KUALA LUMPUR (Feb 20): The power to grant an individual a pardon is not the sole prerogative of the Yang di-Pertuan Agong, and the decision to do so is potentially not immune to be reviewed by the courts, according to constitutional expert Emeritus Professor Datuk Dr Shad Saleem Faruqi.

Shad said the Federal Constitution outlines the basic process for the King to exercise the power of pardons, and therefore makes it not a prerogative of the ruler.

“I humbly submit that the word prerogative is an error of jurisprudence. Prerogatives are by definition inherent, non-statutory, common law attributes of monarchy," Shad said, referring to court rulings in relation to pardons.

"The use of prerogative is suitable for the UK, where there is an unwritten constitution, but wholly inappropriate for Malaysia,” he added when speaking at a forum on reforms to the Pardons Board on Tuesday.

Shad, the holder of the Tunku Abdul Rahman chair at Universiti Malaya, noted that the Constitution clearly stated that the King is to exercise the power of pardon on the advice of the Pardons Board. It is not the King’s sole discretion unlike in the case of emergency powers.

Shad also disagrees with the view that pardons are non-justiciable or unsuitable for a court to decide on, saying that there is no such thing as absolute discretion.

An example he provided is that under Article 42(12) of the Constitution, the King or state ruler is disqualified from the chair of the Pardons Board if it involves exercising the power for their partner or children. Shad claimed that in the event the board contravenes that subsection, the pardon may be justiciable in court.

Earlier this month, the Pardons Board halved former prime minister Datuk Seri Najib Razak’s jail sentence to six years and reduced his fine from RM210 million to RM50 million. Najib is serving the sentence after being found guilty of all seven charges related to the misappropriation of RM42 million of SRC International Sdn Bhd funds.

The reduction in the sentence came as a shock to various quarters, raising critical comments and questions about the integrity of Prime Minister Datuk Seri Anwar Ibrahim’s administration’s battle against corruption.

Najib’s lawyer Tan Sri Muhammad Shafee Abdullah subsequently said the former prime minister would file a fresh application for a full pardon.

Shafee claimed that the Pardons Board did not act in accordance with its role in the Constitution. According to him, while the King can hear the views of the board — comprising the Attorney General, Minister of Federal Territories and three others — the decision is to be the King’s, and his alone.

Shafeee said the law makes it clear that the “royal prerogative of mercy” is the sole discretion of the King and is unfettered and non-challengeable in any court, something which Shad disagrees.