KUALA LUMPUR (Nov 24): The King is bound by the advice of the Pardons Board, even when it comes to issues of mercy, the High Court heard on Monday.
Senior federal counsel (SFC) Shamsul Bolhassan quoted Article 42 of the Federal Constitution (FC), which concerns the power of pardon and stipulates many different safeguards to ensure that "the exercise of the pardoning power is deliberate, accountable and informed by legal counsel”.
"Meetings are presided over by the [Ruler], with the attorney general (AG) or [the AG’s] delegate as a member, and all relevant materials, legal and non-legal, are considered before decisions are made.
"The crucial point here is that there are no separate sessions between advice by the Pardons Board and the decision.
"The [Ruler] is part of the ‘discussion’ process’," the SFC said in his submissions.
On Monday, Shamsul added that whether the supplementary order exists is immaterial, as the question at the moment is whether it is enforceable.
"The order doesn't fulfil requirements under Article 42. That's why we have produced the meeting minutes to show the addendum's validity. The addendum was not discussed," he said.
"Its issuance outside the required procedural framework calls into question its validity under the FC," Shamsul argued.
It has to be noted that although the Jan 29, 2024, meeting minutes were produced and quoted in court, Datuk Seri Najib Razak's counsel Tan Sri Muhammad Shafee Abdullah is opposing its disclosure.
Shamsul added that among the pardons process stipulated under Article 42(8) and Article 42(9) include that the Pardons Board must consider the AG’s written opinion, and that the Ruler "presides" over the board.
"It is evident that these safeguards ensure that the exercise of the pardoning power is deliberate, accountable, and informed by legal counsel, balancing the sovereign’s prerogative with structured oversight," he said.
Countering Shafee's argument, he added that previously, if there are issues of urgency like a death penalty by hanging, the Pardons Board can be convened on short notice.
When asked by presiding judge Alice Loke on Shafee's argument that the addendum doesn't constitute a pardon, but rather a respite, Shamsul said that was immaterial.
Loke: Do you agree house arrest falls [under the category] of respite?
Shamsul: Even if it does, it has to be deliberated. All matters under this Article [42] have to be discussed by the Pardons Board.
Loke has set Jan 5, 2026, to deliver her decision on whether the addendum is valid and can be enforced.