Shafee’s claims over Najib’s pardon fuel more questions, puts secrecy of deliberations under the spotlight

“I am told, and I’m confident that this happened, otherwise I wouldn’t dare tell you. On the 29th (of January), the Yang di-Pertuan Agong (Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah) was thinking of a full pardon. But he wanted to be sure, he passed votes around, four empty vote papers, he passed them around, to the four non-permanent members. Put ‘Yes’ or ‘No’ for a full pardon. The results came back. I don’t know what’s the full result. Then he said, ‘Never mind, I have decided on the alternative’. And the alternative is what it is, you’ve got the result.”

Those were the words of Datuk Seri Najib Razak’s lawyer, Tan Sri Muhammad Shafee Abdullah at the lobby of the Kuala Lumpur Court Complex in Jalan Duta, yesterday.

Najib, in 2022, was sentenced to 12 years in jail for graft and abuse of power for misappropriating RM42 million from SRC International Sdn Bhd. He was also fined RM210 million. On Feb 2, the Pardons Board announced that Najib would receive a “50 per cent reduction” in his sentence. This means that he will be released on Aug 23, 2028, instead of 2034, and will have to pay a fine of RM50 million.

Shafee’s claims came like a thunderclap from out of the blue, setting off a series of questions:

  1. Can’t the Yang di-Pertuan Agong make his own decision to pardon an accused person?
  2. Can the details of the Pardons Board’s meetings be made public?
  3. How did Shafee know what Al-Sultan Abdullah was ‘thinking’?
  4. Is it normal practice for a lawyer of a prisoner to divulge details of what had transpired during a Pardons Board meeting?
  5. Is Shafee duty-bound to inform the public where he got the details of what had transpired during the Jan 29 meeting?
  6. Would such information, if true, motivate Najib and Umno supporters to turn their backs on the so-called unity government?
  7. Would this sequence of events put the new Malaysian King in a spot?

 

Article 42(1) of the Federal Constitution states: “The Yang di-Pertuan Agong has the power to grant pardons, reprieves, and respites in respect to all offences in the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya.”

The Pardons Board is required, by the Federal Constitution, to tender its advice to the Yang di-Pertuan Agong. However, the advice by the board is not binding, as seen in the case of Sim Kie Chon v Superintendent of Pudu Prison & Ors [1985], in which the then Supreme Court ruled that the Pardons Board is only an advisory body and makes no decision whatsoever as such, but only tenders advice to (the king) for the purpose of the exercise of his powers of clemency under Article 42 of the Federal Constitution.

Some say that Article 40(1A) must not be ignored. It reads: “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 Yang di-Pertuan Agong shall accept and act in accordance with such advice.”

Can the details of the Pardons Board’s meetings be made public?

Former president of the Malaysian Bar, Salim Bashir Bhaskaran, who has dealt with clients who have applied for pardons, said the deliberations of the Pardons Board is “always a secret”.

“I have never come across an instance where we are told how the Pardons Board arrived at their decisions,” said Salim.

“Under normal circumstances, we are only informed of the outcome of the deliberations. This outcome is signed by the secretariat of the Pardons Board.”

The Pardons Board, Salim said, is also not required to state how they arrived at their decisions.

“It is not a judicial process. The deliberations are always secret,” he said.

Asked about the claims made by Shafee, Salim said: “We are curious to know as to how he came to know (about what transpired), as we have no idea how this information was obtained.”

Salim added that a pardon was the prerogative of, and granted at the mercy of the Agong.

“Whether the Agong takes into account the deliberations of the members of the Pardons Board is entirely at the discretion of the King.”

The Pardons Board, Salim said, is required, under Article 42(9) of the Federal Constitution, to consider any written report which may be given by the Attorney-General before tendering its advice to the Agong to consider.

However, this written report, Salim said, is not disclosed to the applicant, nor his counsel.

“What transpires in the Pardons Board meeting is only privy to the Agong and members of the Pardons Board,” he added.

Shafee’s claims may seem to pacify those clamouring for Najib’s early release but will also infuriate those who have come to adore Al-Sultan Abdullah, who enjoyed a memorable five-year reign, despite the challenges of the Covid-19 pandemic and the protracted political imbroglio.

It also raises questions as to how Shafee would know of Al-Sultan Abdullah’s intentions. Can he now read minds? Did Al-Sultan Abdullah tell him of his intentions? Did someone from the Pardons Board tell Shafee what Al-Sultan Abdullah may have allegedly said during the deliberations?

If details of what took place in the meeting can be made public, why can’t the Pardons Board be transparent about it?

Shafee’s allegations came barely two days after Prime Minister Datuk Seri Anwar Ibrahim said that criticisms and condemnations regarding the decision by the Pardons Board must stop, adding that the board’s decision should be respected by all.

Yet, this is highly unlikely, with Bersih being the latest to threaten to stage yet another street protest. Bersih had been instrumental in swinging public opinion against Najib and his Barisan Nasional coalition, which resulted in BN losing the 14th General Election, thereby ending its 60-year political dominance. The opposition bloc, notably Anwar, was a regular feature at Bersih rallies during BN’s rule. Bersih’s decision to stage street protests against the Pardons Board’s decision could be seen as a direct affront to Anwar’s administration.

What remains clear is that the statement by the Pardons Board secretariat on Feb 2 was poorly worded, with the emphasis being on Najib alone when there were four other applications for pardons, whose status remains unknown.

The fact that the statement had the words “50 per cent reduction in jail time” reminds many of the annual discount fiesta for traffic summonses given out by the Royal Malaysia Police.

Despite the clemency, a “very, very disappointed” Najib is considering a new request for a full pardon. Some say this may put Malaysia’s new King, Sultan Ibrahim, in a spot. Others wonder if details of what will transpire in the upcoming meetings will also be made public.

It remains to be seen if Shafee’s revelations will set a new practice on how future applicants of pardons and their counsels will react, if and when, the decisions are not in their favour.