The reaction to last Friday's announcement by Pardon Board on the decision by the YDPA on Dato Seri Najib's appeal for pardon is divided along partisan line. UMNO was obviously disappointed. They pinned their hope to regain lost ground on Najib's release.
Meanwhile, the leaders of PH kept mum but relieved with reaction to UMNO's displeasure from their grassroot. There were voices demanding explanation for the decision including the opportunistic PAS ready to blame at government. At one politically convenient time in the past, they were sympathetic to Najib.
C4, was quiet on Lim Guan Eng case and DNAA cases other than Zahid's, but unreservedly expressed opposition against mercy for Najib and suggested for reform of the pardon process. The process involves Pardon Board, but it is the prerogative of YDPA.
Section 42 of the Federal Constitution is clear on this.
No set reason for pardon
If this extract from an article on the history of US Presidential pardon is something to go, there seemed to be no set reasons for pardon:
Presidents throughout American history have exercised their constitutional authority granted by the pardon power. first exercised the pardon power in 1795 after he issued amnesty to those engaged in Pennsylvania’s Whiskey Rebellion. granted amnesty to any citizen convicted of a crime under the Alien and Sedition Acts. used clemency to encourage desertions from the Confederate Army. In 1868, pardon of Jefferson Davis, the former president of the Confederacy, was perhaps the most controversial pardon to date.
In the twentieth century, commutation of twenty-four political prisoners, including socialist leader Eugene Debs, proved controversial. In 1971, commuted the sentence of James Hoffa, former president of the International Brotherhood of Teamsters who was convicted for pension fund fraud and jury tampering. Of course, 1974 pardon of Richard Nixon was arguably the most famous exercise of executive clemency in American history. After Ford’s pardon of Nixon, his approval rating fell over twenty points in the ensuing days. Many political analysts conclude that Ford never recovered from the pardon, thus severely damaging his chances to win election to the White House in 1976. Ford explained that he granted the pardon as an act of mercy to Nixon and for the broader purpose of restoring domestic tranquility in the nation after Watergate.
Although some pardons are controversial, executive grants of clemency are not rare in American history. In fact, most clemency cases are “all but anonymous.” According to Department of Justice statistics, the total number of executive clemency actions from 1900 to 2017 is 22,485. In recent decades, the number of issued clemency grants have declined as well as the percentage of granted petitions.
From the beginning of administration (1981) to the conclusion of presidency (2017), there have been 3,069 acts of executive clemency. There is also considerable variation amongst presidents. Since the mid-twentieth century, Barack Obama issued the most pardons and commutations (1,927) for two-term presidents. In comparison, issued the fewest number of clemency actions (200) for a two-term president.
The Office of the Pardon Attorney at the Department of Justice issues guidelines for the application of clemency, but presidents do not need to follow them. The Pardon Attorney serves in an advisory, not decision making, capacity. Recommendations for pardons are routed through the Deputy Attorney General, who supervises the Pardon Attorney. Final recommendations are made to the Office of White House Counsel, who advises the president on such petitions.
An extract from Wikipedia here, below:
Pardons can be granted in many countries when individuals are deemed to have demonstrated that they have "paid their debt to society", or are otherwise considered to be deserving of them. In some jurisdictions of some nations, accepting a pardon may implicitly constitute an admission of guilt; the offer is refused in some cases. Cases of wrongful conviction are in recent times more often dealt with by appeal rather than by pardon; however, a pardon is sometimes offered when innocence is undisputed in order to avoid the costs that are associated with a retrial. Clemency plays a critical role when capital punishment exists in a jurisdiction.
Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone who is seen as wrongly convicted. Pardons can also be a source of controversy. In extreme cases, some pardons may be seen as acts of corruption by officials in the form of granting effective immunity as political favors.
YDPA may have taken into consideration of Anwar's commitment to eradicate corruption.
On the Friday the Pardon Board decision was officially released, the media coverpage was new YDPA Sultan Ibrahim's expressed backing of effort to improve governance and eradicate corruption.
Agong's Decision
On the issue of Pardon Board, Shad Saleem Faruqi wrote in the Star today. An extract below:
A long line of judicial decisions holds that in the exercise of the power of pardon, the King is not bound by the Board’s advice and acts at his own discretion. Among the cases are: PP v Soon Seng Sia Heng (1979), Chiow Thiam Guan v Supt of Pudu Prisons (1983), Supt of Pudu Prisons v Sim Kie Chon (1986), Karpal Singh v Sultan of Selangor (1988), Juraimi Husin v Pardons Board (2002), Yong Vui Kong v AG (2011), and Datuk Seri Anwar Ibrahim v Mohd Khairul Azam (2023).
Third, the Board gave no reasons for its decision, as indeed it is not bound to. Its deliberations are secret.
Nevertheless, many citizens wish to know why a high-profile and politically sensitive verdict that took more than four years to reach, cost millions of ringgit and witnessed extraordinary courage and integrity from nine judges at three levels of the court system, had to be undermined this way without cogent reasons.
However, it must be noted that around the world, an executive decision to pardon is not an appeal from the court. As was said in the Anwar case, the Pardon Authority does not sit as a court; is entitled to take into consideration matters that the courts cannot take into account; and decides each case on grounds of public policy. Pardon is an exercise in mercy and not a determination in law. Further, in most countries including Malaysia, it is not reviewable by a court of law – Sim Kie Chon (1986).
Fourth, the Board ordained that if the reduced fine of RM50mil is not paid, then the imprisonment is extended by another year.
Fifth, the Board specified the date of release to be Aug 23, 2028 and the extended date to be Aug 23, 2029. Perhaps there is a minor error here – the correct date should be Aug 22 and not Aug 23 as Najib commenced his prison term on Aug 23, 2022.
Euphoria in UMNO
This was not the news UMNO wanted to hear, but the bad news reached this blogger's ears the evening of the passing away of Rafi Awang Kecik and before Pardon Board's last Monday meeting.
Joceline Tan wrote on UMNO's euphoria on Saturday below:
But Bossku’s supporters had demanded no less than a full pardon whereas the Pakatan base wanted Najib to serve out his sentence.
Umno president Datuk Seri Dr Ahmad Zahid Hamidi is bearing the brunt of the disappointment and anger in his party.
He is being scolded and even cursed in some Umno chatgroups and there are renewed calls for him to resign.
Zahid became the convenient target of their anger.
Umno has to bear the brunt of being unable to keep its promise to free Najib. It cannot blame Pakatan which won seats riding on the 1MDB issue.
In fact, Pakatan leaders are now facing pressure and condemnation from their own base for going soft on the “kleptocrat”.
Law Minister Datuk Seri Azalina Othman Said is also in the crosshairs of the Bossku group.
Najib loyalist Isham Jalil took to Facebook to criticise Azalina for repeatedly telling people that the decision is the prerogative of the Yang di-Pertuan Agong.
He reminded her of her powerful speech at the special Umno assembly after Najib was jailed during which Azalina had said to loud applause: “If we have the power, we must use it to help our leader otherwise we are stupid.”
“What is the point of being in government and having the deputy prime minister post if Umno cannot do more for Najib?” said Isham who was recently sacked from Umno.
Beg to differ with Isham Jalil's attitude and Azalina's speech. Past practises to right the inappropriate should no more be acceptable in today's politics.
By the way, Azalina is not solely to blame. Isham too went around the UMNO divisions with the same promise.
The supreme council which held an emergency meeting yesterday morning has attributed the decision to the former Yang di-Pertuan Agong although it was widely claimed that Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah had been inclined towards a royal pardon.
A well-placed source said the top Umno leadership knew as early as five days ago that Najib would not be pardoned.
Ahmad Zahid was said to be so upset that he had cried and his office had to cancel several of his appointments.
On hindsight, there will always be experts.
Some have suggested that Umno should have tried to manage expectations in the party instead of letting the dream of a full pardon get out of hand.
At the grassroot, it was beyond reasons:
But who would have dared to tell Umno members that a pardon is not realistic?
Umno supreme council member Datuk Seri Alwi Che Ahmad had also tried to placate those hurling abuse at Umno leaders.
In a video message, he held up his last three fingers, saying the middle finger (jari hantu) represented those who could not be bothered about the issue while the ring finger (jari manis) represented those in Pakatan who are against a pardon.
He said the last and shortest finger (jari kelingking) represented Umno which means that the pro-pardon group is outnumbered by those who are against or indifferent.
But emotions are running high and people are not in the mood for rational arguments.
The problem in UMNO is the old indifference to others' views and situation. Too long in position of power and getting things their way.
Some pointed out that Anwar was already waist-deep in murky water after Ahmad Zahid was granted the DNAA. Had Najib been pardoned, the water would have reached Anwar’s neck.
Ahmad Zahid is also wading in dangerous water. He has the overwhelming support of the supreme council but what about the sea of Umno members out there?
Its no more a Malaysia in which what UMNO wanted in the past UMNO could flex its power to get.
What lies ahead?
The official communique from UMNO is they respect the decision of YDPA and will continue with effort to seek for Najib's release. If it is any consolation, Shad wrote below:
In accordance with the Board’s order, Najib can be released from custody on Aug 23, 2028. However, there are several variable and unpredictable factors.
First, there is no bar to repeated acts of clemency. In due course of time, he may receive another remission to hasten his release.
Second, under Section 43 of the Prisons Regulations 2000, a prisoner sentenced to a term of imprisonment exceeding one month may be granted remission of one-third of his sentence for good behaviour. However, this is subject to the terms of an order of the Pardons Board, and that order is to release him on Aug 23, 2028. So, the one-third remission rule cannot apply to Najib.
Third, under Section 46A of the Prisons Act, there are complicated rules about parole. A prisoner may be released to serve any part of his sentence outside the prison pursuant to a Parole Order.
Fourth, as there is no bar to repeated acts of clemency, Najib could be gifted with another act of clemency and given a full pardon, which would wipe away the conviction and all disabilities.
Retired judge, Hamid Sultan Abu Backer, whose sympathetic to the unfair treatment Najib gets in court suggested for another bid for full pardon with YDPA Sultan Ibrahim in the same manner late Mokhtar Hashim received his release.
To do so, UMNO must be more serious to push for RCI against Tommy Thomas and judicial reform. It was the basis used by DPP to withdrawal Zahid's Yayasan Akal Budi case.
There is an immediate plan to get a petition for a million signature. The last effort done had no UMNO support and managed slightly more than 700,000 signatures online. Prove they could secure 2 million signatories.
Most important, the basis and narrative for the petition must be legally sound, highlight extraordinary circumstances acceptable to YDPA and get public buy-in. The earlier effort was inadequate.
A piece of advice to UMNO:
Sometimes one need mass media and hype to achieve the desired outcome from the masses such as getting votes during political campaign. Most of the time, to achieve the task or objective involving few decision makers is not to be noisy. Learn methods of complex selling from supersalesman or policy lobby of Washington and UN.
PR at times is useful to swing public opinion and indirectly pressure the few decision makers. But not all the time and still its about the few decision makers. PR effort done in cocophonic fashion, too many heros, stubborn prima donna, too much emotional housewives' tales and absence of clear takeaways will only result in poor public buy-in and a disastrous failure ensue.
The result speaks for itself.
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