COMMENT | The public is widely aware that the Pardons Board recently granted former prime minister Najib Abdul Razak a conditional pardon, allowing him to serve the remainder of his sentence under house arrest.

The central legal question remains: is the Pardons Board’s decision to allow Najib to serve his sentence under house arrest legally enforceable, given that Malaysia lacks specific statutory provisions for such a mechanism? Yes, the question has still overshadowed the Pardons Board's decision hitherto.

This judicial standpoint was robustly clarified by High Court judge Alice Loke in Najib Abdul Razak v Menteri Dalam Negeri. In her ruling, the judge explicitly determined that an addendum order is incapable of execution due to the absence of an established legal framework governing alternative detention under Malaysian law.

Legal experts argue that because Malaysian law lacks a formal mechanism for house arrest, any such order remains legally unenforceable based on the ruling.

The idea that a law cannot be executed if it does not exist is rooted in the foundational legal maxim "nullum crimen, nulla poena sine lege" (no crime, no punishment without a law), widely known as the principle of legality.

As far as I am aware, this cogent principle is a universal principle. The universal importance of this doctrine is demonstrated by its inclusion in major human rights treaties, such as the United Nations Universal Declaration of Human Rights and the European Convention on Human Rights.

Civil society groups like G25 Malaysia and rights groups like Lawyers for Liberty have noted that neither the Prisons Act nor any other current law authorises or provides infrastructure for house arrest.

Be that as it may, is the recent decision by the Pardons Board, which allows him to be put under house arrest legal and enforceable?

Political sentiments

There are two distinct legal perspectives on this matter. One school of thought, popular among many politicians, holds that because the Yang di-Pertuan Agong heads the Pardons Board, any decision made is inherently a royal decree and therefore immune to judicial challenge.

However, this viewpoint is, with due respect, largely rooted in political sentiment rather than solid legal principles. After all, in politics, sentiments trump legal provision.

Conversely, many constitutional experts argue that the king's power of clemency is not absolute. They maintain that it must be exercised strictly within the constitutional boundaries and procedural framework outlined in Article 42 of the Federal Constitution.

This interpretation relies directly on the apex court's ruling in Attorney-General v Najib Abdul Razak and another appeal, which explicitly clarified that the prerogative of mercy remains subject to the procedural limitations embedded in Article 42.

Under Article 42(4)(b) of the Federal Constitution, the Yang di-Pertuan Agong is bound to act on the considered advice of the Pardons Board for the Federal Territories.

This establishes that the monarch's role in the clemency process is strictly dependent on the Board's deliberations and recommendations.

Furthermore, Article 42(9) dictates that the Pardons Board must take into account the written opinion of the attorney-general, while Article 40(1A) reinforces this constitutional framework by mandating that the king accept and act upon the advice tendered by the Board.

To dispel any public uncertainty, the government ought to transparently release the attorney-general's written opinion, which remains inaccessible to Malaysians. Given the high level of public interest in this matter, the government should disclose this information to eliminate any ambiguity.

HANIPA MAIDIN is a former deputy minister of law.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.