AT a news conference held last Friday (April 11), Prime Minister Tun Dr Mahathir Mohamad told reporters that the Yang di Pertuan Agong had indicated that “he is willing to pardon Datuk Seri Anwar Ibrahim immediately”.
Dr Mahathir added: “It is going to be a full pardon, which of course, means that he should not only be pardoned, he should be released immediately when he is pardoned. After that he will be free to participate fully in politics.”
Anwar (now 70 years old) is due to be released on June 8 this year. He began a five-year sentence for sodomy in 2015, a charge he claimed was politically motivated.
Following that surprise announcement by Dr Mahathir, the Malaysian public anxiously wishes to know how soon Anwar will get his full pardon, thus enabling him to re-enter the political arena.
Dr Mahathir had earlier promised that he would be prime minister only for a “short while” after which he will hand over the premiership to Anwar. That can only be done after Anwar has become a Member of Parliament, he added.
Under Malaysian law, the royal prerogative of mercy in contained in Article 42 of the Federal Constitution. Clause (1) of that Article states that “The Yang di-Pertuan Agong has the power to grant pardons, reprieves and respites…” in respect of “all offences” committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
Similar or parallel powers are given to the Rulers of the nine Malay States and the Yang di Pertua Negeri of Penang, Malacca, Sabah and Sarawak.
Article 42 then sets out — (1) the composition of the Pardons Board (Clause (5)), (2) the duty of the Board to meet in the presence of the Ruler, who “shall preside over it” (Clause (8)), and (3) the duty of the Board to tender their advice to the Ruler after considering “any written opinion” on the matter by the Attorney-General (Clause (9)).
Consequently, any move to secure a royal pardon for Anwar must comply with the following procedure as provided for in the Federal Constitution:
a) A Pardons Board consisting of the Attorney-General, the Federal Territories Minister and three other members appointed by the Yang di-Pertuan Agong must be established;
b) The Board must meet in the presence of the Yang di Pertuan Agong, who must preside over it;
c) The Board must consider any written opinion on the matter given by the Attorney-General; and,
d) After considering that opinion, the Board must then “advise” the Yang di-Pertuan Agong.
The question is whether the Yang di-Pertuan Agong is required by law to heed the advice of the Pardons Board? Must he listen and heed the recommendations of the Board? The answer to that has long been given by our courts.
The issue of royal pardon was raised in the case of Karpal Singh v Sultan of Selangor (1985) 1 MLJ 64, where Abdul Hamid (CJ Malaya) had to consider the submission by the applicant (Karpal Singh) that the respondent (Sultan of Selangor) must, before arriving at his decision whether to grant any clemency or not, consider the advice of the Selangor Pardons Board before “applying his mind” to the petition for clemency before him.
In his suit against the Sultan of Selangor, Karpal had sought a declaration that the statement made by the Sultan (in which he stated that he would not pardon any person convicted of drug trafficking in the state) was in violation of Article 42 of the Federal Constitution. Karpal had argued that by saying so the Sultan had effectively pre-empted any petition for clemency, “thereby resulting in the negation of a constitutional right”.
In dismissing the suit on the grounds that it did not disclose any reasonable cause of action and that the issue raised by Karpal is not justiciable, Abdul Hamid referred to Sim Kie Chon’s case (1985) 2 MLJ 385 where the court held in that case that the power to grant a royal pardon “is a power of high prerogative of mercy” which is not susceptible or amenable to judicial review.
The learned judge added that in that case, although the Pardons Board had tendered advice to the Yang di-Pertuan Agong, the latter had exercised his power in accordance with Article 42(1). The law does not make it mandatory for a Ruler or the Yang di-Pertuan Agong to act on the advice of the Pardons Board.
Abdul Hamid also cited Lord Diplock’s dictum in an old English case that “mercy is not the subject of legal rights. It begins where legal rights end”.
To sum up, existing case-law shows that the prerogative of mercy (the granting of a royal pardon) is left to the discretion of the Yang di-Pertuan Agong (in the Federal Territories) and the Malay Rulers (in their respective States). Their decisions (whether to grant pardons or not to any individual) cannot be questioned in courts nor are they bound to accept the advice or recommendations of the Pardons Board.
However, the antecedent procedure (establishing the Board, getting the Attorney-General’s written opinion, holding a meeting of the Board presided by the Agong or Ruler, tendering its advice) must be complied with as stipulated in the Federal Constitution.
Salleh Buang formerly served the Attorney-General’s Chambers before he left for practice, the corporate sector and, then, the academia.