To err is human, to forgive divine.
– Alexander Pope, English poet
There is a higher law, and the executive monarchy’s constitutionally endorsed power, involved in the Pardons Board Addendum concerning a home arrest Order for a former jailed prime minister:
“We have not created the heavens and the earth and everything in between except for a purpose. And the Hour is certain to come, so forgive graciously.” (Holy Quran 15:85) (English version).
The house arrest Addendum has wreaked social and political havoc as Malaysians are encountering a thunderous clash of a cacophony of ideas, opinions, viewpoints, uncertainty, confusion, disbelief and outrage.
This is not about the innocence or guilt of the jailed former prime minister, but the constitutional executive power of the Yang di-Pertuan Agong to decree an Addendum as constitutionally issued by the Pardons Board which he helmed.
Article 40(3) Federal Constitution: the Agong has power to “act after consultation with or on the recommendation of any person or body of persons other than the Cabinet …” This is crucial when debating the Addendum. The Agong’s power is constitutionally unquestionable.
Article 40(3) is usually ignored when stakeholders insist that the Agong must act in accordance with the advice of the Cabinet or of a Minister as enumerated in Article 40(1) and Article 40(1A) even if erroneous advice is offered.
The prime issue is the intent, content, extent, scope, scale and effect of a Royal pardon as enumerated in Article 42 Federal Constitution. The Agong’s power is beyond question.
Article 38(e) empowers the Conference of Rulers in the “granting of pardons, reprieves and respites, or of remitting, suspending or commuting sentences under Clause (12) of Article 42.” Executive monarchy is unmistakable.
One curious anomaly emerges in Article 42(2): “if the sentence was passed by a court-martial or by a civil court exercising …” The sentence imposed upon the former prime minister was from a criminal court. A purported commission by omission?
Then there is Article 42(10) which seemingly upends Article 42(2) where the phrase “power to grant pardons … on sentences imposed by any court established under any law regulating Islamic religious affairs . . .”
The phrase “any court” in Article 42(2) is saying that the power to grant pardons, reprieves, respites, etc. relates to sentences issued by sharia courts because they alone regulate Islamic religious affairs.
Conflating Article 42(2) and 42(10), one could deduce that the civil court, sharia court and criminal court constitute three different jurisdictions. Does this oust the power of pardon to a sentence imposed by a criminal court? Article 162(6) in the hands of an independent judiciary can fix this permanently since the letter of the law can be vicious.
Constitutionally, the Pardons Board comprises the Attorney General, the Chief Minister of a State, and not more than three membersappointed by the Ruler or Yang di-Pertua Negeri. The advice of the Pardons Board is a key issue under Article 42(4)(b).
The Prime Minister is constitutionally barred from accompanying the Agong during the Pardons Board proceedings – Article 42 (12)(b)(i). That would mean politicians are not to interfere in these proceedings. This is a crucial element.
But the Chief minister of a State is a politician, and the Attorney General is appointed by the Prime Minister. It is otherwise clear, evident and obvious that the Pardons Board, as helmed by the Yang di-Pertuan Agong, is a non-political entity because by convention, His Majesty is required to be above partisan politics. It’s naïve to say or believe that His Majesty should not dabble in politics otherwise as every facet of life is political.
Any novice in constitutional law will quickly realise that we have an executive monarchy, not merely a rubber-stamp constitutional monarchy, And the King can do no wrong – rex non potest peccare (Latin) – is a legally endorsed aphorism sometimes called the “royal prerogative.”
Executive monarchy is emblazoned all over the Federal Constitution: Article 32 (Supreme Head of the Federation, and his Consort); Article 34(8)(a) power to amend State Constitution; Article 35, Article 38 (Conference of Rulers), Article 39 (Executive authority of Federation), and Article 41 (Supreme command of armed forces).
The executive authority of the Yang di-Pertuan Agong is further evident in Article 150 (Proclamation of emergency) and Article 55 (Summoning, prorogation and dissolution of Parliament).
It’s a weak argument that house arrest is not mentioned in the Federal Constitution, or any state or federal law. For example, “coalition government,” separation of powers,” “independent judiciary,” and “basic structure doctrine,” are not enumerated in the Federal Constitution, state or federal law, either. Does that make them unconstitutional and void?
Another bee-in-the-bonnet is the disclosure of the Minutes of the Pardons Board, the Addendum, and the written opinion of the Attorney General to the Pardons Board. Did the Official Secrets Act 1972 rear its ugly head when somebody decided to be fluent in awkward silence?
PMX must act now to come to terms with the felt necessities of the times. Silence and a non-committal stance is not statesmanship or leadership.
Questioning the validity of a Royal decree is nothing but lese majeste. Our adat prohibits the disparaging of Malaysian Royalty unless there is probative foul play that invokes the Special Court (Article 183).
The thread holding the sword of Damocles hanging ominously over PMX’s head got thinner and weaker as chances of eliciting mastermind Jho Low’s testimony gets slimmer and slimmer.
The views expressed here are those of the columnist and do not necessarily represent the views of Sarawak Tribune.
