Mercy must not rob justice, Karen?

FMT:

Mercy must not rob justice, Karen?

Under the Federal Constitution, mercy trumps justice.




From Ibrahim M Ahmad


Malaysian Bar president Karen Cheah made a stunning claim in a media statement released on Wednesday.

Responding on behalf of the Bar to the Federal Territories Pardons Board’s announcement of a remission in the sentence meted out by the courts to former prime minister Najib Razak, she said:

“While it is true that justice must be tempered with mercy, it is also true that mercy must not rob justice.”

Now, I may not be too schooled in jurisprudence, but I must say, I have not heard the second half of that quote as a principle of law prior to today.

And so, I looked it up.

I was shocked to find that the quote appears to draw its origins from the Book of Mormon, specifically, Alma 42:25 which reads: “What, do ye suppose that mercy can rob justice? I say unto you, Nay; not one whit.”

For obvious reasons, it would not be proper for me to opine on the merits of that quote in a religious context, but I can safely say it is not a principle enshrined in our Federal Constitution. In fact, our constitution appears to go in a different direction.

Our constitution is consistent with the first part of that phrase, which is that justice ought to be tempered with mercy. That is quite clear from the provisions of the constitution itself.

Article 42(1) reads: “The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the federal territories of Kuala Lumpur, Labuan and Putrajaya; and the ruler or Yang di-Pertua Negeri of a state has power to grant pardons, reprieves and respites in respect of all other offences committed in his state.”

Article 40(2) says the King may act in his discretion in the performance of the following functions, namely the appointment of a prime minister, the withholding of consent to a request for the dissolution of Parliament, the requisition of a meeting of the Conference of Rulers concerned solely with their privileges, position, honours and dignities, and in any other case mentioned in this constitution.

One such “other case” may well be the power to pardon granted under Article 42(1), although so far there is no known judicial decision which has said so explicitly.

What is clear though, is that as presently interpreted, the King’s power to grant a pardon is absolute. The function of the Pardons Board is to render advice, which the King is not obliged to accept.

Under the present law, the King’s decision is not subject to judicial review, as Cheah herself concedes in her statement, although it appears she and her fellow Bar Council members think that should not be the case.

“Whether the apex court will change its stance remains to be tested,” she said, almost defiantly.

Unlikely, I would think.

Be that as it may, the constitutional position is that mercy as exercised by the King (and the Malay Rulers and governors) trumps justice.

For that reason, it does not follow that mercy can ever “rob” justice. It simply overrides it.

The Bar president would do well to stick to constitutional principles and avoid the more spiritual references.



Ibrahim M Ahmad is an FMT reader.