Can Anwar’s pardon be questioned?

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Recently it was reported in the mainstream media that a voter from Port Dickson had filed a case in Court to seek a declaration that DS Anwar Ibrahim is not qualified to contest the by-election to be held on the grounds that the pardon conferred upon DS Anwar Ibrahim was null and void as the Pardons Board when advising the Yang Di-Pertuan Agong was not properly constituted in accordance with Article 42(5) of the Federal Constitution.

The power of the YDP to grant pardon are enshrined under Article 42(1) of the Federal Constitution which states:

“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.”

Under Article 42(5) of the Federal Constitution, the Constitution provides as follows:

“The pardons board constituted for each State shall consist of the Attorney General of the Federation, the Chief Minister of the State and not more than three other members, who shall be appointed by the Ruler or Yang Di-Pertua Negeri; but the Attorney General may from time to time by instrument in writing delegate his functions as a member of the board to any other person, and the Ruler or Uang Di-Pertua Negeri may appoint any person to exercise temporarily the functions of any member of the board appointed by him who is absent or unable to act.”

Henceforth there has been considerable debate as to whether the Yang Di- Pertuan Agong in having exercised his discretion in granting a pardon to DS Anwar Ibrahim can be challenged or reviewed by the Courts.

Power to grant mercy
Rajan Navaratnam
Rajan Navaratnam

According to senior lawyer Dato Seri Rajan Navaratnam:

“This Royal power to pardon or what is also commonly known as the power to grant mercy can be traced back to medieval England where the Monarch had the power and privilege to grant pardons to their subjects as all legal processes were brought in the name of the King. This prerogative was wide and the King could intervene at anytime during the legal process. The power to grant a pardon is the power to grant mercy”.

Rajan said:

“Even in the middle ages, as early as the 14th Century in England, there were differences of opinions about the Monarch’s use of such prerogative power to pardon and its implications on the jurisdiction of the Courts.

In Malaysia this issue of whether a Royal Pardon is justiciable was dealt with in the case of Karpal Singh v Sultan Selangor (1988) 1 MLJ 64 where the Court held that the power to grant a royal pardon is not amenable to judicial review. The Court went on to refer to the dictum of Lord Diplock in the case of Michael De Freitas v George Ramoutar Benny and others (1976) AC 239 where the Lord Diplock said ‘Mercy is not the subject of legal rights. It begins where legal rights end.

However the facts of this case may somewhat be distinguishable from other cases as in this case the Court went on strike out the said application for several other reasons including that the application did not relate to any specific event or facts and that the applicant did not posses the locus standi to file the said action.”

Rajan also said:

“In England, if one was to look at the attitudes of the Courts previously, they were reluctant to entertain applications of this nature as can be seen in the judgment
of Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374. The Courts reasoning for this was that Royal prerogative powers must remain with the Monarch.

These powers belong to the Crown and they are inherent legal attributes, which must remain within that realm of power to pardon. However it would be interesting to note that recent decisions such as R v Secretary of State for the Home Department ex. p Bentley (1994) QB 349 and also in the case of R v Secretary of State for Justice (2009) 3 All ER 265, the Courts in England have shifted their views and are now amenable to review this power to pardon or power to grant mercy.

Pardons can be subjected to judicial review

Other Commonwealth Countries have also held that the power to pardon or what is called mercy decisions can be subjected to judicial review.

For instance in India there are the cases of Maru Ram v Union of India (1981) and the Supreme Court decision of Epuru Sudhakar v Government of Andhra Pradesh where the Supreme Court held that the power to pardon or mercy decisions cannot be mala fide, based on irrelevant factors or arbitrary.

Other Commonwealth countries that have said that the power to grant mercy can be subjected to judicial review are South Africa in the case of Albutt v Centre for the Study of Violence and Reconciliation in 2010 and the Singapore Court of Appeal’s decision in the case of Yong Vui Kong v Attorney General in 2011 but I must emphasize that it must be borne in mind each case must turn upon its unique facts.

One must look at the nature of an application on case to case basis but the general view of the Courts today around the Commonwealth is that such power can be subjected to judicial review. It would be interesting to see how our Court’s will deal with this issue based on our Federal Constitution and within the local context and customs. I think it must also be determined first if whether what is being sought for review was whether it was the subject matter of the power and not the rights or source of such power.”

Is the pardon valid?

The application filed by Noraziah Mohd Shariff is to seek a declaration that the pardon that was granted to DS Anwar Ibrahim cannot be valid as the Pardons Board was not formed in accordance with Article 42(5) of the Federal Constitution in that neither the then Attorney General, Tan Sri Mohd Apandi Ali or the Federal Territories Minister were not present. To this Dato Seri Rajan said:

“It would appear that the applocation filed by Noraziah Mohd Shariff, as reported in the media, the nature of her application is not to review the YDP Agong’s decision in granting a pardon but a review of the Govt’s decision in not having a properly constituted Pardons Board to advice the YDP Agong as required under the Federal Constitution”

“According to Article 40(1A), the Yang Di-Pertuan Agong in exercising his Royal Highness functions under the Constitution, where the Yang Di-Pertuan Agong is to act in accordance with advice, on advice or after considering advice, the Yang Di-Pertuan Agong shall accept and act in accordance with that or such advice. And according to Article 42(4)(b), the powers mentioned in the said Article shall be exercised on the advice of the Pardons Board that is constituted pursuant to Article 42(5) of the Federal Constitution. So this is something that would be dealt with at Court as to whether the Pardons Board was properly formed at the material time.” said Rajan.

Does a pardon overturns the conviction

There has also been some whom had argued that when a person receives a royal pardon, then his or her conviction is overturned as though that person was never convicted at all; to this Rajan  said:

“With the greatest respect, I beg to differ. In my humble view a royal pardon does not overturn a conviction. The power to overturn a conviction can only lie with the Courts. To my mind, a royal pardon of any convicted person of an offence preserves or maintains the conviction but removes or in some instances reduces the sentence only. To me the right to apply for a pardon does not operate as another right of appeal.”

-Mujahidin Zulkiffli