticism.” (Max Weber)

The Freedom of Information (State of Selangor) Enactment 2011 and the Penang Freedom of Information Enactment 2010 precede the Federal Government’s 2023 commitment to introduce federal freedom of information legislation by over a decade. In furtherance of this federal commitment, nationwide consultations and dialogues with civil society, led by several NGOs such as the Centre for Independent Journalism (CIJ), have been held to shape the proposed legislation. Since the proposed federal law is expected to have wider jurisdiction and stronger provisions to secure the public’s right to information than in the two state-level enactments, a comparative analysis of these earlier laws might provide insights into the structure and functioning of FOI legislation in Malaysia. 

The analysis draws no conclusions on the effectiveness of the Selangor and Penang enactments, nor does it support their continuation in their current form. Such findings would require an analysis of how the enactments have served their purpose since they were implemented. The Centre for Independent Journalism offers a detailed assessment of the implementation of the two enactments in its document titled "A Preliminary Assessment of The Early Years of State-Level FOI Enactment Implementation" (2021). The document can be accessed here. 

https://cijmalaysia.net/a-preliminary-assessment-of-the-early-years-of-state-level-foi-enactment-implementation-in-malaysia/  

That said, any analysis of the two enactments must now consider Christopher Chin J’s decision in Harris Mohd Salleh v. Chief Secretary, Government of Malaysia & Ors. [2023] MLRHU 323; [2023] 4 CLJ 744. In that case, the applicant, a former Sabah Chief Minister, applied to the Court to direct the respondents to declassify the investigation report by Malaysian authorities into the crash of Nomad Aircraft 9M-ATZ Crash on 6 June 1976 at Kota Kinabalu, Sabah. 

In allowing an order of Mandamus, Christopher Chin J held, inter-alia that, 

‘. . . the right to information exists as a corollary to the right to free speech. The Federal Constitution seeks to establish an egalitarian society where citizens exercise their right to free speech on facts and reason, not on assumptions and conjecture.’

The judicial recognition of a constitutional right to information will fundamentally affect the interpretation of the two enactments (and indeed in the formulation of any new legislation on the subject). Absent a constitutional right to information, the right to access information under the enactments would have to be decided largely if not entirely by the access provisions of enactments. A prior constitutional right as recognised by the court in Harris Mohd Salleh means that the provisions in both enactments must now be examined against that constitutional right.

The Aims of the State Enactments 

While the common goal of both enactments is to grant access to government-held information, Selangor takes a broader and aspirational approach making explicit connections to transparency and accountability. Penang focuses on the right to access state-made information, without expanding into the broader governance goals that Selangor seeks to address.  

Decentralised System of Access 

In both the Penang and Selangor FOI Enactments, access to information is managed through individual departments, rather than a centralised state agency. This decentralised model means that each department functions as the gatekeeper for the information it holds, with dedicated Information Officers responsible for processing requests, determining eligibility for disclosure, and facilitating access. This structure promotes direct accountability within departments and ensures that requests are handled by those with the best understanding of the records under their control. 

Duty to Produce and Maintain Information 

For FOI legislation to be effective, public authorities must first adopt a responsibility to produce, collect and maintain accessible records. In many jurisdictions, the right to access information under FOI laws is coupled with a duty on government agencies to maintain and safeguard records. This duty is often reinforced by public records laws or archival requirements, which ensure that records are properly managed, stored, and preserved for future access. These laws recognise that without proper record-keeping and safeguards, the right to access information cannot be effectively realised. 

Both Selangor and Penang’s FOI enactments recognise this need. Under both enactments, Information Officers are appointed to every state department. Their duties include the maintenance and care of information in their respective departments and acting as intermediaries between the department and individuals applying for information. The expression and scope of the duties of Information Officers vary in the two enactments but in both enactments, they are the keepers of state information through whom requests for information are made. 

Under section 3 of the Selangor enactment, information officers are appointed for each department and are responsible for recording, maintaining, and archiving information. They must ensure systems are in place to track applications and facilitate access. Emphasis is placed on record-keeping practices, with a structured focus on training, tracking systems, and implementing best practices for managing information. 

Under section 3 of the Penang Enactment, Information Officers are appointed to manage the care, storage, and disposal of information. While Penang also focuses on ensuring proper record maintenance, it places less emphasis on structured training and tracking systems compared to Selangor. 

Information Officers are on the front line of the FOI process in both enactments. Much will depend on them to ensure the objectives of the enactment are met, especially in accessing departmental information. Both legislations expect these officers to not only facilitate information access but also assist those with special difficulties in obtaining the information they seek. However, as a recent account on the Aliran website (https://aliran.com/thinking-allowed-online/swept-under-the-carpet-penangs-freedom-of-information-facade) has shown, information seekers are also likely to be given the run around when they approach a state department for information. The Selangor, but not the Penang enactment, makes it an offence for an Information Officer to destroy, erase, knowingly give wrong or misleading information or wilfully deny or obstruct access to information (S. 18 Selangor Enactment). The punishment could be a fine not exceeding RM 50,000, imprisonment of up to five years, or both. 

Right to Access Information 

Central to any legislation on access to information is how it articulates the right to access information. Both enactments are uncompromising on this point and provide a framework for every person to access information, but they differ in how they express the right to access. Section 5 (1) of Selangor’s enactment states, 

5 (1) Every department shall provide access to every person, information which is within the control of the department unless otherwise exempted with exception in this Enactment. 

When read together with the broad definition of information in the Selangor enactment, an application can be made for almost any information, however trivial, that is obtained, held, or kept in the custody or control of any department or to which any department has reasonable access. In the Selangor enactment, this would include any documents made, amended, modified, transformed, obtained, or received by the department. 

The Penang enactment is equally broad on who may access information (section 5), but the right to access is limited to information that is ‘available’ in the department as opposed to information which is within the ‘control’ or reasonable access of the department as in the Selangor enactment. Another difference arises from Penang’s definition of information which is, ‘any documents made by the department’, making it more restrictive than Selangor’s broader scope. The Selangor definition covers any information in whatever form, including any documents made, amended, modified, transformed, obtained, received, held or kept in the custody or control of any department or to which any department has reasonable access.’ 

‘Persons’ Who May Apply 

The Penang and Selangor Freedom of Information Enactments do not explicitly define the term "person" when referring to who may apply for information. However, when read together with related regulations (Penang) or guidelines (Selangor), the term "person" is interpreted in a broad manner in legal contexts, encompassing both natural persons (individuals), legal persons (corporate entities) and unincorporated bodies such as NGOs.  

The Interpretation Acts 1948 and 1967 (Act 388) define “person” as including a body of persons, corporate or unincorporated unless the context otherwise requires. This means, unless specified otherwise in a specific law, the term "person" automatically includes both individuals and entities incorporated and unincorporated.

Application for Information 

Making an application for information under both enactments is straightforward but must be made through prescribed forms. If an applicant is unable to complete the form because of illiteracy or disability, he may make the application orally. In such circumstances, the Information Officer is required to reduce the oral application into writing and provide the applicant with a copy. 

Selangor (s. 6) applications for information require a declaration of the purpose for the application, whereas Penang (s.6) only requires the details of the information applied for. Section (18(1)(a) of the Selangor enactment makes it an offence for information obtained for a declared purpose to be used for another purpose, ‘if the effect is detrimental.’ The section does not specify to whom or how the effect of such use of information must be detrimental. 

The basic cost of making an FOI request in Selangor is RM12; in Penang, it is RM50 for data from a current year, and/or RM100 for other years. 

Responding to an Application 

Both enactments require information requests to be responded in writing to within stipulated time limits which are different in the two enactments. 

Under s. 7 of the Selangor enactment, the department concerned must respond to the request within 30 days of the date of the application. For requests for information related to life or liberty, the department must respond within 7 days. Under s. 7 of the Penang enactment the corresponding periods are 14 days and 48 hours (which can be extended to 7 days). 

There are other differences relating to the duty to respond in the two enactments. Selangor (s. 7 (3) provides that if an application is unclear the department shall use all reasonable efforts to obtain clarification from the applicant within the prescribed time. There is no similar provision in the Penang enactment. However, under the Penang enactment (s. 8 (2)) if an application is made to the wrong Information Officer, he is required to transfer the application to the appropriate Information Officer and inform the applicant. 

Exemptions – Information Exempted from Disclosure 

Both enactments set specific categories of exempted information, which cannot be accessed under the enactments. The Selangor enactment (s. 14) lists three broad categories of exempted information which are; 

(a) Classified information under the Official Secrets Act 1972, which if disclosed would seriously prejudice national security or national defence. 

(b) Confidential information obtained from a third party, another state or an international organisation, which if communicated would constitute an actionable breach of confidence or seriously prejudice the commercial or financial interest of a third party or relations with a state or international organisation from whom the information was obtained. 

(c) Information which if disclosed would prejudice the formulation of policy or development of the state. 

In addition to the above three categories of exempted information, an applicant may also be denied access under the Selangor enactment if the information applied for, 

a.                   Would interfere unreasonably with the operations of the department (s. 10 (3)(a)), 

2. Would be detrimental to the preservation of information after having regard to the physical nature of the information (s. 10 (3)(b)). 

3. Would involve an infringement of copyright (other than copyright owned by the State Government) subsisting in the information. In such a case, the information may be provided in a form in which the copyright would not be breached (s. 10 (3)(c)).  

4. If the information applied for is not in the possession of the department, or (s. 11), 

5. If the application is vexatious, unreasonable or repetitive (s. 12) 

6. Would involve the disclosure of personal information of an individual third party unless the third party has consented to the disclosure of the information or the person making the application is the legal guardian of the third party, the legal next of kin or the legal administrator of a deceased third party (s. 13). 

The Penang enactment has a longer list of exempted information which includes most of the types of information exempted under the Selangor enactment. The Penang enactment does not provide for vexatious applications but includes the following exemptions that are not included in the Selangor list of exemptions; 

a.       Information in court proceedings; 

2. Information affecting the State economy; 

3. Health and Safety 

4. Information affecting enforcement or administration of the law; 

5. Prevention or detection of crime 

The Penang enactment also takes a more protective approach to documents of the State Executive Council and its committees (SEC). The enactment (s. 11 (1) (b)) exempts, 

a.       Documents submitted for consideration by the SEC or created for such purpose. 

2. Official documents of deliberations and decisions of the SEC. 

3. Disclosure of information which would be in contempt of the State Legislative Assembly (SLA) if the exemption is required to avoid an infringement of the privileges of the State Legislative Assembly. 

However, the exemptions in (a) and (b) do not apply to documents containing statistical, technical or scientific material unless the disclosure would involve the disclosure of any deliberation or decision made by the State Executive Council (s. 11 (1) (b) (ii)). 

Power to Disclose Exempted Information 

Both enactments empower state departments and the state authority to override the disclosure restrictions on exempted information.  

Under the provisions of the Selangor enactment (15 (1) (b)), the State Government has the discretion to declassify confidential information, so that it may be accessible and give access to exempted information. The Penang enactment (S. 11 (2)(b)) confers a similar discretion on the State Authority. 

Both enactments also impose a duty, as opposed to a discretion (Selangor (s. 15 (1) (a); Penang s. 11 (2)(a)) on a department to grant access to exempted information if the public interest in disclosure outweighs the harm of disclosure.

Information Officers in both states may allow access to exempted information if the information is required for the investigation of an offence or misconduct (Selangor (s. 15 (1)(c); Penang s. 11 (2)(c)). 

Partial Disclosure 

Both enactments also allow for the disclosure of documents containing exempt information if the exemption information can be redacted from the document (Selangor s. 16; Penang s.12). 

Right to Appeal 

Both enactments establish mechanisms for individuals to appeal decisions on denied access, with independent appeals boards providing oversight. In Selangor, the appeal body is the State Information Board. In Penang, it is the State Appeals Board. Both bodies are established as quasi-judicial tribunals with the power to summon witnesses and take evidence under oath. However, the appeal provisions in the two enactments differ in scope and procedure.

Selangor (s.9) offers a broader range of reasons to appeal. In addition to outright rejection, an appeal can be made for dissatisfaction with the form of disclosure (e.g., incomplete or incorrect information) or delays in receiving the information. Penang (s.9), on the other hand, limits the grounds for appeal to cases where the application for information is rejected.

Moving Forward

The initiative shown by Selangor and Penang in enacting state-level Freedom of Information laws long before the federal government's commitment in 2023 is commendable. The state enactments provide a valuable starting point and can serve as basic models for the new federal legislation. They offer practical insights into how decentralization of information access through departmental-level management and the appointment of Information Officers can function in a legislative framework. The experiences of these states highlight important considerations such as the role of public outreach, the need for structured training, and the importance of having clear exemptions and procedural guidelines.

However, the judicial recognition of a right to information, as seen in the Harris Mohd Salleh v. Chief Secretary Government of Malaysia case in 2023, fundamentally changes the landscape. With this judicial affirmation of the right to information as a constitutional principle, any future FOI laws, including those of Selangor and Penang, must now be interpreted in light of this broader constitutional right. This recognition strengthens the public's access to information and places greater legal weight on the obligations of government bodies to disclose information. It ensures that the provisions of the enactments and the new federal law will be subject to constitutional scrutiny, making the right to information more robust and difficult to curtail arbitrarily. This legal development elevates the state's enactments, allowing them to evolve in line with constitutional principles and setting a high standard for future legislation.