The High Court has held that the granting of pardon to convicts in Malaysia is not the exclusive right of the Yang di-Pertuan Agong but an exercise of executive power by the monarch on advice.
Judge Akhtar Tahir said this principle was recognised in the Supreme Court case of Superintendent of Pudu Prison v Sim Kie Chon (1986).
“However, in the same case, the ruling that the granting of a pardon is a ‘royal prerogative of mercy’ is erroneous,” Akhtar said in a written judgment.
Last month, the judge refused an application by the government and Anwar Ibrahim to strike out a lawsuit filed against them by lawyer Mohd Khairul Azam Abdul Aziz over Anwar’s pardon in 2018.
In his 16-page judgment, Akhtar said the King’s exercise of discretion on the appointment of the prime minister might not be justiciable (challenged in the court).
“However, on matters of pardon, where the Yang di-Pertuan Agong acts on the advice of the Pardons Board (and) the attorney-general (AG), this power is justiciable,” he said.
Akhtar said the granting of clemency in Malaysia could not be equated to that of England.
“The granting of pardon cannot be ruled as not justiciable just because it is exercised by the august and high office of the Yang di-Pertuan Agong,” he said, adding it would be a dereliction of duty by the court under the Federal Constitution for refusing to hear the matter.
The judge has fixed three days from March 24 to hear the case.
Anwar has filed an appeal, and the Court of Appeal will hear the matter on Jan 11.
Khairul is seeking a declaration that the pardon given to Anwar is not in accordance with the law as the Federal Territories Pardons Board was not legally constituted.
Akhtar ruled that Khairul had the legal standing to bring the action as “he is a lawyer and therefore has higher right than an ordinary member of the public to question the board”.
The judge said the Federal Territories Pardons Board was legally constituted, but the role of then attorney-general Mohamed Apandi Ali, who was on garden leave, was questionable.
Akhtar said before tendering their advice on any matter, the pardons board shall consider any written opinion which the AG may have delivered thereon.
“The question arises whether there was a written opinion given by the AG in this case. Was he allowed to give a written opinion? Can this giving of written opinion be delegated?” he said, adding that these were matters not addressed in the affidavits.
The judge said the question arose whether the executive could encroach on the power of the judiciary by setting aside the conviction of an accused after the full process of the law.
In early 2015, the Federal Court affirmed Anwar’s five-year jail term over the charge of sodomising his aide, Mohd Saiful Bukhari Azlan.
Anwar told a press conference on May 16, 2018, that the King had granted him full pardon in his three trials – abuse of power, Sodomy 1 and Sodomy 2 – on the basis that there was a “miscarriage of justice”.
He said the pardon was also on the basis that there was a conspiracy to condemn him and “assassinate” his political character. – FMT