With so much confusion over pardons, Selangor is publishing a booklet to explain the functions of the state Pardons Board.
NEVER has the role and functions of the Pardons Board ever come under such intense spotlight.
A controversy is continuing over whether the previous Yang di-Pertuan Agong did table an addendum to the Federal Territories Pardons Board in a bid to place Datuk Seri Najib Razak under house arrest.
Whether there are provisions in the Federal Constitution for a house arrest is itself being debated.
Depending on who you listen to, there has been much contradictory interpretation, as expected of lawyers.
As of now, the issue is whether the addendum is valid as it is said to have not been brought up at the Pardons Board meeting.
As the issue rages on, Selangor has taken steps to ensure the functions of the state Pardons Board are clearly understood.
A booklet has been prepared and is in the midst of being printed.
The Selangor Pardons Board is headed by His Royal Highness Sultan Sharafuddin Idris Shah.
The other members include the Mentri Besar, Attorney General and three other members.
The state legal adviser is sometimes invited to attend such meetings to give his views.
The state board meets at least twice a year but Tuanku has made it a practice to deliberate four times.
But it is important to point out that the Sultan can convene a meeting at any time.
“Tuanku is particular that the appeals should not be allowed to pile up as these involve the lives of people, even though they may be prisoners,” one official said.
The booklet, which will be distributed widely, is aimed at allowing the people and state officials to understand the procedures clearly without any form of political slant.
In Selangor, an accused person who has been sentenced by any court in the state is entitled to file a petition for clemency from the Sultan of Selangor.
The time frame for inmates to submit a petition for clemency is generally based on the category of the cases, said an official.
So, how often can a person file his or her appeal for clemency?
Regulation 54 of the Prisons Regulations 2000 provides the “Officer-in-Charge of prison to prepare a report on every prisoner for clemency after completing four, eight, 12 or 16 years of his sentence and every subsequent year thereafter”.
Regulation 113, however, allows the person to file the petition as soon as practicable after the conviction and the appeal process in court ends.
The second appeal can be made after serving three years of the sentence.
Subsequently, pardons petitions may be filed every two years.
In the case of a prisoner sentenced to death, as provided for under Regulation 114, an inmate may submit a petition for clemency to the Sultan immediately after the Federal Court confirms the conviction and death sentence. No specific time frame is prescribed.
Under the Federal Constitution, the King has the power to grant pardons in respect to offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
The Federal Constitution also grants the Sultan of Selangor, being the Ruler of the state of Selangor, the authority to grant a pardon, reprieve or respite for offences committed within the state.
In line with the authority of the Sultan of Selangor under the Selangor state constitution, it is stipulated that the Sultan may grant pardons, stays, and relief for offences committed within the state of Selangor (excluding offences tried by military courts).
The authority of the Sultan of Selangor is limited to clemency petitions from inmates in Selangor.
State legal officials said there is currently no provision under the Selangor constitution related to house arrests or granting the Sultan the authority to designate a house or building as a prison.
One legal expert said a house arrest does not mean serving the sentence in one’s own residence with family members.
“From a legal standpoint, the premises would need to be gazetted as a prison first for a house arrest.
“There will be prison wardens present and likely an appointed prison cook to ensure safety,” he said.
Can the Sultan of Selangor issue an addendum?
There is no interpretation of the word “addendum” provided for under the constitution of Selangor or under the Interpretation Acts 1948 and 1967.
The word “addendum” simply means “something to be added, especially to a document; a supplement”.
But here’s the bottom line of the clemency process in Selangor – any appeal must go through the board. Full stop.
The Selangor constitution clearly states that the Sultan, in exercising the power of clemency, must act on the advice of the state Pardons Board.
However, the Sultan has the prerogative to either accept the advice or otherwise or in a simple and plain language – the Sultan has the final say.
All clemency petition applications from inmates must be brought to the state Pardons Board meeting to be considered.
Any decision made by the Sultan during the meeting will be documented in the minutes by the Secretariat of the state Pardons Board.
If Tuanku has anything to add after the meeting, he has to wait for the next meeting.
The procedures are simple and clear.
The Sultan of Selangor always emphasises that the prisoner himself must apply for pardon to show that he is serious about wanting Tuanku to pardon him. Not just via his lawyer or a family member.
By logic, the prisoner has to be remorseful and make an admission of guilt before seeking a pardon.
The decision of His Royal Highness to publish the booklet is certainly a commendable way of making it a learning process for everyone. It looks like Selangor is the first to take this step.
