This is purely educational as it’s being used as constitutional law study material for my Zurich, Switzerland-based Law College known as Rockfield College of Sciences & Technology, Tel. No. +41 76 701 21 47/ email: dean@rcstedu.ch. It is further submitted that the observations and comments expressed herein are not meant or intended to be sub judice at all since appeals are under way.
Many ill-informed, semi-trained and mistakenly maladjusted Malaysian legal practitioners seem to accept the High Court’s recent decision regarding the Article 42 provisions contained in the Federal Constitution relating to Royal pardons, respites, reprieves as part and parcel of the Royal prerogative of mercy. Many of these apparent semi-professionals seem to ignore the fact that any Article 42 matter must be adjudicated in an Article182 (Special Court) Federal Constitution jurisdiction. Why Najib’s lawyers failed to raise this constitutional issue is the raison d’ etre for this submission without any element of sub judice as appeals will be petitioned over this jurisdictionally violative decision.
First let me outline some definitions. ‘Respite’ means relief from something unpleasant or difficult. It’s within the jurisdiction of the Royal prerogative of mercy to even free Najib outright like that done for Anwar Ibrahim post GE-14. The High Court, in paragraph [22] of the decision acknowledges the parties’ contentions that ‘an Addendum Order operates as a respite. The contending parties went on to state that ‘Unlike a pardon, respite is the total prerogative of the YdPA which does not invite the advisory function of the Pardons Board.’
‘Reprieve’ means cancel or postpone a punishment for someone. Again, this Royal prerogative of mercy was invoked for the Royal pardon that freed Anwar Ibrahim. Thus, a respite and a reprieve gathers momentum as an Addendum Order through a sua motu or sua sponte decision of the Yang d-Pertuan Agong (YdPA) which is obviously communicated to the Pardons Board secretly or silently. The sole factual issue here is the proper and appropriate jurisdiction of the Royal pardon as I will elaborate.
Paragraph [23] of the High Court decision gets even more revealing when the parties contend: ‘Thirdly, even if the Pardons Board has to be convened before a reprieve or respite is issued, the YdPA is not bound to decide within the Pardons Board meeting.’ Subsequently, in paragraph [30] the High Court explains that ‘Mercy is not the subject of legal rights. Legal rights fall within the province of the courts, Once legal rights end, the individual’s recourse is to petition for mercy. The exercise of such mercy is the prerogative of the YdPA, who has the discretion to take into account matters which are extra judicial.’
The High Court admits, accepts and acknowledges that the prerogative of mercy is extra judicial, so why in the name of honest jurisprudence did the Judge not invoke Article 182 Federal Court to assign the proper and appropriate province and jurisdiction of the Special Court, but instead invoked Article 43 of the Prisons Act 1995, Section 4 and Section 25(2) of the Courts of Judicature Act 1964, and Section 44 of the Specific Relief Act of 1950 that are wholly and totally subsumed by Article 42 and Article 182 of the Federal Constitution because our jurisprudence requires us to obey and practice constitutional supremacy and not parliamentary supremacy.
In paragraph [32] the High Court cited and quoted Public Prosecutor v Soon Seng Sia [1979] 2 MLJ 170 with special mention of jurisdiction: ‘ When considering whether to confirm, commute, remit or pardon, His Majesty does not sit as a court, is entitled to take into consideration matters which courts bound by the law of evidence cannot take into account, and decides each case on grounds of public policy; such decisions are a matter solely for the executive. We cannot confirm or vary them; we have no jurisdiction to do so.’ Again, why did the High Court assume province and jurisdiction to hear a constitutional matter under Article 42? Why the constitutional somersault? Why the judicial confidence without clarity?
In Paragraph [31] the High Court cited and quoted Sim Kie Chon v Superintendent of Pudu Prison & Ors. [1985] 2 MLJ 385. concerning, among other things, the YdPA’s powers to decide ‘without fear of influence from any quarter.’ This clearly and plainly ousts the jurisdictions of Parliament, the Prime Minister, the Cabinet and even the Pardons Board. The Royal prerogative of mercy is thus extra judicial. This is the whole point that the High Court chose to miss, avoid, evade or consider. It must be noted that the High Court took jurisdiction to say it had no jurisdiction to hear any matter relating to a Royal pardon, especially the existence and veracity of the Addendum Order.
One so-called “lawyer” accused me of being a ‘fake judge and law professor’ because he mistakenly and ignorantly misread Article 182(2) Federal Constitution (Special Court) which he shamelessly and shamefully claimed was all about bringing suit against Malaysian Royalty. Article 182(2) says this among other things: “Any proceedings by or against the Yang di_Pertuan Agong…” It’s plain and clear as a nose on any legal practitioner’s face that the word “by” in Article 182(2) Federal Constitution grants, not just implies, the YdPA the power to initiate a lawsuit involving Royal pardons, respites and reprieves ifand when some awakened and enlightened lawyer chose to invoke the Special Court’s jurisdiction. But that, unfortunately, did not happen.
If the Federal Constitution is to remain the supreme law of the land, then there ought to be a law to punish anyone who manifestly, mistakenly, maliciously, unjustly and wrongfully misconstrues its provisions in an apparent effort to grant and garland supremacy to Parliament as if the colonial yoke and chokehold is still evident and relevant. The Bench and the Bar in Malaysia must begin to take the Federal Constitution seriously as the one and only supreme law of the land despite the fact we were not blessed with a preamble like the American and Indian constitutions. After all, Malaysian judges are constitutionally mandated to modify any existing law that includes amendment, adaptation and repeal - Article 162(6) and Article 162(7) Federal Constitution. It cannot get any more plain, clear and cogent. The judicial power to modify obviously excludes and excuses parliamentary practices, processes and procedures notwithstanding Article 159 (Amendment of the Constitution).
Again the powers and authority of Malaysian Royalty is tellingly clear in Article 159 (5): A making an amendment to Clause (4) of Article 10, any law [assed thereunder, the provisions of Part III, Article 38, 63 (4), 70, 71 (1), 72 (4), 152 or 153 or to this Clause shall not be passed without the consent of the Conference of Rulers.
In this context, Malaysians must come to terms that the banal and venal 3-R refers to race, religion and region. and not Royalty. As long as we have not just a ceremonial monarchy, Malaysians must necessarily understand and know that only the YdPA can pardon, and not the Prime Minister and the Cabinet despite the trite “ministerial advice” provision. Constitutional immaturity rules and reigns our nation. It is hoped it will come of age soon enough so that the public can be certain that the judicial branch of government is on all fours with the separation of powers.
Email the writer: chiefjudge@secamtektektribe.org