Appeals Court strikes out suit questioning Anwar’s pardon

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PKR president Datuk Seri Anwar Ibrahim and the Federal Territories Pardons Board have succeeded in their bid to strike out a lawsuit challenging the pardon granted to him over his sodomy conviction and incarceration.

A three-member Court of Appeal bench unanimously held that the suit which was brought by lawyer Mohd Khairul Azam Abdul Aziz is obviously unsustainable as it did not disclose any reasonable cause of action.

Judge Datuk Has Zanah Mehat who led the Bench said the court agreed with the submissions of the counsel for the appellants that a decision pursuant to an exercise of royal prerogative of mercy cannot be varied or confirmed by the court as it has no jurisdiction to do so.

“Hence, we are of the view that any proceedings in court on such a decision is not justiciable (cannot be questioned in the court).

“The power of pardon is expressly preserved under Article 42 of the Federal Constitution and this power is not limited to just sentence but also conviction,” she said in allowing the appeal by Anwar and the board over the High Court’s dismissal of their striking out application of the suit.

Has Zanah also said the High Court judge had erred in not following precedents by the Apex Court (on the matter of non-justiciability).

On the issue of locus standi of the respondent (Mohd Khairul) in mounting the challenge, she said the process of clemency and the granting of the pardon by the Yang di-Pertuan Agong to Anwar does not in any way attack the respondent personally or legally or his right or interest.

Hence, the judge said, the respondent has no standing or right to question the clemency or advice given to the King or the granting of the pardon to the appellant.

She said the court also found that the composition of the Pardons Board was lawfully and properly constituted in accordance to Article 42.

“We are of the view that the respondent does not disclose any reasonable cause of action against the appellants and therefore the respondent’s claims against the appellants are obviously unsustainable.

“There are merits in both the appeals, and we allow the appeals. The decision of the High Court is thereby set aside and the respondent’s claims against both the appellants are hereby struck out,” she said making no order as to cost.

The other judges who presided in the proceeding which was conducted via Zoom were Datuk Mohd Sofian Abd Razak and Datuk Lee Heng Cheong.

Lawyer Datuk Seri Gopal Sri Ram appeared for Anwar while senior federal counsel Suzana Atan acted the Pardons Board and lawyer Mohamed Haniff Khatri Abdulla represented Mohd Khairul.

On Sept 21 last year, the Kuala Lumpur High Court dismissed Anwar and the Pardons Board’s application to strike out the suit challenging the pardon granted to the former in May 2018 relating to his sodomy conviction and incarceration.

Mohd Khairul, who is also Parti Bumiputera Pesaka Malaysia (Putra) vice-president, filed the suit on Feb 26 last year, claiming that the formation of the board was wrong and illegal under the law and questioned the legality of the pardon granted to Anwar.

According to his statement of claim, Mohd Khairul, or better known as ‘Buzze Azam’ said on Feb 10, 2015, that the Federal Court had affirmed the decision meted out by the Court of Appeal on the PKR leader’s five-year jail sentence pertaining to a sodomy charge against Mohd Saiful Bukhari Azlan, the latter’s former aide.

He said, however, on May 9, 2018, after the 14th general election and the new government was formed, there were several illegal and unconstitutional moves taken to ensure Anwar was pardoned and released from his sentence.

He contended that two days after the formation of the new federal government and before the complete Cabinet line-up was formed, former prime minister Tun Dr Mahathir Mohamed announced that the Yang di-Pertuan Agong had given Anwar a full pardon.

Mohd Khairul claimed that the pardon granted to Anwar contravened Articles 42 (4) and (5) of the Federal Constitution in view of the fact that pardons granted by the Agong should be on the advice of the Pardons Board, which was then not formally formed.

On May 11, 2018, Dr Mahathir announced that the 15th Agong, Sultan Muhammad V, consented to an immediate royal pardon for Anwar, before he (Dr Mahathir) was sworn in as the country’s seventh Prime Minister.