Abu Talib Othman, who served as AG between 1980 and 1993, said the Yang di-Pertuan Agong was entitled to insist that all petitions for pardon in respect of offences committed in Kuala Lumpur, Labuan and Putrajaya be lodged with the Federal Territories’ Pardons Board (FTPB).
He said Article 42(8) of the Federal Constitution calls for the FTPB to meet in the presence of the king who shall preside over it.
He also pointed to Article 42(9) which makes it mandatory for the FTPB to consider a written opinion delivered by the AG before tendering its advice to the king on any pardon application.
“The AG’s opinion has wide legal implications,” said Abu Talib, adding that under the constitution, the king, when exercising his prerogative of mercy, is required to act on the advice of the pardons board “and not according to his whims and fancy”.
“Decisions made by the Yang di-Pertuan Agong on the advice of the FTPB must comply with all applicable legal provisions to prevent such actions from being challenged in court as unlawful,” said the former AG.
Abu Talib was commenting on a statement issued by the AGC on the instructions of Yang di-Pertuan Agong Sultan Ibrahim.
In the statement, the AGC said that all pardon applications concerning offences committed within the three federal territories must be submitted to the FTPB.
Abu Talib said the AGC’s statement was in line with the clemency provisions contained in the constitution, which empower the king, on the FTPB’s advice, to grant pardons or postpone or commute sentences meted out by the courts.
The AGC’s statement came amid continued speculation over a purported decree issued by former king Al-Sultan Abdullah Sultan Ahmad Shah.
In July 2020, the former prime minister was convicted by the High Court of seven charges of abuse of power, criminal breach of trust and money laundering. He was sentenced to 12 years’ imprisonment and a fine of RM210 million.
Both the Court of Appeal and the Federal Court subsequently upheld the conviction and sentence, which Najib began to serve on Aug 23, 2022.
On Feb 2 this year, the FTPB announced that Najib’s sentence had been reduced to a six-year jail term, and his fine lowered to RM50 million.
Najib, however, insists that the FTPB had failed to announce and give effect to the supplementary decree issued by Al-Sultan Abdullah allowing him to serve the remainder of the imprisonment term under house arrest.
The AGC’s statement also said that all incarcerated prisoners wishing to serve the remainder of their sentences under house arrest, including Najib, may submit a petition for pardon to the FTPB in accordance with procedures established by law.
Abu Talib said Najib was not prohibited from filing a second clemency petition seeking to be placed under house arrest.
“Nothing in the constitution limits a prisoner from making such applications,” he told FMT.
Lawyer K A Ramu said a second application to the pardons board may be a “better and more effective remedy”.
“In the eyes of the law, the applicant is guilty as charged. Only the board can vary the sentence imposed by the courts.”
Ramu cited the case of the late Mokhtar Hashim, who was convicted for the 1982 murder of then Gemencheh assemblyman Taha Talib and had his death sentence commuted to life imprisonment by the Negeri Sembilan Pardons Board.
The lawyer said Mokhtar, a former youth and sport minister, made a second application for clemency which saw his sentence further reduced to a fixed jail term, allowing him to go free in 1991.
On Jan 6 next year, the Court of Appeal will hear Najib’s application to adduce fresh evidence to support his appeal for leave to bring judicial review proceedings in a bid to enforce the terms of the purported supplementary order.
He wants the court to compel the government to execute the former king’s purported decree by placing him under house arrest.