NOVEMBER 13 — Royal prerogatives are legal powers that are used without requiring parliamentary authority.

Parliament is supreme in the United Kingdom. But historically, there were executive, legislative and judicial powers which would have been exercised by a monarch directly. The majority of the powers have, over time, been abolished, delegated to ministers or replaced by statute.

In so far as it has not been superseded by statute, the royal prerogative, or simply the prerogative, is the power which is utilised by the monarch and its ministers and servants in exercising the functions of government. (See Stair Memorial Encyclopaedia of the Laws of Scotland, Volume 7, The Crown, LexisNexis, 1995)

It is a significant source of constitutional law in the UK, which has no written constitution.

Yet it is a “notoriously difficult concept to define”.

There is no single accepted definition, with various definitions appearing to conflict with each other.

The classic definition is by constitutional theorist A.V. Dicey, who described it as “historically and as a matter of fact nothing else than the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the crown .... Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of the prerogative”.

The UK Cabinet Manual calls the prerogative the “residual power inherent in the Sovereign, and now exercised mostly on the advice of the Prime Minister and Ministers of the Crown”.

There are four main types of prerogative power (not including two further categories that are statutory but involve the advice of ministers) namely:

Ø Prerogative power exercised by the King alone;

Ø Prerogative power exercised by the King on the advice of ministers;

Ø Prerogative power exercised by ministers;

Ø Prerogative power exercised by the King in Council (the Privy Council);

(See David Torrance, “The royal prerogative and ministerial advice”, House of Commons Library, August 2025))

The prerogative power exercised by the King alone includes the appointment of the prime minister.

The prerogative power exercised by the King on the advice of the minister includes the royal prerogative of mercy (RPM).

The RPM originates in the ancient power vested in the monarch who had the absolute right to exercise mercy on any subject. The original use of the RPM, it is said, arose as a result of the imposition of the death sentence; the RPM then being used to commute such a sentence to a less draconian form of punishment.

Today, the RPM is the power of the monarch to show mercy towards an offender, by mitigating or removing the consequences that follow conviction for an offence. Its use is reflected in the promise to administer justice "in mercy" in the Coronation Oath.

The RPM is also generally restricted to three exceptional situations:

Ø Special remission, a means of reducing the effect of a sentence once it has been imposed, by releasing a prisoner from having to serve some or all of the remainder of his or her sentence in custody. This applies in four circumstances:

– on compassionate grounds;

– provision of information helping to bring others to justice;

– prevention of escape, injury or death; and

– where the prison authorities have miscalculated a release date or released a prisoner early by mistake;

Ø A conditional pardon, which substitutes one type of sentence for another;

Ø A free pardon, which releases a person from the effect of a penalty or a consequence of a sentence it can be used to change any sentence or penalty imposed upon a person.

In Malaysia, 40 years ago, the Supreme Court in the case of Superintendent Of Pudu Prison & Ors v Sim Kie Chon [1986] considered Article 42 of the Federal Constitution as a reiteration of the RPM exercisable on the advice of the appropriate Pardons Board.

The apex court said:

“[T]he power of pardon or otherwise to mete out clemency is an executive power, and in our Constitution the royal prerogative of mercy is expressly preserved by Article 42 of the Constitution and is recognised by its inclusion in Chapter 3 of Part IV thereof as an executive power.”

The apex court went on to approve the statement by Lord President Suffian who delivered the judgment in the case of in Public Prosecutor v Lim Hiang Seoh [1979] as follows:

“It is our considered view that the power of mercy is a high prerogative exercisable by the Yang di-Pertuan Agong or the Ruler of a State or the Yang di-Pertuan Negeri, as the case may be, who acts with the greatest conscience and care and without fear of influence from any quarter.”

Sixteen years later, the apex court in the case of Juraimi Bin Husin v Pardons Board, State Of Pahang & Ors [2002] reiterated that Article 42 is the RPM in Malaysia, rendering it to be “non-justiciable and provided they are validly exercised in accordance with the applicable law, such decisions cannot be brought before the courts for judicial review”.

So, this much is clear: Article 42 of the Federal Constitution preserves the RPM in Malaysia.

Yet the RPM is a prerogative exercised by the King on advice, not by the King alone.

The High Court may well be called to determine whether the RPM is exercised by the King on advice or by the King alone in the Malaysian Bar’s fresh challenge against the Federal Territories Pardons Board’s decision allowing former prime minister Datuk Seri Najib Tun Razak to serve the remainder of his prison sentence in the SRC International Sdn Bhd case under house arrest.

Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said has rightly said the Bar is entitled to mount such a challenge if it believes it has grounds to question the decision.

Now, what follows immediately after Article 42 is as clear as day as well, and as important.

It is Article 43, which makes provisions on the Cabinet.

Clause (3) of the Article says, in no more than eight words, that the “Cabinet shall be collectively responsible to Parliament”.

As I wrote in “Ministers: Resign or be sacked?" collective responsibility is embedded in the Federal Constitution.

If a member disagrees with the Cabinet’s decision, he or she must still publicly support it. Otherwise, the member must resign.

It is poignant that the RPM and collective responsibility are drafted one after another in the Federal Constitution. These are two British constitutional concepts – one preserved, the other embedded in our supreme law.

If you invoke one, don’t leave out the other.

Articles 42 and 43 are inseparable, like "irama dan lagu, tidak boleh dipisahkan".