Few days ago, social media went viral on news Dato Seri Ismail Sabri fainted and photo viral of him sleeping in hospital. At the same time, news circulated of four of his former staff at PMO remanded for investigation for alleged corruption or money laundering involving more than RM100 million.
The investigation came to light days prior to the above assembly organised by the state government of Pahang, blessed with doa by the state Mufti and to be graced by Sultan Abdullah's attendance. There were whispering of Ismail's involvement and countless planning and discussion held in Dubai to eventually led to the event.
It led political pundits to speculate the investigation was to foil the event and Ismail's hospitalisation was merely an act. However, its just a spurious coincident and apparently the investigation have been on-going awaiting an organisation reshuffle to initiate the pounce. The names appeared in the court database and have since been released.
Nevertheless, one could presume the assembly tomorrow relate with the outstanding matter on the controversial Addendum to commute Najib's sentence to house arrest issued by the former Agong.
The case proceeding seemed to be purposely delayed with the next court date on March 24th merely for case management. It is an indication of the delicate nature of the matter that involves the previous Agong and could encroach into the tenure of the present Agong.
In the meanwhile and perhaps make matter more complex, the AGC applied for gag order and appeal to Federal Court on the Court of Appeal judgement that the Addendum exist.
The Najib Addendum controversy centers on a decree issued by the then Agong to commute part of the former Prime Minister's sentence to house arrest. The addendum attached to this decree was reportedly kept out of public view for nearly a year by the former Attorney General Tan Sri Terrirudin.
Critics argue that withholding the addendum undermined transparency and accountability in the judicial process, raising questions about the motivations behind the secrecy. Supporters, however, contended that the decision was made for legal or procedural reasons.
Overall, the issue has fueled broader debates about how political and judicial decisions are managed and disclosed in Malaysia. Also in question is the legality and constitutionality of the addendum involving the Agong's discretion to offer a pardon and reduce sentencing under Malaysian law.
Article 42: Not valid
The Istana Negara and Attorney General have reiterated several time on the pardoning power of the Agong under Article 42 of the Federal Constitution of Malaysia. Agong has the power to grant pardons, reprieves, and respites for offenses committed in the Federal Territories (e.g., Kuala Lumpur). For offenses in states, the respective state rulers or governors hold this power.
His Majesty is to act based on the advice of the Pardons Board, which includes the Attorney General, the Federal Territories Minister, and other members appointed by the Agong. In other word, the interpretation is that the Agong's discretion is not absolute but exercised based on the recommendations of the Pardons Board.
Consequently, the existence and validity of the alleged Najib Addendum is disputed. If such an Addendum exists, it need to comply with the constitutional and legal procedures, including being issued on the advice of the Pardons Board. Addendum issued without following proper procedures is deemed unconstitutional and legally invalid.
Agong, acting on the Pardons Board's advice, has the constitutional authority to reduce a sentence or commute it to a lesser punishment (e.g., house arrest). However, any decision need be made "transparently" and in accordance with the law. If the process was opaque or bypassed established procedures, it could be challenged in court.
Article 42: Remain valid
The counter argument refers to Article 42 of the Federal Constitution of Malaysia. in which Agong is vested with broad discretionary powers to grant pardons, reprieves, respites, or remissions of punishment.
Legally, Agong's decision to commute or modify a sentence — including through supplemental documents such as an addendum — is constitutionally authorised, provided that the proper processes are observed.
In determining the legality of the Addendum, the Constitutional authority lies with Agong to issue a decree and invoke the power to pardon. As long as it is issued within the framework of Article 72, it is legally valid. The Addendum served to clarify the terms and conditions of the commutation, and its content falls within the discretionary scope granted to Agong.
On the delayed disclosure of the Addendum which raised concerns on transparency and accountability, it is argued that it does not automatically affect its legal standing. The key issue is whether the internal process—such as advice received from the relevant ministries and adherence to statutory procedures—was properly followed.
Agong's discretion in the power to grant pardons and commute sentences in Article 42 is an established constitutional prerogative and is traditionally seen as non-justiciable, meaning that judicial review of such decisions is very limited.
Transparency
The discretion to reduce or modify sentencing is inherently political and executive in nature, thus it comes with the expectations for transparency and good governance. Transparency and adherence to constitutional principles are critical to maintaining public trust in the monarchy and the legal system.
The issue became highly politicised given Najib as a former Prime Minister, his prominence and the 1MDB scandal's significance in Malaysian politics. The reality check is the law does not prescribed any detailed procedural requirements for public disclosure of every elements attached to the royal discretion for pardon.
Extending it further, the alleged concealment of the Addendum by the former AG relates to legal questions on transparency and due process. It is justified that he is criticised for lacking accountability and inextricable part of the blame is levied at political leadership.
Nevertheless, his action does not should not infringe on the constitutional powers of the Agong. The legality hinges on whether the Addendum was issued under the proper legal authority and within the constitutional framework, rather than on its immediate public availability.
Legal Challenge, Political Repurcussion
Najib's legal team are seeking to enforce the alleged Addendum, but its validity remains untested in court. Critics argue that any attempt to reduce Najib's sentence through an undisclosed addendum undermines the rule of law and public confidence in the justice system.
In summary, if the Addendum is proven to have been improperly issued or concealed, it could lead to legal and political repercussions, including potential judicial review. While the Agong has constitutional authority to grant pardons and reduce sentences, the legality of the alleged Addendum depends on whether proper procedures were followed.
On the other hand, the Addendum could be deemed as legally valid and constitutional if it was issued under the Agong’s pardon powers as provided in Article 42 of the Federal Constitution. While the delayed disclosure may be criticised for lacking transparency, it does not inherently compromise the legality or constitutionality of the decision, assuming all proper procedures were followed in the issuance of the pardon and its accompanying documents.
Its concealment and the lack of transparency raise serious constitutional and legal concerns, which may require judicial intervention to resolve.
Beyond the courts
Not everything can find its resolution from court interpretation. So do the limited ability of judiciary to appreciate the injustice of regime change in play.
According to the view of certain senior lawyers and retired judges, the Addendum issue is beyond the purview of judges and court. So is the opinion of a former member of the Parole board. For one, the status of the Monarchy lies above executive, judiciary and Parliament.
Should the decision of a Sovereign be left to the administration or interpretation or discussion of the lower executive or court or houses, it demeans the status of the royal institution.
Malay rulers are inextricably linked to the special rights of the Malays as the son of soil of the Malay archipelago. The legitimacy of the sovereignty and the Constitution of the country lies in Malay history and Sultans.
This issue should not be reduced to the petty question on the interpretation of the law or conformity to procedures or court room narratives. It is not even about Najib and his alleged crimes.
A senior retired judge said, it touched on the "maruah" or honour of the Malay rulers, thus beyond the discretion of judges. Ultimately the solution to this impasses lies with the consensus of the Royal Council without undue influences and interferences from the executive or court or houses.
Perhaps it is beyond the comprehension of Malaysians with aspirations to see the law stands above all. Do not underestimate the sensitivity of the masses for insult on the rulers and encroachment into status of Malay special rights.
The politics at work behind the Addendum decision has to end and compromise seek. The constitutional power and role of the Rulers have to be clarified, refined and reinstated. To tame the anger and preserve the ruling government, there need to be a sacrificial lamb
It should be only one. So pick one.
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